During the Gilded Age of the late 19th century, corruption in government and industry was so common and blatant that it generated widespread revulsion in the public. It led to the Progressive Era, when remedies were adopted that turned out to be less than successful, such as initiative, referendum and recall.
Today, the initiative petition process in California is a national joke and its use here in Nevada has effectively been limited to special interests. The Watergate scandal in the 1970s led to campaign finance “reforms” that gave us the fine system we have today, in which campaign contributions and bribes are difficult to distinguish from one another.
The U.S. Supreme Court is putting the nation in danger of another form of reform that could do some real damage to our system of government.
In 1976, the court ruled in Buckley v. Valeo that money is speech. In 2010, the court in Citizens United v. Federal Election Commission upheld a concept it originated in 1819 that corporations are persons and thus entitled to First Amendment protection in political expression, giving corporations the right to spend all they want in campaigns, overwhelming the speech of all individuals.
Then this month, the court in McCutcheon v. Federal Election Commission invalidated aggregate limits on campaign contributions, allowing the rich to pour unlimited sums into campaigns.
In this last decision, the court could not assemble a majority of five behind the rationale for its action. Just four members agreed on the opinion, with a fifth (Clarence Thomas) concurring in the result but not the reasoning. The four-person opinion was written by Chief Justice John Roberts and it said some remarkable things.
“This court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption,” Roberts wrote. “We have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equalize the financial resources of candidates …’ The First Amendment prohibits such legislative attempts to ‘fine tune’ the electoral process, no matter how well intentioned.”
If this becomes precedent, it will be impossible for the public through its Congress to do anything to make elections fair.
Roberts: “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties. And because the government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the government may not seek to limit the appearance of mere influence or access.”
Over the course of its rulings since 1976, the court has systematically reduced the ability of the nation to protect itself from the power of unlimited money in politics. It is creating a situation in which the only way remaining to prevent elections from becoming commerce is to carve out exceptions in the First Amendment. That’s the last thing most people want. But it’s becoming the only remedy or reform the court will allow.
Dennis Myers is a veteran and Nevada journalist.