Opinion, Berkeley Blogs

Campaign Finance and the Lessons of 1776

By Mark Peterson

painting of King George III

$1776. That’s the amount that Alabama businessman Shaun McCutcheon, the plaintiff in the campaign finance case recently decided by the Supreme Court, wanted to donate to every single political candidate he supported in the 2012 elections, but he was thwarted by then current limits on donations. The court decided in McCutcheon’s favor and the limits are now gone.

Let’s follow the plaintiff’s lead and think about the meaning of “1776” with respect to the fundamental issues at stake: individual liberty versus the people’s collective ability to have a legislature that represents their interests.

painting of King George III

By the time American colonists declared independence from Britain in 1776, they were convinced not merely that they had no representation in Parliament, but that they could not be represented in Parliament. The colonies had never been entitled to elect members of the House of Commons. But by 1776 they realized that they did not even want to send representatives to Parliament, because doing so would not and could not remedy their grievances. Why not?

The answer was twofold. First, it was clear that the several hundred members of the House of Commons, elected from various districts throughout Britain, knew next to nothing about conditions in the colonies. Adding a few token colonial representatives would not change Parliament’s overall lack of concern for the king’s American subjects. To represent a people, a legislative body must know and care about their interests, and act for the people’s benefit. Parliament had repeatedly proven its inability to do that for America.

Second, American colonists believed that Parliament had become fundamentally corrupt. By corrupt, they did not mean the narrow form of illegal “quid pro quo” corruption that Chief Justice Roberts singled out in his majority report in McCutcheon v. FEC (although members of Parliament, like all politicians, were certainly susceptible to that kind of influence).

Rather, they meant that Parliament as a whole was rigged. It was in the pocket of Britain’s oligarchs – the king, landed aristocrats, titans of commerce – who manipulated the system to get exactly the results they wanted. By 1776, electoral districting in Britain was so antiquated that ghost towns like Old Sarum (population: zero) still had the privilege of “electing” a member of the House of Commons, while enormous new cities like Manchester elected no M.P.s at all.

With a limited number of enfranchised voters throughout the nation (120,000 in a population of 7 million), well-spent cash could easily capture elections and create majorities in Parliament consisting of the oligarchs’ loyal supporters. There was nothing illegal about it. This was systemic corruption. Parliamentary majorities “represented” nothing more than the oligarchs’ interests, not the actual population of Britain.

In the face of this hopeless situation, with an unrepresentative Parliament insisting on its sovereign right to legislate for the colonies, and with the king already employing soldiers to enforce this right, colonists were left with no alternative. They renounced their allegiance to Great Britain, and began to reconstitute themselves as independent states, committed to embodying the people’s will in fairly elected legislatures where representatives would know the interests of their constituents. The Constitution of 1787 embodied the same principle in the U.S. House of Representatives.

U.S. Constitution

The Constitution attempts to balance the cherished principles of our political tradition, but these principles can be mutually contradictory. The First Amendment rightly protects the free exercise of fundamental liberties against legislative encroachment. But it has been obvious from 1776 onward that an individual or group exercising its liberties can sometimes run roughshod over the rights and opportunities of others.

That is how, through perfectly legal means, Britain’s oligarchs corrupted the House of Commons. It’s also why monopolies have always been anathema in American political economy. Monopolies concentrate too much economic power in the hands of too few people, and Congress and the courts have repeatedly struck them down.

In McCutcheon v. FEC , the Roberts Court defends a narrow and curious reading of the First Amendment that equates money with speech, while ignoring the need to balance the liberty to spend against the rights of all people to a voice in their representation. In conjunction with the decision in Citizens United that equates corporations with people, the Court will now allow virtually unlimited liberty for persons or corporations to pour money into American elections at every level, threatening to allow a small number of very rich individuals not just to influence, but to monopolize political campaigns.

With this decision, the Supreme Court makes it obvious that the people of the United States now face a situation much like that of 1776. An antiquated constitution, adapted and interpreted piecemeal across the centuries, has left us with a system of representation that mocks the ideals it originally intended to enshrine.

Editorials appearing in the wake of McCutcheon v. FEC have expressed fear for the future of our democracy, but the fact is that we’re way past that. Our system is already rigged. With carefully gerrymandered electoral districts and heavily managed primaries where few voters turn out, the oligarchs already get their way, including a House of Representatives majority that received far less than half the votes cast for House candidates. McCutcheon v. FEC , the latest in a long train of judicial decisions by the Roberts Court going back to 2006, has made this condition unmistakable, just as it was in 1776 when the Declaration of Independence enumerated the “long train of abuses” that pushed the colonies to “throw off such government.”

The solution today is the same as in 1776: “throw off such government.” But given the escape clause of Article V to our Constitution, which Britain’s informal constitution lacked, our rebellion need not and should not be violent.

We must amend the Constitution to clearly separate the interests of money from those of the people through direct public financing of campaigns. The Supreme Court has now made it clear that only a constitutional amendment can fix this problem and restore a reasonable balance between individual liberties and the rights of all to an audible voice in representative self-government.