More than 20 years ago, Supreme Court Justice David Souter sought to warn that big money in politics risked turning US officials into tools of an emerging “plutocracy.” We now know from recently released case records that Souter had to pronounce the language in his draft Supreme Court opinion in a 2000 campaign finance case, Nixon v. Missouri Gov. Shrink PAC, as the price to secure the vote of Justice Sandra Day O’Connor. That’s a shame, because Souter’s warning is one that America’s political leaders, including the justices of the Supreme Court itself, needed to hear. This warning was never given and therefore never heeded. Today, the American plutocracy—from Congress to inside the courthouse walls—is alive and well.
Justice Souter was one of the most important, if underrated, voices among Supreme Court justices on money-in-politics issues. Your opinion on Shrink Missouri and similar cases in the early 2000s provided a jurisprudence of the First Amendment that is so different from today Citizens United– was fed in which limits to money in politics are meaningless.
Writing in Shrink Missouri, Souter opined that limits on large donations were essential to a functioning democracy and public trust in it: “Leave unanswered the perception of impropriety, and the cynical assumption that large donors call tune could jeopardize voters’ willingness to participate in democratic governance.” This was an important warning, but Souter wanted to go much further. Souter’s original, previously unreported warning note that to my knowledge, was that there was a “broader threat that politicians who depended on large contributions would lose critical independence and instinctively identify the interests of a plutocracy with the public good.” Tragically, this is very much what has happened over the years since the Supreme Court’s balance of power shifted when Justice O’Connor retired in 2006 and the Citizens United era ushered in a new Gilded Age.
It is important to understand the framework in which Souter was working. Justice had a problem with how it described the problem of big money in politics: it had to frame everything in terms of preventing corruption rather than leveling the playing field among citizens. In a key case from 1976, Buckley v Valeo, the Supreme Court upheld campaign contribution limits against a First Amendment challenge pointing to the government’s strong interest in preventing corruption and its occurrence. But he rejected the idea that limiting money could also be justified to promote political equality: “the concept that the government can restrict the speech of some elements of our society in order to improve the relative voice of others is completely foreign to the First Amendment”.
In 2008 I wrote about Souter as a emerging egalitarian who, in his judicial opinions, sought to recast concerns about political inequality in an anti-corruption framework to remain ostensibly consistent with the court’s earlier Buckley decision. Thanks to the launch from some Supreme Court files of the late Justice John Paul Stevens housed in the Library of Congress, we now have confirmation of Souter’s egalitarianism and his attempt to warn the country of the dangers of big money.
At issue in Shrink Missouri was whether Missouri’s campaign contribution limits were set unconstitutionally low, making it impossible for some candidates to raise money for their campaigns. In a 6-3 opinion written by Souter, the court held the limits were justified on anti-corruption grounds and not a violation of the First Amendment. (It’s a decision that today’s much more anti-regulatory Supreme Court has held ever since effectively annulled.)
An early draft of Souter’s majority opinion in Shrink Missouri sought to expand the definition of corruption to include concepts of political equality. After quoting Buckley about the dangers of “undue influence” and “opportunities for abuse” that justified some campaign finance limits, Draft of Souter’s Shrink Missouri explained that in Buckley, the court “made it clear that we recognized a concern that was not limited to the bribery of public officials, but extended to the broader threat that politicians who depend on large contributions will lose critical independence and they will instinctively identify the interests of a plutocracy with the public good.”
Unfortunately, Souter’s warning of an emerging plutocracy never made it into the final version of Shrink Missouri. O’Connor complained over the line, calling it an “unnecessarily broad definition of ‘corruption’ . . . one that goes beyond Buckley’s concern with counterpart corruption and its emergence.” Souter agreed to remove the line, remarking to O’Connor: “You run a tough business.” The new language more tamely described the broader threat of big money as “politicians who cater too much to the wishes of big contributors.”
The omission was unfortunate because Souter’s original insight was profound and surely correct. When politicians spend all their time around the super rich and depend on their support, they will become increasingly identified with their interests and values. And this is as true for Justice Clarence Thomas and his benefactor Harlan Crow as it is for everyone presidential candidates WHO now they depend to mega-donors to fund super PACs to support their campaigns.
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When Souter wrote his opinion in 2000, we didn’t have… how we do today—donors give tens of millions (and in two cases, more than $100 million) to outside groups that can work hand-in-hand with candidates as long as they have good lawyers to avoid legal pitfalls. Not surprisingly, as Marty Gilens and Benjamin Page have done Foundthe interests of the super rich are much more likely that are reflected in public policy than the interests of the average American.
Souter’s statement about plutocracy was not concerned with corruption in the traditional sense, but with how money corrupts a democracy that values each voter as a person of equal value. In my 2016 book, United plutocrats, I argued that this concern was rather characterized by equality, not by corruption. But no matter what label you put on it, Souter’s vision has since been decimated by a Supreme Court that has consistently rejected concerns about the too much influence of wealth in politics.
Today’s Supreme Court only allows corruption as a potential interest in limiting money in politics or for police bribery, and as it narrows the definition of corruption ever smaller, it leaves more and more room for plutocrats to dominate the politicians and the judges themselves. . Souter was right: The “cynical assumption that big donors call the tune” is proving true every time day.
