It’s Time to Overrule the Supreme Court

Overturning Buckley v. Valeo is an essential step toward enabling a democratic republic

By Jeff Milchen
Published July 18, 2006

 The U.S. Supreme Court once again made itself a roadblock to political equality last month when it struck down a Vermont law that attempted to protect the political voice of average citizens.

Vermont ‘s Act 64 was passed in response to growing public concern that money could dominate election outcomes and inordinately influence state office-holders. The act limited how much money a single wealthy person could invest in candidates for state elected offices and capped overall spending by those candidates.

In its Randall v. Sorrell opinion, the justices told legislators and reform advocates, who possess first-hand experience of political corruption, that their concerns are merely theoretical. The justices struck down spending limits and, while not forbidding contribution limits entirely, made themselves the arbiter of what dollar amount is acceptable. They declared Vermont ‘s $200-$400 limits “unconstitutionally low,” even for a tiny state of just over 600,000 citizens (and where $200 can buy multiple TV ads across the state).

The Court effectively prohibits states from leveling the political playing field between the wealthy citizens and everyone else. Though the ruling does leave room for ever-more cautious limits that might win the court’s blessing, sensible people don’t keep playing a rigged game.

The court clearly is interpreting the Constitution in a way that prevents representative democracy, so it’s up to citizens to rewrite the rulebook, not keep pleading their case to a biased referee. That rewrite is amending the Constitution itself to make clear that First Amendment-protected speech is the expression of ideas, not the purchase of political power.

With its ruling in Randall, the court is supporting the segregation of Americans into two distinct classes, just as it did when it twice supported blatantly discriminatory poll taxes that disenfranchised black citizens (and some poor whites) for nearly a century after the 15th Amendment officially enabled them to vote in 1870.

Today, one political class is the overwhelming majority — we express our preferences with our votes or volunteer efforts. The other class consists of those wielding real power — the ability to finance the bulk of candidates’ campaigns and effectively “set the menu” of candidates from which the rest of us may choose.

The justices’ motivation for treating money as speech may not be racist, but the impact is. Major political donors are fully unrepresentative of Americans. According to a 1996 study by the Joyce Foundation, eighty percent of people investing $200 or more in political candidates are males from households with annual income exceeding $100,000, and about 95 percent are white.

Not surprisingly, Congress closely mirrors those distinctly unrepresentative demographics.

When you get into the real money — donations of $1,000 or more — the picture is skewed even further. Just one in a thousand adult Americans contributed $1,000 or more to any candidate in the last election, yet candidates for the 2004 presidential nomination raised more than 80 percent of their individual investments from these elites. And people wonder how Congress can consider repealing inheritance taxes for multi-millionaires while plunging us ever-deeper into debt.

The power of that 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 many thousands of dollars to a candidate in a lump sum. In George W. Bush’s 2004 presidential campaign, bundling $200,000 was the measure by which donors gained serious influence.

In its Randall ruling, the Supreme Court ignored a record of political corruption, perceived corruption and the disempowerment of average citizens. The majority even claimed Vermont ‘s contribution limits endangered the ability of challengers to compete effectively against incumbents, despite overwhelming evidence that contribution limits enhance electoral competition.

This is not to say Vermont ‘s Act 64 was great law. Even reformers voiced concerns that some elements were too restrictive. But the court’s overreach in striking the entire law was judicial activism in the extreme.

As many individuals and organizations focus on influencing the outcome of next year’s Congressional elections, the need is greater than ever for more energy to shift from who gets elected to how we choose our representatives. Public campaign financing efforts continue to spread and make more elections competitive. But when it comes to spending limits, decades-long efforts to find niches in the law have hit a dead end.

Until we fundamentally alter the financing of elections and amend the Constitution to overrule the Supreme Court’s anti-democratic doctrine, members of Congress will continue to resemble and represent the elites who put them in office, not the diverse range of citizens that comprise the United States of America .

Jeff Milchen directs The organization filed a friend-of-the-court brief on behalf of Vermont in Randall v. Sorrell. A similar version of this article was first published by New America Media.

Draft language to overturn the Court’s “money = speech” creation via Constitutional Amendment

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