The Supreme Court’s recent decision in McCutcheon v. FEC continued the trend of rolling back limits on how money is used in elections. Today, money as free speech can be regulated only to stop quid pro quo corruption, “a direct exchange of an official act for money.” Those speech-dollars can do almost anything under the court’s ever-narrowing definition of corruption.
Those that support the decisions expanding the freedom of speech-dollars may be disappointed to see how it could be used to actually improve American democracy by increasing voter participation. Doing so could lead to more populist electoral outcomes that would eventually lead to electoral reforms that again limit the power of great wealth over our electoral process. (Yes, it is amusing to consider that to close the loophole we must exploit it.)
Under the Court’s current interpretation, the First Amendment gives you the right to express your political beliefs through the act of giving your money to candidates for office (and other groups) that support the same (candidates or beliefs). What if you were to spend speech-dollars in the electoral process for the following belief: “the republic is best served by maximizing voter turnout”? The Court is also repelled by content-based restrictions on speech. One could put those speech-dollars behind efforts to support the act of voting instead of the act of running for office. You support voters, not candidates.
You support voters and want to spend money to help more of them vote. Yes, you could fund traditional “get out the vote” drives. However, under McCutcheon and its ilk, you can get more creative (so long as you avoid quid pro quo corruption).
The federal statute regulating “expenditures to influence voting,” 18 U.S.C. § 597, is now partially unconstitutional under the new precedents protecting free speech-dollars with the First Amendment. The statute states:
“Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote—shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.”
Don’t let that scary language fool you: similar sanctions used to be in place for persons exceeding various campaign donation limits. Under the Roberts Court version of American democracy, the constitution gives money much more freedom.
An individual or organization could now offer to pay, say $5 million, to one randomly selected person who voted in a given election. A similar plan was on the ballot in Arizona about a decade ago, but turned out to be ahead of its time. It was defeated, surprise, in a state dominated by a party that, putting it lightly, doesn’t think everybody should vote.
A follow-up post will examine what a privately-funded “American Dream Prize” could look like under the new electoral system that protects freedom of speech-dollars — and you can believe the folks that love Citizens United & McCutcheon will absolutely loathe the “American Dream Prize.”