The very highest scrutiny. That is one of the phrases that Chief Justice Roberts used to describe why the Supreme Court lifted some of the restrictions on campaign contributions last week in a 5-4 vote. The law’s overall monetary limit on contributions meant that campaign donors could not give the maximum contribution to as many candidates as they chose. Therefore, the argument went, the law threatened these donors’ “associational freedoms” protected by the 1st amendment – the freedom to associate with any candidate by contributing to their campaign with the maximum donation. The majority opinion was that anything that gives the least impediment to the 1st amendment must pass the very highest scrutiny. Thus the court scrutinized this restriction under their legal microscope. It didn’t pass.
Why is this ruling so significant? Why so contentious? After all, it will affect only the tiny droplet of our population who has the enormous wealth it would take to reach the contribution limits. This was contentious and significant because it is a classic quandary in our political system: Individual rights versus the Common Good. On the one hand we have to promote deep concern for the rights of those individuals who want to contribute to whomever they want without restriction. But on the other hand we have to promote a concern for the political process in general. Corruption and the idea that elections can essentially be bought and sold are very real concerns.
In fact, the court said that it took the specter of corruption seriously. Roberts wrote that there is “only one legitimate governmental interest for restricting campaign finances: government corruption or the appearance of corruption.” The majority simply disagreed that the reality of corruption was serious enough to restrict any associational freedoms. I agree that in order to protect free speech, the default of our discussion should be “why have any restrictions at all?”
But by framing it in the way they did, the majority opinion basically boiled the whole discussion down to a more specific question, Is government corruption (through campaign contributions) enough to compel us to maintain these restrictions on campaign finances? Here is where I think there was something missing from the technical legal arguments. In fact, I think there were a whole series of questions that were missing from the majority ruling. The first is this:
Is corruption the “only” reason to have campaign finance restrictions?
A protestor outside the Supreme Court last week.
I am not convinced it is. What about other concerns for the common good of the political process? I believe that principled pluralism requires us to at least ask tough questions of this ruling. Whose voice is being heard, whose power is being executed in the public sphere? How can the disenfranchised change and shape the system? Should we not also have concern for the more insidious ways that free speech might be hindered for the poor who will be even more alienated from the campaign process as politicians are given even more incentive to court the very elite and wealthy? These are real questions that government must address as well. I believe that we should be concerned not just about corruption or free speech, but also political access.
There was a telling little phrase from the ruling, “the appearance of corruption.” It was dismissed by the majority as a non-factor. But it hearkens back to the law’s original intent. Trust. The law’s purpose was grander than putting a punitive shackle on the very wealthy. It endeavored to establish trust by having a system of restrictions on political contributions. Whether it did that well or not is certainly debatable.
The point is that these are really important discussions to have. And we would be wise to take a second and third look at this ruling. For it touches poignantly on a practical way that public justice is done in a society with a plurality of perspectives. And it forces us to ask the age-old question of “justice for whom?”
But I have to ask one more question – what are we going to do about it? The ruling has been made and we could critique it (or praise it) until we are exhausted. Yet it stands. And come this fall we will yet again be bombarded with the fruits of campaign contributions – ads, punditry, spin, lobbying, and slander.
As Christians concerned for public justice we are called to turn our attention from critique and get to work passionately building a generation that can see through the spin. And to be a generation that can create dialogue in its place. A generation that builds election processes where the poor are not just a token story in a stump speech, but active in their own political power. These are avenues of real, wonderful power that might counter that of the almighty dollar. With that renewed calling and vision we may see whole new questions. Can political engagement and education actually temper the influence of money without restrictions on contributions? Or conversely, could that money actually be harnessed toward a revolution of the process itself? Let’s get to work finding the answers.
-Dan Carter is a husband, father, neighbor, reader, runner, and Senior Pastor of Calvary on 8th St. located in Holland, MI. www.calvaryreformedholland.org