It's Time to Overrule the Supreme Court
by Jeff Milchen

December 16, 2003

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I’m two states removed from California, and I don’t know who I’d have supported in San Francisco’s recent runoff election for mayor. But I know this: democracy lost.

Gavin Newsom won by a 53% to 47% margin, while his $3.8 million budget dwarfed that of  his opponent, Matt Gonzalez, by a 10 to 1 margin. Gonzalez won about nine times as many votes per dollar spent and even Newsom’s supporters would be hard-pressed to deny that money made the difference.

Though the race officially was non-partisan, Newsom is a Democrat and Gonzalez is Green. Democratic celebrities Bill Clinton and Al Gore stumped for Newsom, and the party brought in resources that overwhelmed Gonzalez’ volunteer-driven campaign. Ironically, Gonzalez won support from the majority of Democratic voters, while Newsom was the clear favorite of Republicans (and was endorsed by the Republican party previously).

Mr. Newsom obviously was a strong candidate and his fundraising presumably was entirely legal, but that doesn’t mitigate the damage done to citizens whose only voice in the election was their vote. Wealthy donors got their man into office because they were able to vote with their dollars, too. That’s plutocracy, not democracy.

In a decision fittingly announced just hours after San Francisco’s election was decided, a U.S. Supreme Court majority made clear that plutocracy was fine by them. The Court upheld the doubling of limits on direct “hard money” contributions to candidates for federal office authorized by the 2002 Bipartisan Campaign Reform Act (BCRA).

Yes, the Court upheld some limits on corruption, but the ruling also demonstrates the justices’ blind eye to the constitutional principle of “equal protection.” The San Francisco election offers compelling evidence of why BCRA fails to fundamentally strengthen democracy.

Indeed the BCRA’s doubling of hard money limits will further segregate Americans into distinct classes of democratic participation. One group consists of the majority of us who can express our preferences with our votes or volunteer time. The other class is those wielding real power--the ability to finance the bulk of candidates' campaigns.

The BCRA does not empower average Americans to create choices or alter this class system—it worsens the divide.

Just one in one thousand adult Americans make hard money contributions of even $1,000, yet candidates for the 2004 presidential nomination have raised more than 80% of their individual investments from donors of at least $1,000. How many of them do you know?

Wealthy individuals may each invest at least $4000 in a single candidacy by writing separate checks for $2000 contributions to a candidate’s primary and general election warchests. The power of those .1% of citizens making thousand-dollar investments is further amplified by their ability to “bundle” contributions in the name of family members, co-workers or employees to offer thousands of dollars to a candidate in a lump sum, rendering the limits as rigid as a rubber band. Any skeptics need merely look at the Bush 2004 reelection campaign, which requires investors to amass a $200,000 bundle to be dubbed a “Ranger” with serious influence.

This bundling also lends itself to intimidation, as with the recently uncovered documents revealing the strong-arm tactics of drug giant Bristol-Myers Squibb. Four different executives confirmed they were pressured with thinly-veiled threats by their bosses to send $1000 checks to George Bush--in their spouse’s name as well as their own.

And those investors are not a representative sampling of Americans. According to a study by the Joyce Foundation, 80% are males from households whose annual income exceeds $100,000. More than 95% are white. It should be no surprise how closely Congress reflects those distinctly unrepresentative demographics.

But does this really determine election outcomes?

Unquestionably. Incumbents and higher-spending candidates win almost all federal races--and the same person usually is both. House incumbents won 97% of contests in which they ran in 2002, and the highest-spending candidate won 95% of House races and 75% of Senate races.

So what do we do?  The first step is to identify the roots of the problem. In this case, it’s the Supreme Court. With its 1976 Buckley v. Valeo decision, the Court leaped over logic to declare that spending money to influence elections was a form of "free speech" protected by the First Amendment and largely beyond democratic control.

The remedy is daunting but simple: reversing the baseless and profoundly anti-democratic precedent of the Buckley ruling. This would allow the common-sense distinction between speech as the Constitution intends--expressing one's opinion--and using economic power to overwhelm the voices of other citizens.

Various forms of public campaign financing certainly are part of the solution, but democracy cannot coexist with a legal precedent of money equaling speech.

The San Francisco election once again demonstrated money overpowering democracy, but it was no aberration. Citizens who value the principle of one person, one vote should demand a Constitutional Amendment to restore what the Supreme Court has broken—fair elections and our democracy.

Jeff Milchen directs ReclaimDemocracy.org, an organization devoted to realizing the promise of one person, one vote and restoring citizen authority over corporations. If your organization would like to learn more about joining a coalition effort to revoke the money=speech precedent, please contact them. © 2003 ReclaimDemocracy.org.

Other Articles by Jeff Milchen

* The Fiction of Free Trade 




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