Five years ago, when the Supreme Court handed down the decision in Citizens United v. Federal Election Commission, polls showed that the American public—or at least a mere 80 percent of them—disapproved. Now of course public approval hardly matters when it comes to interpreting the First Amendment, but given that one of the important issues in the case was the empirical question of whether corporate free speech rights increased the chance of corruption or the appearance of corruption in electoral politics, the court might care at least a bit about what the public thinks constitutes corruption. Or why the public believed Citizens United opened the floodgates to future corruption. Or why it is that campaign finance reform once seemed to be a good idea with respect to fighting corruption in the first instance.
Now, in a kind of ever-worsening judicial Groundhog Day of election reform, the Supreme Court has, with its decision in McCutcheon v. FEC, swept away concerns over “aggregate” campaign finance limits to candidates and party committees in federal elections, finding in the words of Chief Justice John Roberts—who wrote the plurality opinion for the court’s five conservatives—that the “aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance.” In other words, since bajillionaires should be able to give capped amounts to several candidates, they should be allowed to give capped amounts to many, many, many candidates, without raising the specter of corruption.
As Richard Hasen argues, the decision is pretty awful insofar as it ignores precedent and opens the door for the next challenge to campaign finance reform (and the next one after that). Without even acknowledging that it is doing so, the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle. But the opinion also offers up such a supremely cramped notion of “corruption” as to rely almost exclusively on the quid pro quo bribery favored in the Gilded Age, wherein robber barons casually left fat sacks of cash around in exchange for political influence. Roberts has not been historically blind to the effects of public outrage on the legitimacy of the court; indeed, some have argued that this was the reason for his vote in the health care cases. So it’s interesting to read his opinion today as a meditation on electoral corruption, or what electoral corruption might look like to the rest of us. What does Roberts think Americans are worried about in the current political climate? Well, it seems we’re worried about how to most effectively spend our billions.
Roberts honestly seems to inhabit a world in which what really worries the average Joe about the current electoral regime is not that his voice is drowned out by that of Sheldon Adelson, but that he might be forced to spend his millions “at lower levels than others because he wants to support more candidates” or that he is too busy making billions of dollars at work to volunteer for a campaign, or that he has Jay Z and Beyoncé on standby to perform at a house party in the event that his billions are tied up elsewhere this week.
Really, it’s weird. The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment. We. All. Know. This. So how can the chief justice blithely assume the following:
Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties.
And since the chief can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption—or appearance of corruption—afoot.
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