Roberts spends a tremendous amount of time in his plurality opinion boxing with Justice Stephen Breyer, who wrote a lengthy dissent in the case decrying the narrow view of corruption advanced by the majority in its efforts to end-run the aggregate limits. As Breyer puts it:
The anti-corruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.
As though he is dealing with an idealistic child, Roberts picks apart Breyer’s analysis of “the public’s interest” in “collective speech.” He dismisses Breyer’s concern about the necessity to protect “collective speech” by suggesting that such a view will privilege “the will of the majority, and plainly can include laws that restrict free speech,” as though the primary interest in drowning out the 99 percent is about protecting unpopular speakers. He suggests that the system was already too easy to game in the first place, ignoring the Roberts court’s role in creating that mess.
Breyer is quick to call out the chief justice’s narrow reading of quid pro quo corruption, noting that Roberts specifically excludes any efforts to “garner ‘influence over or access to’ elected officials or political parties” (#burlapsacks). Breyer tersely writes: “Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.” The First Amendment doesn’t protect speech for its own sake, he continues: “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.”
And why does this collective speech matter? Why are we talking about corruption? Because, writes Breyer: “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.” And yes, there is a silent “duh” in there. Breyer may seem hopelessly naïve or idealistic next to Roberts, but what he writes in dissent today seems to reflect fairly accurately what most Americans view as the appearance of corruption when the 1 percent of wealthiest political contributors are allowed to give unlimited funds to political candidates and party committees: “The ‘appearance of corruption’ can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether,” Breyer notes. “Democracy, the Court has often said, cannot work unless ‘the people have faith in those who govern.’ ”
That assessment is both a fairly accurate description of the status quo, when it comes to money in politics, and a predictor of how the public will likely react to the news that one of the last remaining efforts to curb the influence of big money in politics was just vaporized by the Roberts court. Breyer goes on to detail in his dissent how aggregate contributions can be used to work around the democratic process. (Actually, he pretty much writes the handbook.) But he almost needn’t bother. He may be childishly wedded to the old-fashioned notion that pouring ever more billionaire dollars into electoral politics is nobody’s idea of freedom, good government, or equality. But I believe him. I suspect most Americans will as well.
That leaves three possibilities for the chief justice’s divorced-from-reality decision about the relationship between corruption, huge money, and politics today: Either he thinks Americans really don’t see any connection. Or he doesn’t care what we see or believe. Or he really doesn’t think that candidates dialing for big dollars constitutes corruption. None of these alternatives is pretty. But I worry that the court has located itself so outside the orbit of the 99 percent that it simply doesn’t matter to the five conservatives in the majority that the American public knows perfectly well what bought government looks like and that Breyer is describing a level of cynicism that has already arrived. Worse still, I worry that it matters very little to them that we will stop voting, donating, participating, or caring about elections at all in light of this decision to silence us yet further. In which case McCutcheon is a self-fulfilling prophecy in exactly the way Breyer predicts: Money doesn’t just talk. It also eventually forces the public to understand that we don’t much matter. It silences. It already has.