Image for Protecting the nation from going down the US path ...

Readers interested in US politics will be aware of the appalling 2010 decision by the Supreme Court in the Citizen’s United Case, in which the majority ignored long-settled precedent to rule that corporations, unions and other entities can spend unlimited amounts on elections, so long as there is no direct link with the candidate or party officials. President Obama, shortly after, used his State of the Union address to condemn the decision as a catastrophe for American democracy.

‘With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests - including foreign corporations - to spend without limits in our elections.’

Chief Justice John Roberts, who helped write the majority judgment, publicly criticised the President for these remarks, and Obama’s press secretary explained,

‘The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.’

But Obama could do little to mitigate a decision which treats political power as a commodity to be bought and sold on the open market. It was, however, merely the latest in a series of rulings in which the right-wing cabal of the Court made a conscious decision to ignore legal precedent and constitutional principle in order to advance their own political views.

The Australian political process also has serious defects. We suffer from weak electoral funding laws, a dysfunctional Senate election system, the distorting role of lobbyists, a print media largely dominated by one owner and other flaws. But there have been no legal barriers to the reforms needed to protect the nation from going down the US path; in the absence of a bill of rights there was no protection of free speech upon which to hang a similar claim to privilege big money and devalue the votes of ordinary citizens.

This changed in 1992 when the High Court stated a principle of freedom of speech on public and political matters which it said was implicit in provisions the Constitution makes for representative government. In the words of Professor Anne Twomey of the University of Sydney Law School,

‘The basis for the implied freedom … is that (sections of) the Constitution require that the Houses of Parliament be directly chosen by the people.  To be a genuine choice, it must be a free choice that is capable of being an informed choice.  Hence, political communication is impliedly necessary to allow the people to make a free and informed choice.’

It was then a matter of time before the US arguments were put to Australian courts, notably by Jeff McCloy, a politician, civil engineer, property developer and former Lord Mayor of Newcastle who regularly made political donations - he said of the state’s politicians ‘they all come to see me for money, I feel like a walking ATM some days.’ But because NSW laws ban property developers making donations, he risked being found by ICAC to have engaged in “corrupt conduct”. To pre-empt this he argued in the High Court that the ban was invalid by reason of the implied freedom of political speech.

The Court found that the NSW laws did in fact limit this freedom but rejected his bold argument that, in the absence of a corrupt ie. ‘quid pro quo’ bargain, the freedom permitted him to make donations to secure the access he needed to influence politicians. This is, in fact, the US position - so long as there is no actual ‘corruption’, donations cannot be banned or capped.

In a major contribution to constitutional jurisprudence, the judgment of French CJ, Kiefer, Keane and Bell JJ used the same logic as the freedom of speech cases to state an egalitarian principle to complement it. This principle meant it was not necessary to prove a corrupt deal - a ‘linkage’ - to validate the NSW bans;

‘guaranteeing the ability of a few to make large political donations … to secure access to those in power would seem to be antithetical to the great underlying principle of representative government that involves equal sharing in political power’ (emphasis added).

The majority judgment repeated this in another seminal passage, adding that ‘equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution’.     
                                                                                                                                                                               
Professor Twomey, in a clear and succinct analysis, cites passages which leave no doubt that the remaining three judges - Gageler, Nettle and Gordon JJ., see this egalitarian principle as an essential part of the justification for limits and bans on political donations. In a submission to the Final Report of the Expert Panel on Political Donations of New South Wales, she concludes:

‘… the High Court gave very strong support to the imposition of limitations on political donations as a means of reducing or removing undue influence and facilitating the equal share of individuals in political power. It also recognised as a legitimate end the imposition of limits to prevent those with wealth from dominating political communication to the exclusion of others.’ (emphasis added).

It is easy to overstate the effect of this ruling in Australian law, because it does not create a ‘right’ to equal treatment comparable to the ‘equal protection’ clause of the Fourteenth Amendment, which famously broke the back of US racial apartheid in 1954 in Brown v Board of Education and succeeding cases. But this is no less true of the High Court’s freedom of political communication - the Court has been adamant that it cannot be read as creating a ‘jurisprudence of rights’ under another guise.

It has taken this stance out of respect for the doctrine of separation of powers and the conviction that unelected judges must not trespass on the role of parliament to legislate social policy. The same concern helps to explain the highly structured nature of these protections, with both the freedom and the egalitarian principle defined by technical doctrines which guide their interpretation and limit their scope.

But it is also easy to understate their role as principles which justify the new protections and their limits. For whenever the ultimate court in a judicial hierarchy appeals to abstract legal and constitutional principles to modify existing rules, there is an implied invitation to counsel to participate in the process by offering better interpretations. Good lawyers anticipate this responsibility when they prepare their submissions.

McCloy’s Case will be celebrated in the law schools and the after dinner speeches of judges for years to come. It deserves this status because it insists that equal respect is no less important than free speech in giving substance to democratic institutions. But also because it opens the door to a form of legal argument which ties legal principles to the abstract values of freedom and fairness which both explain and justify the system of government the nation has adopted.

It is difficult to understate the importance of this as a contribution to legal philosophy in general and to constitutional interpretation in particular. For the High Court has succeeded admirably where the current US Supreme Court failed miserably - it has shown how imaginative arguments of principle allow the constitution to be the best it can be in securing the underlying values it stands for.

*Max Atkinson is a former teacher at the University of Tasmania Law School with interests in legal theory and and international law.