More than 20 years ago, then–Supreme Court Justice David Souter tried to warn that big money in politics risked turning United States officials into tools of an emerging “plutocracy.” We now know from recently released case files that Souter had to strike the language in his draft Supreme Court opinion in a 2000 campaign finance case, Nixon v. Shrink Missouri Government PAC, as the price to secure Justice Sandra Day O’Connor’s vote. It’s too bad, because Souter’s warning is one that American political leaders, including justices on the Supreme Court itself, needed to hear. That warning was never made and thus never heeded. Today, American plutocracy—from Congress to inside the walls of the court itself—is alive and well.
Justice Souter was one of the most important, if underrated, voices among Supreme Court justices on questions of money in politics. His opinion in Shrink Missouri and similar cases in the early 2000s offered a jurisprudence of the First Amendment that is so different from the current Citizens United–fueled era in which limits on money in politics are mostly meaningless.
Writing in Shrink Missouri, Souter opined that limits on huge donations were essential to a functioning democracy and the public’s confidence in it: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” This was an important warning, but Souter wanted to go much further. Souter’s original note of caution, not previously reported, to my knowledge, was that there existed “broader threat that politicians grown dependent on large contributions will lose critical independence and instinctively identify interests of a plutocracy with the public good.” Tragically, this is very much what has happened in 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’s important to understand the framework Souter was working in. The justice had a problem in how he described the problem of big money in politics: He had to frame everything in terms of preventing corruption rather than leveling the playing field among citizens. In a key 1976 case, Buckley v. Valeo, the Supreme Court upheld campaign contribution limits against First Amendment challenge by pointing to the government’s strong interest in preventing corruption and its appearance. But it rejected the idea that limiting money also could be justified to promote political equality: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
In 2008, I wrote about Souter as an emerging egalitarian who, in his judicial opinions, tried to repackage concerns about political inequality into an anticorruption framework so as to stay ostensibly consistent with the court’s earlier Buckley decision. Thanks to the release of some Supreme Court files of the late Justice John Paul Stevens housed at 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 upheld the limits as justified on anticorruption grounds and not a violation of the First Amendment. (It’s a decision that today’s much more antiregulatory Supreme Court has since effectively overruled.)
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 “improper influence” and “opportunities for abuse” that justified some campaign finance limits, Souter’s Shrink Missouri draft explained that in Buckley the court “made clear that we recognized a concern not confined to bribery of public officials, but extending to the broader threat that politicians grown dependent on large contributions will lose critical independence and instinctively identify 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 about the line, calling it an “unnecessarily sweeping definition of ‘corruption’ … one which goes beyond Buckley’s concern with quid pro quo corruption and the appearance thereof.” Souter agreed to remove the line, remarking to O’Connor: “You drive a hard bargain.” The new language more meekly described the broader threat of big money as “politicians too compliant with the wishes of large contributors.”
The omission was unfortunate because Souter’s original insight was profound and surely right. When politicians spend all their time around the super wealthy and depend upon their support, they will increasingly identify with their interests and values. And this is as true of Justice Clarence Thomas and his benefactor Harlan Crow as it is all of the presidential candidates who now depend upon megadonors to fund super PACs to support their campaigns.
When Souter wrote his opinion in 2000, we did not have—as we do today—donors giving tens of millions (and in two cases, more than $100 million) to outside groups that can work hand in hand with candidates so long as they have good lawyers to avoid legal pitfalls. It is no surprise that, as Marty Gilens and Benjamin Page have found, the interests of the super wealthy are much more likely to be reflected in public policy than the interests of the average American.
Souter’s statement about plutocracy was concerned not about corruption in the traditional sense, but about how money is corruptive of a democracy that values each voter as a person of equal worth. In my 2016 book, Plutocrats United, I argued that this concern was fairly characterized as one about equality, not corruption. But regardless of what label to put on it, Souter’s vision has since been decimated by a Supreme Court that has consistently rejected concerns about too much influence of wealth on politics.
Today’s Supreme Court allows only corruption as a potential interest to limit money in politics or to police bribery, and as it shrinks the definition of corruption ever smaller, it leaves more and more room for the plutocrats to have sway over politicians and over the justices themselves. Souter was right: the “cynical assumption that large donors call the tune” is proven true every day.
