The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.
- Justice Anthony Kennedy, in Citizens United v. FEC (April 2, 2014).
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Indeed, today’s reality is that the voices of “we the people” are too often drowned out by the few who have great resources. ... Ordinary citizens recognize this; they know what is going on; they know they are not being included. It breeds cynicism and distrust.
-United States District Court Judge Paul A. Crotty, in New York Progress and Protection PAC v. Walsh (April 24, 2014).
The Supreme Court’s recent decisions in McCutcheon v. FEC, striking down aggregate campaign contribution limits, and its 2010 decision in Citizens United v. FEC, giving corporations the right to make unlimited independent political expenditures, have been widely criticized for declaring that the only permissible goal of campaign finance regulation is the prevention of actual or apparent quid pro quo corruption and that “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties . . . does not give rise to such quid pro quo corruption.” In so doing, the Supreme Court put the political interests of the wealthy above the interests of average citizens. Now, the outrage has gone beyond the general public.
On April 24, United States District Court Judge Paul A. Crotty, who was appointed to the bench by President George W. Bush, reluctantly struck down New York’s limits on contributions to SuperPACs in New York Progress and Protection PAC v. Walsh, explaining that the “Court is bound to apply this definition ‘no matter how misguided . . . [the Court] may think it to be.’”
It is not at all common for a lower court judge to make his disagreement with the Supreme Court the central theme of an opinion, so attention should be paid.
Judge Crotty and the Supreme Court do agree about the general influence of money in politics. As Judge Crotty puts it, “money is normally contributed in the hope—indeed the expectation—that the contribution will affect the candidate’s votes or actions. That expectancy creates an implied promise to be fulfilled by the candidate once in office.” In McCutcheon, Chief Justice Roberts, writing for the majority, also acknowledges “the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”
But the agreement ends there.
While acknowledging that it is not always clear when “the act of contributing to a candidate become[s] an attempt at ‘corrupt’ influence,” Judge Crotty knows “[o]ne thing is certain: large political donations do not inspire confidence that the government in a representative democracy will do the right thing.” Judge Crotty goes on to quote Justice Breyer’s dissenting opinion in McCutcheon: “Corruption breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives. . . . Where enough money calls the tune, the general public will not be heard.” Or as Judge Crotty, himself, put it, “In other words, he who pays the piper calls the tune.”
Indeed, today’s reality is that the voices of “we the people” are too often drowned out by the few who have great resources. . . . In today’s never ending cycle of campaigning and lobbying; lobbying and campaigning, elected officials know where their money is coming from and that it must keep coming if they are to stay in office. Ordinary citizens recognize this; they know what is going on; they know they are not being included. It breeds cynicism and distrust.
In contrast, in Citizens United, Justice Kennedy claims that “ingratiation and access . . . are not corruption” and “[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Building on this theme, Chief Justice Roberts asserts in McCutcheon that the feeling of gratitude and the access bought by large contributions “embody a central feature of democracy.”
At the core of these two very divergent views of democracy are two very different concepts of who our elected officials should represent. In his opinion, Judge Crotty explains “this is not to say that all influence that people seek is corrupt. . . . Influence resting upon public opinion is a vital aspect of our representative democracy.”
In McCutcheon, the Supreme Court also asserts that “a central feature of democracy” is that “constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
The difference is that Judge Crotty is talking about our elected representatives listening to the average person, and believes that “influence bought by money is no different than a bribe[.]”
On the other hand, throughout McCutcheon, when the Supreme Court talks about the right of “constituents” to influence elected representatives being central to our democracy and protected by the First Amendment, it is only talking about the right of the wealthy to use their money to buy influence. The ease with which the Supreme Court equates “constituent” with large donors speaks volumes about its conception of who should have the most influence in a democracy.
In the end, Judge Crotty’s view is clearly born of real-world observation and experience. What Judge Crotty understands—and what the Supreme Court does not—is that the ability of the wealthy to buy favoritism and access from elected officials represents a defect in our democracy and not a positive attribute of which we should be proud.
There is no question that the Constitution gives the Supreme Court the power to declare what the law is. But the Supreme Court cannot change the truth that underlies Judge Crotty’s respectful protest. Striking down laws aimed at curbing the appearance of corruption arising from the ability to buy access and influence through large contributions undermines core First Amendment and democratic values. As Judge Crotty fears, the Supreme Court is paving the way for us to become a country governed with the consent of a relatively few wealthy donors and not with the consent of the governed.