Overrule the Supreme Court on campaign finance reform

[n2doc]

By Christopher J. Peters
4:45 p.m. EDT, July 5, 2011

Democracy has been called a government of laws, not of men; but who makes the laws that govern democracy? Not you, me, or our fellow citizens — at least, not according to the five-justice conservative majority on the Supreme Court, who continue to chip away at our authority to govern ourselves. We must reclaim that authority soon or risk losing it forever.

On June 27, the five conservative justices struck down an attempt by the state of Arizona to preserve fair and meaningful participation in its elections. Arizona's citizens recognized that the need to raise huge quantities of private money distorts political campaigns and thus distorts government. So in 1998, they passed an initiative that provided public funding for candidates in state elections and increased that funding in increments to match spending by a candidate's privately financed opponent. But in Arizona Free Enterprise v. Bennett, the five-justice majority held that this matching provision violates the First Amendment.

The Bennett decision extended the court's unfortunate 2010 Citizens United v. FEC ruling, which invalidated longstanding limits on campaign spending by corporations and unions. These and other recent cases suggest that the court's conservative majority is inching toward a vision of "separation of campaign and state" — an anything-goes model of elections in which the people lack the authority to regulate the terms of their own democracy. But this vision reflects faulty logic, bad constitutional interpretation and disastrous democratic theory.

"Separation of campaign and state" is faulty logic because it assumes that the only remedy for abusive campaign regulation is no regulation at all. The worry professed by the court's conservatives — that campaign laws will be used to protect incumbents — is a legitimate one; but it applies equally to election regulations the Constitution clearly permits, such as laws determining the time, place and manner of elections. (Tellingly, in these contexts the current court has been far less solicitous of the need to prevent incumbent self-dealing.) The danger of self-dealing by incumbents is a reason for consistent, careful judicial scrutiny of campaign regulations — not for denying the authority to regulate campaigns altogether.

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http://www.baltimoresun.com/news/opinion/oped/bs-ed-campaign-finance-20110705,0,786500.story