US Supreme Court must not ignore inequality
In cases on campaign finance (McCutcheon v. FEC) and affirmative action, the US Supreme Court will again consider how best to ensure 'a level playing field.' The Roberts court should be careful not to favor an idealized principle of equal treatment that ignores social realities.
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A similar tension is at work in a case related to elections – specifically the role of money in campaigns. When the justices hear arguments in McCutcheon v. Federal Election Commission today, a high court ruling three years ago will be top of mind on both sides. Observers were surprised in 2010 when the court removed bans on corporate and union campaign expenditures in the case of Citizens United against the FEC. Such restrictions had been in place to protect elections from the potentially distorting effect of massive amounts of corporate and union money. But the court ruled these bodies could exercise free speech through advertising or other spending designed to influence elections, as long they remained independent of the candidates, themselves.Skip to next paragraph
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In McCutcheon, the court will revisit these issues in the context of direct contributions to candidates and parties. Current law limits the total amount that an individual can give to all political candidates or parties. The cap, argue those who would do away with it, limits the ability of individuals to express their political preferences over a full range of candidates across the country. The court will need to weigh that individual interest against the systematic interest in reducing the risk of corruption by limiting the flow of money – each year reaching new records – to present and future office holders.
These race and election cases share two critical features. First, they concern efforts to fine-tune the engines of social and political equality. Great disparities exist with regard to power and wealth in American society. Education and elections serve as gateways to change and mobility. Universities and elections both play a central role in producing the country’s future leaders. Affirmative action promotes a diverse educational environment that will foster learning and mutual understanding among the officials and citizens of our heterogeneous society. Fair elections can empower the previously disadvantaged.
The second common element is the absence of the pragmatic perspective of Justice O’Connor, who retired from the court in 2006. Appointed by President Ronald Reagan, she shared the overall political perspective of many of the justices currently pressing ideals of equal treatment and expressing great skepticism about special rules, whether for minority applicants, minority voters, or corporations. However, Justice O’Connor had served in the Arizona legislature. Her jurisprudence had a practical streak, perhaps reflecting her political experience in reconciling ideal goals with messy realities. She wrote the majority opinion upholding affirmative action and co-wrote the majority opinion validating the campaign finance regulation that was overturned by Citizens United.
No member of the current court has held elective office. This term will show how the sitting justices reconcile ideals of equal treatment with the continuing inequalities surrounding us – and perhaps also serve as a reminder of the value of diversity of experience on the court itself.
Robert A. Schapiro is dean and Asa Griggs Candler professor of law at Emory University School of Law.