The Supreme Court Case that Made Trump (And The Justice to Remake Money in Politics)

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During the presidential campaign Donald Trump bragged about buying politicians, but also denounced this as, “a broken system.” He claimed, to avoid the corruption of money in Washington, he would not accept donations from donors, and would instead rely on self-funding through his own wealth. While his total expenditures ($646 million) fell short of Secretary Clinton's ($1,191 million) he only supplied $66 million, with an additional $264 million from small donors ($200 or less), leaving $316 million from larger donors (anywhere from small $201 donations to Sheldon Adelson's $20 million). Trump successfully deceived the public about his supposedly self-funded campaign, and voters expressed support for his supposed lack of strings.

But the more significant question (not whether money matters at all), which seems to concern no one, is: Is it better to allow a wealthy man to buy an election directly, or through an intermediary?

The premise is a horrible conundrum, but it's the essence of the politics of the United States in 2017. Maybe, in some sense, politics has always been like this. But in the United States, four events over the last four decades have allowed an ever increasing amount money into politics. While Citizens United is first on everyone's mind, it all began with a lesser known case from 1976, without which Donald Trump could never lied as he did (and become president).

Buckley v. Valeo came about through The Federal Election Campaign Act of 1971. The Act consolidated all campaign finance reform (initially begun by Theodore Roosevelt, who saw the danger of unrestricted spending in politics – the Republican party has changed), since its inception in 1907. Amended in 1974, the Act was contested by Senator James Buckley of New York, member of the Conservative Party of New York State, and brother of William F. Buckley Jr. (who founded the National Review). Supported by a broad coalition it rallied strange bedfellows: ACLU, Democrat Eugene McCarthy, the American Conservative Union, and the Libertarian Party.

Four issues of the Act were debated by the Supreme Court.
  1. It limited contributions to candidates at one thousand dollars per individual, and twenty-five thousand during a year.
  2. It limited a candidate's spending on his own political campaign, with the amount allowed dependent upon the office he or she was seeking.
  3. It required political committees to keep detailed records of anyone who donated more than ten dollars.
  4. It created the Federal Election Commission to regulate all of the above.
  5. And it introduced public financing for candidates reaching certain thresholds.

In 1976, eight judges (John Paul Stevens recused himself), determined campaign finance enhanced the “integrity of our system of representative democracy,” finding limits an important method for “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office.” While the justices upheld limits on contributions (both to an individual and in total), the creation of the FEC, public funding, and maintaining donor records, they found no vital interest in limiting an individual from contributing to his own campaign. An individual, the judges argued, can't corrupt himself. This was the moment citizens such as Perot and Trump became possible presidential contenders.

Next follows Supreme Court nominee Neil Gorsuch. (Update: confirmation hearings are set to begin March 20th). The news trumpets the only popularly known fact: he's an Originalist (more on that further), but how would his butt on the bench effect campaign finance? The clearest intent can be culled from a ruling in 2014, Riddle v Hickenlooper. In this case, the state of Colorado was accused of discrimination through the Equal Protection clause of the 14th Amendment, for its campaign finance laws. Colorado allowed Republican and Democratic politicians to receive up to $200 in donations for the primary and another $200 for the general election, but the money acquired during the primary could be saved for the general election: a $400 total. Non-aligned candidates lacking a primary were limited to receiving only $200 from each contributor, as Colorado argued they had less total expenditures.

The Tenth Circuit ruled against Colorado as violating the 14th Amendment without any reason. In a concurring opinion Justice Gorsuch went further. Quoting from the Buckley v Valeo ruling he reminded the public of the supposed value of private funding of democratic campaigns as a “basic constitutional freedom” and a “foundation of free society.” Actually, it sounds more like an aristocratic republican tradition and less an egalitarian, democratic ideal. Instead of the giving of time and effort, the donating of grand largess is a form of patronage and perversion the Medieval kings of Europe would applaud.

Gorsuch continued in a public musing, questioning whether all campaign finance should be made subject to strict scrutiny. The justice system considers three tiers when invoking judicial review, and strict scrutiny is the most severe of the three (rational basis, intermediate scrutiny, strict scrutiny). This final level is applied when a constitutional right is being infringed, and the court asks itself three questions:

  1. Is the infringement justified by a compelling government interest?
  2. Is the law written as narrowly as possible to avoid unnecessary infringement?
  3. Is there a less restrict means by which the same outcome could be achieved?

In invoking strict scrutiny, Gorsuch at least hints at demolishing the wreckage of campaign finance reform that still exists in the wake of Citizens United, McCutcheon, and McDonnell (all of which will be articulated in a later article).

What's clear is that Gorsuch worships an opinion which turned back a seemingly minor provision in The Federal Election Campaign Act which seeks to regulate money in politics. He's indicated a further interest in striking what remains (though further articles will demonstrate how little of the original intent of FECA remains). And while candidate Trump railed against the Big Guy manipulating politicians for his own benefit, it's clear, in nominating Gorsuch (and the wealthiest cabinet in history) that he has no interest in protecting the “voices” of the average citizen who don't have the buying power of the managerial class.

This is the first of a series of articles which will continue over the next month and a half, and will include a look at:

Three Cases Which Increased the “Speech” of the Wealthy

Gorsuch, Originalism, and the Debate over the Constitution

And the Ultimate Question:

Why is it Preferable for A Wealthy Man to Elect Himself, Rather than A Puppet? (Subtitle: An Insane Proposal)

Hope you'll join me,

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