Constitution Daily

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Constitution Check: Can the Supreme Court be blamed for low voter turnout?

June 7, 2012 by Lyle Denniston


Constitution Check: Fact-checking the news

Is the Citizens United case actually depressing voter turnout in elections? Lyle Denniston looks at the long-term trends behind low voter numbers and which part of the government can best address the issue.

The statements at issue:

“You can sift through a lot of numbers in last night’s election box score, but this one should get your attention: 43%.  That’s the percentage of voting-age Wisconsinites who chose not to vote in the Walker-Barrett contest.”

– James Rowen, political columnist for The Milwaukee Journal-Sentinel on-line edition June 6, commenting on the turnout of voters in Tuesday’s election on whether to recall Republican

Governor Scott Walker. His article was titled “If last night’s election couldn’t blow out the turnout, what will?”

“One in four Americans – 26% -- say they are less likely to vote because big donors to Super PACs have so much more influence over elected officials than average Americans.”

-- The Brennan Center for Justice at New York University, discussing one of the findings in a recent survey of Americans’ attitudes about big money in politics and the implications for democracy.

We checked the Constitution, and…

The Constitution does not create the right to vote – it does protect it, though – and the basic document does not have all the answers as to why voter turnout in American elections is chronically disappointing.   But a chorus of critics of big money in politics increasingly raises the complaint that the Supreme Court’s interpretation of the First Amendment as it applies to campaign spending is at least partly to blame.

To accept that, one has to follow this logical path: the Court in its decision in Citizens United v. Federal Election Commission two years ago turned loose “independent” spending on campaigns, in turn that led to the creation of Super PACs to exploit the opportunity, then once  Super PACs came into being, they quickly began out-spending the candidates themselves by multiples, and ordinary Americans get discouraged about who is running the show.

Some might argue that the 57 percent turnout in Wisconsin on Tuesday might disprove that syllogism.  There clearly was no “enthusiasm gap” in the hotly contested recall election, and yet two out of every five qualified to vote stayed home..  In that atmosphere, as columnist Rowen suggested, turnout should have been much higher.  The search for answers will go on, after this election as after others.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Still, one has to wonder what message was sent to Wisconsin voters, as they pondered going to the polls, by big money.  On the day before polling was to take place, a prominent story in Wisconsin and national media was that the pro-Walker forces had spent at least eight times as much as the anti-Walker forces, and much of the difference could be traced to out-of-state sources.   If the Brennan Center survey’s findings are sound, that might well have left quite a few voters with the notion that the outcome was out of their hands..

If a light rain, or a whiff of snow, can drive down turnout numbers, and if lackluster candidates or anemic issues can do the same, as has often been demonstrated, it is quite easy to speculate that a new and highly visible phenomenon like the rise of the Super PAC or other big money players will have a negative impact on voter intensity.

There are those in politics, of course, who argue that more spending is a healthy sign of more speech about politics; in a phrase, money talks, and more money can say more.  Citizens United, the advocacy group that won the case that bears its name, recently told the Supreme Court in a brief filed in a new campaign finance case: “Vibrant and unrestrained debate among all speakers is fundamental to the American political process.”

As the Supreme Court moves into other campaign finance cases, and more are on the way, the voting public and the politicians may want to pay attention to how the Court reacts to the real-world evidence that heavy spending is, indeed, getting to be much heavier, and that its main source has long since stopped being funds gathered at the grass roots from the people who actually are the ones entitled – with constitutional protection – to vote.

If there is hand-wringing over the issue of big money in campaigns, and there surely is, the answers are not necessarily to be found in the Constitution.  In fact, one of Washington’s most energetic promoters of campaign finance reform, Trevor Potter, president of the Campaign Legal Center, said in a recent speech that talk of amending the Constitution to deal with the problem “encourages avoidance of the hard work that should be done to solve these problems….There are legislative solutions…they just take legislative willpower.”

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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