Roberts Court: Government Must Be By, and For, the Wealthy

Everyone who thinks that the rich don't have enough influence on American politics can rest easier. In an expected but still depressing decision today, the Supreme Court struck down aggregate limits on how much an individual can donate to politicians and political parties within a 2-year window as a violation of the First Amendment. Having already made it impossible for Congress to place significant restrictions on campaign spending, a bare majority of the Court is now chipping away at the ability of Congress to place limits on donations as well.

It must be said that Chief Justice Roberts's plurality opinion in McCutcheon v. FEC has a certain logic if one accepts the key underlying premise. Relying on the Court's 1976 opinion Buckley v. Valeo, Roberts argues that the only legitimate reason for limiting campaign donations or spending is to address corruption. (Under this logic, Buckley gave Congress and state governments very little leeway to restrict campaign spending, but left them with much more latitude to restrict campaign donations.) According to the Court, "Congress may target only a specific type of corruption—"quid pro quo” corruption. Based on this premise, Roberts reasons that aggregate, as opposed to individual, limits do not plausibly address corruption: "the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits Congress views as adequate to protect against corruption." If a donation of $5,200 to nine candidates cannot lead to quid pro quo corruption, it's hard to see how a tenth or eleventh would. Therefore, legislative limits on individual donations can be consistent with the First Amendment, but limits on aggregate donations cannot.

As Justice Breyer explains in a powerful and frequently devastating dissent, this logic is overly simplistic. Most importantly, to define "quid pro quo" arrangements as the only corruption that Congress can address is far too narrow, and has no basis in the Court's precedents. The political process can be corrupted by the influence of money without outright bribery being involved. Congress has legitimate interests that go well beyond preventing quid pro corruption: an interest in upholding the integrity of the political process. As Breyer observes, this interest is inherent to the values of the First Amendment itself:

 

...the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters.

What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitutionally necessary "chain of communication" between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress' concern that a few large donations not drown out the voices of the many. [...]

The upshot is that the interests the Court has long described as preventing "corruption" or the "appearance of corruption" are more than ordinary factors to be weighed against the constitutional right to political speech. Rather, they are interests rooted in the First Amendment it- self. They are rooted in the constitutional effort to create a democracy responsive to the people--a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.

Breyer then goes on to detail how aggregate donations can be used to subvert the democratic process. It would be possible for donations for over a million dollars to a political party to be legal, and a wealthy donor would also be permitted to donate an addition $2.4 million to a party's national candidates for office. Parties will surely take notice of these large donations, a rather important potential source of the appearance of corruption given the the increasingly hierarchical, leadership-driven nature of our political parties in Congress. In addition, money given to candidates need not stay with that candidate. There's a reason why members of Congress in safe seats continue to raise large amounts of money; this money can be used to give to candidates in close races and create political debts that might be repaid in the future. The proliferation of PACS adds further potential for corruption: "without any aggregate limits, a party will be able to channel $2 million from each of ten Rich Donors to each of ten Embattled Candidates."

As Breyer argues, allowing the very rich to distort the marketplace of ideas to this extent is inconsistent with the very values the First Amendment protects. There is certainly the potential for restrictions on campaign donations or spending to be inconsistent with the First Amendment, but Congress needs much more leeway that the Supreme Court gives it here.

Admittedly, the straightjacket could be even tighter. Justice Thomas, in his concurrence, argues that Buckley v. Valeo should be overruled entirely and all legislative limits on donations be considered presumptively unconstitutional. It says something that none of the other Republican appointees were willing to go quite this far in explicitly requiring a government by and for the plutocracy. But it's also true that the superficially more moderate Republican justices may be headed to the same destination on a highway with a somewhat lower speed limit.

As Ari Berman of The Nation points out, there is a particularly cruel irony about the Roberts Court's attack on campaign finance reform in cases like McCutcheon and Citizens United. On the one hand, the Court is making it nearly impossible for Congress or state legislatures to reduce the influence of money in politics, holding restrictions unconstitutional even in cases where they don't suppress speech at all. On the other hand, the Court has been extremely hostile to the voting rights. On the one hand, they've upheld vote suppression at the state level even when these restrictions are directed at concededly non-existent problems. On the other hand, they've eviscerated the Voting Rights Act with an opinion that finds no discernible basis in the text of the Constitution or the Court's precedents. To the Roberts Court, money should talk as loudly as possible while ordinary voters can take a walk.

Comments

First Amendment proof defense against Kochs and friends buying all the next elections: matching funds for every candidate or incumbent for every dollar contributed by anybody. Only mechanical answer possible.

Just like legally mandated, centralized bargaining (where everyone doing the same kind of work in the same locale negotiates a single contract with every employer) is the only answer possible to the race-to-the-economic and political-bottom.

Instituting the latter may be necessary before we can institute the former.

Matching funds would facilitate incumbents working for us 100% of the time -- instead of raising money 50% of the time and "earning" it the other 50%.

Nothing could be easier than selling centralized bargaining (in place over a century in labor markets around the world -- including the worlds most respected economy; think VW). As I have been spamming for years, supermarket workers and airline employees (think the regionals) would kill for centralized bargaining (lots of others too -- try asking).

Nothing could be more exciting. Why do the Repubs have half the Congress? Because the Dems never venture out with something everybody would die for (or kill for).

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