Skip to main content

The most brazen invitation to oligarchy in Supreme Court history

Robert Reich, professor of public policy | April 2, 2014

This is no April Fool’s joke. Today, in a 5-4 decision written by Chief Justice John Roberts, the Supreme Court in “McCutcheon vs. Federal Election Commission,” went beyond “Citizen’s United” to strike down overall limits on how much an individual may contribute in one election cycle to innumerable federal candidates and to party committees.JohnRoberts

Overturning 40 years of national policy and 38 years of judicial precedent, the Court’s decision allows federal officeholders to solicit and individual donors to pour as much as $3.6 million directly into federal campaigns every election cycle – buying unparalleled personal influence in Washington and drowning out the voices of ordinary citizens. (It gives me no satisfaction that I testified against John Roberts at his confirmation hearing years ago.) This is the most brazen invitation to oligarchy in Supreme Court history.

In my view, we must amend the Constitution to establish once and for all that (1) money is not speech under the First Amendment, (2) corporations are not people, and (3) we the people have the right to set limits on how much money individuals and corporations can spend on elections. You with me?

Cross-posted from Robert Reich’s Facebook page


Comments to “The most brazen invitation to oligarchy in Supreme Court history

  1. While it is not free speech, bribery is persuasive and generally succeeds in stifling open discussion, honest debate, critical analysis and conscientious evaluation of proposed legislation or ideas. Americans know we have the rights our employers allow or we can afford and free speech doesn’t exist when talking union can get a “natural person” fired. We all know money talks and helps ensure what prevails in the United States is not representative democracy but representative of the interests of a minority of “persons” formerly known as corporations.

  2. Leave it to a liberal icon to propose solving our problems by limiting the 1st amendment.

  3. So your response to a 5-4 Supreme Court decision is to unite, lead, speak out, inform and motivate the public to take action to restore American Democracy controlled by We The People today?

  4. Prof. Reich, this post and your own blog appear to be the start of a new Declaration of Independence.

    The new Princeton and Northwestern University study also concluded “[W]e believe that if policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened.”

    So now we have a choice between oligarchs ruling us with their power of money, or by intellectuals informing and motivating us to join together and take action because politicians in both political parties have failed to protect American Democracy and we must find a better way.

    How many of your fellow academicians are willing to “mutually pledge to each other our Lives, our Fortunes, and our sacred Honor” joining with you today?

  5. Martin, We The People Democracy would be the best way to run our country today, but SCOTUS just overthrew us.

    So now we have a choice between oligarchs that have been enabled by SCOTUS to rule us with their power of money, or by intellectuals informing us because politicians in both political parties have failed to protect American Democracy and we must find a better way.

  6. We have oligarchy now and Reich is a court jester in it

    The oligarchy wants government control of speech including campaigns and campaign finance, so they can make sure no incumbents or new parties can raise money

  7. I agree with the learned professor. We have too much freedom. The ignorant masses need guidance from our intellectual superiors as to who can speak and what they are allowed to say. The First Amendment is a threat to our freedom, and must be changed before the people are misled by incorrect thoughts.

    Maybe a committee of the smartest people in Berkeley, Cambridge, New York and DC could be formed to implement this plan. Who else would be more in touch with the American people?

  8. No matter what legislation gets passed, money is always going to get to candidates from special interests. Lets pass legislation that taxes donor money at about 20% on the dollar. At least then we can live with the politicians we don’t like because a chunk of the election money is sent to pay the deficit down. (just trying to make the best out of a situation that won’t change any time soon)

  9. Lukas,
    What happened to Eich over at Mozilla is a perfect example of why there needs to be privacy in political donations, and why the left is so opposed to it.
    The left lives by vilifying and destroying those with whom it disagrees.

  10. Michael,
    What you propose is every incumbent’s dream.
    How do you propose to counter the power of newspapers to back the candidate of their choice, and the advantage incumbents have to get on TV whenever they want?

  11. The problem is not too much money, it is too much government.
    If govt weren’t trying to run every aspect of our lives, buying it’s power wouldn’t be worth the expense.

  12. And how many millions has George Soros invested in buying the Presidency over the years? And now that he’s finally succeeded are we expected to believe that a candidate backed by a constitutionalist Republican billionaire would be worse?

  13. Robert Reich believes that corporations are not people, and I concur: they are legal persons, and they have had that status since the Middle Ages. (See “The Company: A Short History of a Revolutionary Idea,” by Micklethwait and Wooldridge, p. 12).

    If Mr. Reich wishes to overturn several centuries of precedent in Western history, he must look forward to even more power vested in government. That is a defensible position, but it is hardly liberal (in the traditional meaning of the term). Our news organizations are corporations. Would Mr. Reich place muzzles on their free expression? I doubt that he would relish that. But what about a news corporation owned by an industrial behemoth, one that espoused retrograde views? Would the news corp. be allowed to endorse candidates? — I doubt that Mr. Reich has ever pondered these questions.

    The uproar over the recent SCOTUS decision has underscored how little faith “progressives” place in the People. When I receive Republican propaganda in the mail, I toss it into the trash bin. I don’t vote for Koch-backed candidates. I’m sure that Mr. Reich doesn’t either. Why does he assume that his fellow citizens are more gullible than he is? Why do I sense a species of elitism in his outrage?

  14. The Supreme Court may merely be trying to cement Oligarchy in place, replacing democracy and making many things rather unlikely — such as reducing huge military/intelligence, dealing sensibly and thus urgently with climate change — but the side effect may be to finally energize a coming together of the many threads of American populism in (at least) an effort to get a constitutional amendment.

    Assuming such an effort, what should the amendment say? We won’t have that many chances to get it right! I’d ask for: No political action by anyone but natural persons, political action being broadly defined as efforts to influence the actions of any branch of any government or to indfluence the outcome of any election. Also, I’d urge a low cumulative maximum expenditure per person per annum to pay for political action.

    Thus no corporations in the game at all and wealthy people strongly limited in the political action they can take.

    • So the New York Times will no longer be able to run endorsements? MTV can no longer run ads encouraging people to vote—which is certainly designed to “influence the outcome of an election”, at least in terms of turnout. And the NAACP can no longer advocate for any candidate or engage in any “political action” — whatever that means? Because both are corporations, without question.

      Because all three are corporations, of different sorts. And Jeff Bezos, who owns the Washington Post, is a “natural person” with tremendous power to advocate for “political action” without directly spending a dime on anyone’s campaign.

      It’s not so easy.

      And the bottom line is that, just because they choose to formally associate with one another towards a common goal — form a corporation — individuals do not lose their civil rights, including those guaranteed by the First Amendment.

  15. How about no lobbyists and no donations to campaigns, period? use equal television and equal advertising budgets to each candidate, period. probl solved

    • Sure, so that only, say, Jeff Bezos has a megaphone through which to endorse candidates, subtly push for their positions, etc.

      And the idea of “no lobbyists” is absurd. Without effective advocacy, groups from the NAACP to the NRA to PETA to the ACLU would have no way of effectively communicating the position of their members.

      And purely publicly financed campaigns mean no grass-roots fundraising—only the party machine candidates ever have a chance of running.

      The best defense against corruption is an aggressive press that seeks the truth. When the entire field of professional journalists is engaged in little other than political activism and agenda-pushing—either lapdogs of their favored party or pit-bulls attacking the other, the public is deliberately deceived.

      It’s not so easy to get “money” out of politics —- especially when money means almost nothing but advertising dollars, and advertising is nothing if not free speech. The Washington Post writes editorials every day and endorsements every election — why shouldn’t other corporations and individuals be accorded the same right?

  16. My McCutcheon rapid response speech.

    “Citizens Against Plutocracy do not accept this Lewis Powell inspired Supreme Court majority. Justice Powell was appointed to the Court by President Nixon after he penned the infamous Powell Memo to the US Chamber of Commerce. Powell supported the 1976 Buckley v Valeo decision that defined money as speech. Powell supported the decision that corporate advertising is protected by the 1st amendment that same year and Powell wrote the 1978 decision that gave corporations the freedom to engage in propaganda during ballot initiatives, the precursor to the 2010 Citizens United decision which extended that right to all campaigns for elective office in the U.S.

    We’ve been planning a response to the this McCutcheon decision for four months now. Why? Because knowing how the Roberts’ Five decided on Citizens United, we were already – join me — outraged, fed up and fired up.

    We suspected that the Roberts Five would continue their push toward fascism in the United States. Some folks claim that we’re not veering toward fascism because we have no Vanguard Fascist Party in the U.S. We don’t need one: we have the Lewis Powell inspired Roberts Five doing the work for the corporate interests. That’s another reason why we’re … outraged, fed up and fired up.

    Today, we have a lost Republic, something analysts call neo-feudalism, not fascism — yet. However, Neo-feudalism is not democracy, and that’s why we’re outraged, fed up and fired up.

    From Buckly to Citizens United to AZ Free Enterprise Club’s Freedom PAC and now with McCutcheon, the Court has been usurping the power that the Framers granted state legislatures and Congress to regulate the “manner of holding elections.” Money is legal tender, not speech. The Court has been legislating from the bench and legalizing plutocracy. That’s why we’re outraged, fed up and fired up.

    We are not demanding, and can not demand, “equality of speech.” We’re demanding “equality of citizenship” and the end to institutional corruption as Professor Lessig accurately describes our plutocratic order in his speech “Equality.” Google Lessig, Vimeo and Equality. The Supreme Court has institutionalized one dollar, one vote which gets us outraged, fed up and fired up.

    MTA’s agenda is an amendment to the Constitution to overturn these plutocratic and corporate decisions. Such an amendment would not take the U.S. into uncharted waters. To go forward, we need to go backward first. We want to go back to the constitutionality of CFR that we had in 1975.

    People have rights; associations should only have privileges. MTA, we the people, want the legal status of corporations and all associations returned to what they were for the first 98 years of this our democracy.

    Corporate personhood has derailed our democratic Republic. Plutocracy has undermined American representative government. That’s why we’re outraged, fed up and fired up.”

  17. Prof. Reich, it is obvious from reading far too many comments like these that there is a critical need for you and other leading professors such as Dan Farber, Rosemary Joyce and Alison Gopnik to join together to better inform us on how to protect the human race from failing completely.

    We must find a way to overcome the confusion that prevents people from understanding all the threats that are overwhelming us today, before we lose complete control of our future.

    Berkeley has the best educators in the world at a time when we need to find and implement solutions to save our future more than ever before in history.

  18. I don’t believe we even need all these senators and governor’s etc. We can vote on issues for ourselves by internet.

  19. No doubt about it, if you are going to use speech for expressing ideas, then speak. Purchased speech is fraudulent speech. Just like a purchased essay is a fraudulent essay.

  20. Your ultra-leftwing is showing. You would do nothing to stop George Soros from pouring his ill-gotten gains into the political life of America, which he has done by subterfuge for decades now. Your view of the Constitution is certainly that of a statist. Your concern is to shut up people that you disagree with. My purpose is open and honest debate. Your buddy Obama has been a complete disaster to the American Experiment. One that you cannot whitewash. When “We the People” gather together to oppose you statists, you and your lackeys in the press vilify us. The Tea Parties are We the People.

    • john hurabiell: you are wrong. anyone who believes in campaign finance reform wants to protect the political process, and democracy, not protect a political party. john mccain (R) enacted the 2002 Bipartisan Campaign Reform Act.

      the supreme court’s recent decision has opened the floodgates for corruption. Any economist will tell you that the more corrupt a country is the less well they do economically.

      It’s o.k. to have a few rules to protect the economy and political process. alan greenspan would tell you the same (and did after the economic collapse)

      we have rules for driving. we have rules for hockey. we have rules for classroom behavior, and so on. sometimes they’re called regulations. the severe collapses or busts of our economy ceased to happen after some financial regulations were put into place in the 20th century. whenever those regulations are relaxed or obliterated we have seen corruption and great losses to innocent investors.

  21. So is burning the Flag speech? So is wearing a t-shirt with a political or religious slogan speech? Should expression in literature and art be regulated since it communicates ideas without speech?

    Freedom of expression is part of freedom of speech. The number of flags destroyed, the number of politically oriented art work created, the number of checks written, or the number of rights in the Constitution should not be limited by regulation.

    Limiting the number of contributions to candidates and organization is nothing more than limiting free expression, our rights as citizens, and free speech.

  22. I couldn’t disagree more with Robert Reich; limitations on political free speech (the first amendment!) in the name of campaign finance reform are not only unconstitutional, but have also been unevenly applied (e.g. limitations on individuals, but not on unions or corporate lobbyists?) . . .

    why should there be any limitations? why can’t i, as a citizen, a union, a corporation – or any other organization, which, by definition, is a group of people – spend whatever i/we like to promote my/our candidate/cause?

    as a safeguard against a quid pro quo (i.e. buying an election) there should be ample donor disclosure requirements (including of $$$ spent by corporations, etc. to lobby capitol hill) to ensure campaign finance is exposed to the light of day . . . as a result, real or perceived donor/donee conflicts will be exposed and then likely communicated/amplified quickly through twitter, etc. . . . in any event, the left (unions, environmentalists, academia, silicon valley) and the right will pour roughly the same amount of $$$ fighting over candidates/issues . . .

    • How naive are you? One of the things that Citizen United did was allow for the creation of opaque political organizations designated as charities. If it is possible for them to spend all of their money on politics but still not have their non-profit status revoked, what chance do we have that transparency can actually reign supreme?

      What I am getting at is that even if we know how much these individuals spent, we will not exactly what organization they gave it to. As Stephen Colbert proved during his SuperPAC episodes, it is possible to set up an unlimited number of dummy organizations that can transfer money between themselves.

      How exactly do you propose shining light on this entire system? Light doesn’t shine in a black hole.

      Your point also ignores how the world actually functions. With this decision the Supreme Court has said, “not our job, your turn Congress”. Do you truly believe that Congress, with the House under Republican control, is going to pass any campaign finance laws? That is a silly notion especially if the bills relate to showing how much their wealthy individual backers actually contribute.

      As much as I like sticking my head in sand, I come up for air every once in awhile.

      • yep. i was certainly naive!

        i’m going to pull a roseanna anna danna and say, “never mind!” – but only to the disclosure part of my missive . . .

        after the chilling intolerance displayed by mozilla in firing their ceo for his $1000 donation to prop 8 in 2008, i see the consequences of campaign disclosure . . . no matter your view on gay marriage, this mugging of free speech is despicable . . . i’ll never use firefox again . . .

    • You’re joking right? The ideas in the bill of rights were put there to protect the average citizen from being trampled by the powerful (read oh, I don’t know, the federalist papers? or anything written by the people who wrote those documents that explains there thoughts. It’s not hard to come by), not so that the powerful could continue to disenfranchise the rest of us. It’s disingenuous to decouple the realities of a policy from it’s stated intention. In an ideal world would the southern states need to have different federal voting standards to adhere to? no. In the real world though the actual history of racism and disenfranchisement makes it necessary.

      So again in an ideal world without human corruption and falliblity does it matter how much one is allowed to spend to promote there point of view? no. In reality however it leads to the corruption of the political process to the point of absurdity. Make no mistake that’s what lobbying is (no matter who does it), legalized corruption. We lambast Russia for there corruption, but the real difference is that they just haven’t had the “good taste” to codify how bribery should be done into law.

      Donor disclosure is a red herring, let’s face it if I can spend millions promoting a candidate, I can spend millions obfuscating the facts, disclosure or not. The problem is that ordinary (read poor and without special access) citizens can not adequately counter the misinformation that is leveled at them by monied interests (no matter what those interests are) without devoting a mind blowingly large amount of time to research the issues (time most people spend working 2-3 jobs, raising kids, and you know doing the things necessary to survive). We need to start finding ways to eliminate monetary incentives in politics, not increase them.

      Also comparing union and consumer advocacy group spending (which by the way I’m also against, just less so than I am against the ultra-rich turning politics into a game of Pokemon (gotta buy ’em all!)) to the spending by groups and individuals that represent a small number of ultra-rich individuals (who for the most part are rent-seekers and do not actually contribute anything meaningful to society) is absurd. One persons voice should not be allowed to equal, or drown out, the voices of millions. If there policies are so awesome, then let them advance them on their own merits, without attaching them to a checkbook.

      Also, if you take issue with anything I’ve said, please feel free to say so, I’d be happy to provide you with the tens of thousands of articles, papers, and other research materials I have accumulated while researching these issues. Or I can further explain my reasoning. Just don’t try to attack me with logical fallacies and bad argumentation that is unsupported by real world research and information.

      • yeah, sure. the people need to be protected . . . which is why the government keeps expanding and our liberties keep contracting . . .

        again, anyone should be able to spend whatever they like to promote their opinions – “congress shall make no law . . . abridging the freedom of speech, or of the press . . .” so if i want to spend whatever amount of $$$ supporting a pro-abortion or pro-life candidate or organization because that issue is really important to me, it is my right to do so . . .

        yes, many people are too busy/lazy/whatever to adequately educate themselves on the issues. however, that doesn’t mean that we should protect these people from the hypnotic/evil/whatever influences of “monied interests” by trampling on the basic liberty of free speech . . .

        and really, one voice drowning out millions? today there are plenty of venues to inexpensively voice an opinion. and there are plenty of opportunities to discuss issues one-on-one or in groups. however, it rarely happens. most people remain sadly ignorant, largely flitting away their obligation in a democratic society to educate themselves on the issues. but again, does that mean we trample on personal liberties to “protect” the ignorant zombies? that’s the same kind of big government thinking that has created our nanny state (including obamacare) and over regulated private markets (and i’ve seen some of the latter personally as a former regulator at the sec in dc) . . .

        and if you believe that individuals, or groups of individuals, should be muzzled, then why not muzzle the media (talk radio, msnbc, pbs, fox news . . .). after all, there isn’t a substantive difference between the media endorsing/supporting a candidate and an individual/group doing so . . .

        also, if you really want to ensure all voices are heard, then provide all citizens equal access to political leaders. if the silicon valley elite dine regularly with the president to voice their opinions and be heard, then why not the average joe?

        oh, and without “data” your attacks on the rich as mostly “rent seekers and do not actually contribute anything meaningful to society” are ad hominem . . .

        have a nice day!

  23. When I heard the news of the Supreme Court decision I thought “oh no!” Combined with the Citizen United decision, the Supreme Court for some reason is trying to destroy democracy in the U.S. Already money in politics has a corrupting influence. This decision is only going to make things worse.

    One more comment: The influence of unions will never come close to the influence that wealthy people have, i.e. the Koch brothers. In 2013 there were 14.5 million members in the U.S.; the percentage of workers belonging to a union was 11.3%.

    • Karen, You’re simply misinformed. Unions spend about four times in political donations and activity what corporate PACs contribute. And 55% of corporate PAC money in 2008 went to Democrats, while well more than 90% of union money went to them as well. (See this Wall Street Journal article.)

      In short, Democrats have had a massive fundraising advantage and are crying foul now that their special protections are being dismantled and the playing field will be level.

      The fact that you automatically assume the opposite is a tribute to the perfidy and bias of the press corps in this country, and the echo chamber in which those on the left reside.

      Lastly, the Koch brothers have a lot of money — but hardly more than George Soros, Bill Gates, et al.

  24. I am with you! Let’s get started and amend the constitution. That Berkeley will serve as the launch pad for the amendment makes me smile. Put me on the list of volunteers ready to help make history happen.

  25. Perhaps you should add Unions to your list; they exert tremendous political influence via their contribution of substantial amounts of money, almost exclusively to one political party. Of course, they raise this money from mandated dues from the working stiff – whether they want to be a Union member or not. These mandates are put into law by the very politicians that Unions help put into office. Hmmm, seems a little incestuous to me.

    Corporations and wealthy individuals spread their dollars to both parties. I do agree with you that money is not free speech and the influence that money buys is out of control, but let’s be fair, it’s not just corporations and wealthy individuals.

    • Have you seen the reports recently about how much money is actually spent by unions in comparison to wealthy individuals? Wealthy individuals total contributions dwarf that of unions. I will not argue for a second that unions don’t provide a large lobbying group but it is disingenuous to include them on the same list as the wealthy backers willing to spend hundreds of millions of dollars of their own money.

      Unions represent the general desires of their membership, and if they don’t then there are way to vote in new leadership. The same cannot be said of a private corporation, especially if the CEO is using his own personal fortune.

  26. With you all the way! Government by rich white older men does not appeal to my sense of patriotism.

    • Hmm… last time I checked Barack Obama was President, Eric Holder runs the Justice Department, Clarance Thomas sits on the Supreme Court, as do three women. The 70s called… they want their one line slogans back.

  27. How long can the rich and powerful push before the people wake up and push back? Who knows? I hope people in this country have not become tolerant of plutocracy. We live in an era where misinformation, doubt and insecurity have become the norm. Those with political and economic power use this to maintain their control. Because of misinformation many average americans elect people who are against their interests. In the long run it will weaken our democracy.

  28. When I heard about this decision I was amazed…my first reaction was that the Supreme Court had all but handed the country to the GOP & essentially supported the corruption of democracy. We will no longer have politicians & leaders who are best qualified for their positions, we will have politicians whose integrity will be measured by for how long & for how much before they let themselves be bought. The Tea Party is an example of the sort of damage & governmental devolution you get when a few deep pockets bankroll the candidates of their choice. One can only wonder how much the McCutcheon decision cost those same deep pockets. And while the Republicans seem to be the most overtly corrupt at the moment, I have no doubt that Dems share equally in their willingness to sell out.

  29. Oh My! This is the example that they demonstrate to the world. ‘Democracy’ takes on another meaning entirely.

  30. Dr. Reich,
    Please tell us what we can do. I know, vote…..but there is surely something more. The people that I have an opportunity to vote for are already on the proper side of this argument and the people who keep voting Conservatives into office are not going to change.

  31. So your response to a 5-4 Supreme Court decision is to unite, lead, speak out, inform and motivate the public to take action to restore American Democracy controlled by We The People today? You want to tell the public to take action? Look at what you wrote. Who do you want to take action? The public. Who is that exactly.

  32. Professor Reich, thank you. You and your Berkeley Blog colleagues keep proving that it is time for Berkeley’s professors and scholars to unite, lead, speak out, inform and motivate the public to take action to restore American Democracy controlled by We The People today.

Comments are closed.