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Big-Money Elections Unconstitutional?

by Lewis Pitts

The reality that big money in electoral politics has undermined public confidence in government hardly needs documenting. The cost of running for and winning an elected seat has skyrocketed. The vast majority of North Carolina General Assembly races are won by the candidate raising and spending the most money. Any honest assessment raises crucial issues of corruption and rule by the rich.

Former N.C. Attorney General, now Governor, Mike Easley, along with 21 other state attorneys general and eight Secretaries of State, submitted an amicus brief to the Federal Court of Appeals for the Sixth Circuit in March 1997 in support of an Ohio limit on campaign spending in judicial races. Their brief stressed the "negative impact of fund-raising on the performance of public officials" and "public distrust of government because campaign finance issues adversely affect all government officials." To sum up the severity of the problem, the brief proclaimed: "that our system of governance is confronted with a blight so serious that the electoral process itself - and the First Amendment right of our citizens to participate in it - is surely being undermined. The huge amounts of money required to seek and win election to public office and the appearance of corruption attendant thereto threaten fundamental democratic principles." (Emphasis added.)

The Federal Appellant court denied their plea based upon Buckley v. Valeo, the 1976 U.S. Supreme Court case incorrectly cited for the notion that campaign spending has absolute protection under the free speech clause.

The Situation in North Carolina
North Carolina General Assembly races are precisely such a "blight" and have undermined the most fundamental democratic principle of equal participation in self-government. Research by the non-partisan, non-profit organization Democracy South reveals that 90 percent of donations to NC PACs, parties, and candidates comes from less than one percent of the citizens of NC. Winners of General Assembly election from 1992 through 1998 outspent losers by a margin of approximately 2 to 1. Controlling for the major variables that may have some effect on electoral results, analysis of recent elections to the General Assembly reveals a strong, consistent, and statistically significant correlation between electoral spending and the results of elections.

If a person cannot demonstrate the ability to raise large amounts of money, he or she is not considered a viable potential candidate, regardless of qualifications or popular support. Persons with views or interests inconsistent with those of business or wealth are denied meaningful participation. Voters with such views and interests are likewise denied a meaningful opportunity to have a candidate of their choice even on the ballot. Hence, electoral debate and public policy favors the wealthy. The non-wealthy may have a technical "vote" on election day, but no meaningful voice.
We have one dollar, one vote rather than one person, one vote. Public policy is bought by the highest bidder.

Plutocracy Is Against the Law
Such practices of allowing private money to warp public elections and public policy violate many U.S. Supreme Court decisions dealing with voting rights. Candidate filing fees have been declared an unconstitutional violation of equal protection. So has a $1.50 poll tax on voters. Additional cases hold that the right of suffrage can be wrongly denied by debasement or dilution of the weight of a vote just as effectively as wholly prohibiting the free exercise of franchise; they say the constitution prohibits an electoral system that will consistently degrade a group of voters' influence on the political process as a whole; they say voters have a direct interest in maintaining the effectiveness of their vote. All the pieces are there to support the obvious conclusion that the constitution prohibits a campaign finance system that de facto makes obtaining elective office, or even getting on the ballot, directly related to wealth or access to wealth. But the federal courts and moneyed interests routinely cite Buckley for the proposition that any effective restriction on private money in elections violates the First Amendment.

Here may be one of the best kept secrets ever: Read what Buckley actually says about the alleged First Amendment right to spend money:

"...neither the right to associate nor the right to participate in political activities is absolute [and]...even significant interference with protected rights of political association my be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms."

In 1990 even the Request Court reaffirmed the compelling state interest to combat corruption and the appearance of corruption. In Austin v. Michigan State Chamber of Commerce the court upheld the statute making criminal the expenditure of corporate general funds in state elections. The criminal penalty was necessary not just to deal with the overt quid pro quo type of corruption, but a valid response to a "different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no relationship to the public's support for the corporation's political ideas."

The ramifications of that admission are profound.

But because relief under the federal constitution has not been forthcoming despite such compelling law and logic, North Carolina is the site of a first-of-its-kind lawsuit using the state constitution to challenge the current system of private money financing public campaigns.


Lewis Pitts is Director of the Mental Health Unit of Legal Services of North Carolina in Raleigh and represents a low-income voter in the lawsuit. The opinions expressed in this article are his and not necessarily those of Legal Services of NC.


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