New York Times LTE: Campaign Finance and the Social Contract

Gavel resting on stack of money

There is a deep connection between the old news about the rapidly growing income and wealth gap in this country and the Supreme Court¹s decision (McCutcheon v. Federal Election Commission) on Wednesday, April 2 ruling unconstitutional the longstanding (forty years) and regularly reaffirmed aggregate limits on how much an individual can give to all federal candidates and their parties in any election cycle.

Until that decision, an individual could not get more than approximately $124,000 into the hands of federal candidates and their parties.  Now – notwithstanding the so-called base limits that limit how much an individual can contribute directly to any one candidate  ($2,600) or party committee ($10,000 or $32,400, depending on the type of committee)—that  sum is $3.6 million, and  with artfully selected PACs (political action committees) potentially limitless.  That’s one line.

The other line is this.  It has always been the case in this country that there have been rich people - quite a few of them.  These were people who could afford to send their children to private schools and colleges, they had nice houses - maybe a vacation a home - perhaps a housekeeper. They lived very well.  These were successful lawyers, doctors, business executives.  It was a stratum that ambitious, well-educated, hardworking people could reasonably aspire to enter.   They certainly led different lives from ordinary middle class and working class people, but they lived on the same planet.

Their lives might intersect at church, in town halls, at the polling booth.  When they travelled they might or might not travel first class, but they would be on the same plane or train, they might even occasionally meet the super rich at a Sotheby¹s auction as part of a rare splurge on a silver wedding anniversary gift.  They might have a Cadillac instead of a Ford, but not a chauffeur to drive them.

And then there were the super rich - Rockefellers and Whitneys, movie stars and the like.  But there were so few of them that they were like exotic birds: they did not make up part of the same world.

As to everyone else the talk we hear today - from Obama and DiBlasio - about the two cities and  taxing the rich to narrow the wealth gap in that time would have seemed (did seem) a kind of vindictive politics of envy, that would  as soon bring down the better off as raise up the less well-off.  The politics if not of Pol Pot than Francois (“I detest the rich”) Hollande.

And who of these ‘middle-class millionaires’ would dream of spending - or could afford to spend - $3.6 million dollars on federal campaigns every two years.  They were rich, but not that rich.

Yet with today’s income distribution there are in the United States many persons with personal wealth of over half a billion dollars and quite a few billionaires.  Those people do indeed inhabit a different planet from the rest of us.  They travel on private planes, never wait for a cab, have private tutors for their children, and ­well, you get the idea.

And for them, the Koch brothers and Sheldon Adelsons and George Soroses, contributing $3.6 million dollars every two years in federal elections is literally inconsequential.  Indeed those sums are so inconsequential that they are just added on to the literally limitless amounts they can and do spend on Super PACs, so called independent expenditures.

If these exotic fauna were something we just glimpsed in the pages of glossy magazines or maybe occasionally in a distant box at the opera, well (unless you are eaten by envy, which most of us cannot bother to be) they just add to the spectacle of life.

But if we must be governed by those whom the billionaires choose to fund, then the social contract really has been ruptured.  And it is only the five Polyannas on the Supreme Court who would have us believe that those who have unlimited cash to spend on elections will not call the tune.

Justice Scalia famously said in another case that this is not buying influence because after all people just tend to support those who agree with them, apparently oblivious to that other truth that people tend to agree with those who support them.  Why else, after all, would the super rich spend this money instead of buying (or in addition to buying) another Damien Hirst sheep pickled in a block of acrylic.  This is not America; this is the Russia of Putin and the oligarchs.

Charles Fried teaches law at Harvard and served as Solicitor General under President Ronald Reagan.  He filed a brief in this case supporting aggregate limits on behalf of Americans For Campaign Reform.  An abbreviated version of this opinion piece was published in the New York Times as a Letter to the Editor on April 4, 2014.