Professor Steven Friedman
THE right-wing judges who are destroying democracy in the United States may be surprised to learn that they have kindred spirits in the Western Cape high court.
Supreme Court judges appointed by Donald Trump are dismantling democracy in the US by ruling that the President is above the law and protecting him when he ignores the constitution. But US democracy’s opponents began campaigning for judges who shared their view to be appointed well before Trump became President. In 2010, the Citizens United judgement showed that they were getting what they wanted. It ruled that corporations which spent money to influence politics were exercising freedom of speech. The law could not, therefore, stop this.
The ruling played a major role in the rise of the right. It enabled very rich people to set up Political Action Committees. They were not formally linked to a candidate or party but spent a fortune attacking candidates who opposed them and supporting those who did not.
It has greatly strengthened the power of a few wealthy people to decide what elected politicians should and should not support and is an important reason why there is a growing gap between what Americans tell pollsters that they want and what the politicians they elect do.
We would not expect a similar ruling from this country’s courts. Judges here are not appointed to do what rich right-wingers want them to do and the constitution the courts must apply reflects democratic values.
A Local Echo
But a court here has indeed made a very similar ruling.
Three Western Cape High Court judges have just handed down a decision in a case brought by the non-profit organisation My Vote Counts. It wanted the court to declare aspects of the law governing party funding unconstitutional. It hoped to win its support for clearer and tighter control of the amount donors can give a party and how much they can spend before the party must make their donations public.
Its concern has been heightened since it brought the case because the President, with the support of most parties in Parliament, has just doubled the amount any donor can give a party from R15m to R30m and that at which the donation must be disclosed to the people from R100 000 to R200 000.
The judges rejected its application. Most of their arguments centred on points of law. But they also weighed in on the effect on democracy of forcing parties to disclose how much the rich give them and to limit how much anyone can donate.
They firstly declared that the R15m which donors were allowed to give was only a fraction of the R332m which one party, the Democratic Alliance, spent on the last national election. So, it added, the amount allowed was too small to influence the behaviour of any party. Since the new amount is still less than 10% of what the DA spent, the court would presumably have no problem with it either.
It added that donations to parties allowed citizen to take part in their activities, giving expression to the rights to take part in party politics guaranteed by the constitution. Donations amounted to ‘a general support for the candidate and his/her views.’ This, it says, ‘accords with the ruling that the right to freedom of expressions should not be interpreted narrowly.’ The ability to donate to parties ‘gives expression to the right to freedom of association.’
While there are minor differences, the thinking in these sentences is the same as that behind Citizens United. Party donations are not a lever which the rich can use to buy favours – they are a healthy expression of political activism, free speech, and free association.
This part of the judgement is even more open to allowing the rich to spend whatever they like on funding parties than the US ruling. Citizens United applied, formally, not to direct funding of parties and candidates but to attempts to influence opinion. So even a court determined to give billionaires free reign did not openly say that the wealthy should be able to give as much as they like to any party or candidate they choose. But that is precisely what this section of the Western Cape judgement endorses.
Same Effect
The effect here may well be the same as that of the American judgement.
It is important to remember why the amounts donors can give in secret are being raised. Not long ago, this country had no controls on party funding. Then a law introduced the R100 000 and R15m limits. Parties, particularly the larger ones, found that donations dropped sharply. And so, when the ANC moved to double the limits, most of the other parties supported it.
If donations really were about citizen participation, free speech, and political activity, none of this would have happened when parties were forced to reveal large donations. Citizens do not keep their participation in politics secret and speech is free only when it can be said out loud for anyone who chooses to listen. If donations really were the contribution to political life which the judges portray, the law would have made no difference at all.
The donors reacted as they did because they don’t want us linking the amounts parties receive from them to the policies and laws which they support. This has nothing to do with broadening democracy and everything to do with buying influence.
Rights guaranteed in the constitution are meant to be enjoyed by everyone, not a select few. And so, if donations really were a way of allowing many people to take part in politics, the parties would not insist on doubling the R15m limit. They want it doubled precisely because there are only a handful with the means and the will to give and the politicians want them to be able to give as much as possible.
And, if the amounts donors can give are not vital to the parties, as the judgement claims, why do they devote so much time and energy to trying to persuade donors to give them money?
If the judgement’s logic is followed, the country will get not the healthy participation about which the judgement fantasises but even more influence buying. The will of the rich will be heard over that of the people and democracy will continue, as last week’s column argued, to allow people with wealth and power to avoid accounting to the people. And so we will follow the path of the United States after Citizens United.
One other aspect of the judgement is also worth mentioning. This country’s elites now put huge faith in courts to settle political disputes and so we are encouraged to have great regard for the political opinions of judges. When the Zondo Commission went beyond saying who was guilty of state capture and recommended changes to presidential elections and how parliament should run which would have created problems rather than solving them, the public debate complained loudly.
A judgement which entirely misreads why donors give money – and which hails as a triumph for democracy a free pass for the rich which could severely weaken it – reminds us that a grasp of the law is no guarantee of any understanding of politics.
This opinion piece originally appeared in Prof. Steven Friedman’s weekly column, Against the Tide. To subscribe to the column, click here.
