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Introduction: Problems in the Existing Jurisprudence

This year marks the fortieth anniversary of the Supreme Court’s seminal money‐in‐politics case, Buckley v. Valeo —an anniversary that coincides with a presidential election that promises to be the most expensive in U.S. history and one dominated by big money. At the same time, the death of Justice Scalia presents the country with an unexpected vacancy that could change the balance of the Court. Now is an especially apt time to examine the role of the Justices in creating our current approach to money in politics and to propose and evaluate transformative alternatives.

The overwhelming majority of Americans are unhappy with the current political system, viewing it as corrupt. Today, wealthy interests and individuals are able to translate wealth into influence and thereby distort policy. Empirical evidence demonstrates that the wealthy have different policy preferences than the broader public, and are more likely to succeed in getting those policy preferences enacted into law. Candidates spend their time soliciting large contributions from a wealthy, disproportionately white, “donor class” who constitute less than 1% of the population, wasting time that could be spent more productively and simultaneously developing a skewed impression of the views and values of the people they serve. Candidates who run for office are likely to be wealthy and white; it is difficult for working‐class candidates to amass the resources they need to compete with opponents backed by big money.

The Supreme Court is largely responsible for this situation. Its 1976 decision in Buckley struck down limits on campaign spending, starting down the path of equating spending with speaking. At least as damaging as Buckley’s facile assumption that because speaking costs money, limits on spending are tantamount to limits on speaking, however, was its blindness to the constitutional values other than free speech at play in the campaign finance context. In Buckley, appellees argued that several compelling government interests justified the 1974 amendments to the Federal Election Campaign Act, including the interest in equalizing, as far as practicable, the relative ability of all voters to produce political outcomes they favor. The Buckley Court disagreed, recognizing preventing corruption, or its appearance, as the only government interest to justify limits on big money in politics and explicitly rejecting the equality interest as “wholly foreign to the First Amendment.”

This narrow, “anticorruption” framework has guided money‐in‐politics decisions for the past forty years, with anti‐democratic results. The framework ignores the fact that large differences in wealth or access to wealth give some people dramatically more influence on politics than others. As a result, the Justices have relied on Buckley to take a slew of common‐sense policy reforms off the table, such as limiting how much individuals and candidates can spend on elections, banning corporate or lobbyist contributions, limiting the total amount a single individual can contribute in any given election cycle (“aggregate contribution limits”), or granting extra public financing to candidates who face big spending. The Roberts Court has used Buckley’s narrow conception of corruption to invalidate practically all of the campaign finance regulations that have come before it.

The vision of democracy implicit in the Court’s money‐in‐politics cases is neither faithful to the Constitution, nor normatively attractive. Perhaps for these reasons, it is also in tension with the Court’s rulings in the voting and districting arenas. As David Schultz articulates in his contribution to this Issue, lurking in the Court’s money‐in‐politics jurisprudence is a vision of a neoliberal, “free market democracy.” In cases like Buckley and Citizens United, the only democratic value recognized is the First Amendment, which is reduced to free speech, then further reduced to the freedom to spend money in a marketplace that is “as free as possible, limited only by the need to prevent quid pro quo corruption.” But simply saying the First Amendment always wins is not an adequate or complete vision of American democracy. The Court has failed to balance the freedom to spend money on elections with other vital democratic values, such as equality, effective participation, representation, or pluralism. Some of these competing values have been recognized in other democracy‐law cases: from the One Person, One Vote cases, which were guided by political equality; to evaluating laws preventing campaigning around polling places, which balanced freedom of expression and the electoral integrity; to the White Primary cases, which balanced associational rights of political parties with equal protection rights of individuals.