I am ever in awe of Chief Justice John Roberts. He has an unparalleled talent for making the sweeping seem small and the sharp seem mild. His rhetoric is all about sounding reasonable and earnest, even if (especially if) the outcomes of his rulings are anything but. He’s a champion of the long game. He’s Scalia’s stylistic opposite, the no-bombast justice. Isn’t it lucky for conservatives to have them both?
Roberts is at his minimizing best in his opinion today striking down a key portion of the post-Watergate campaign-finance laws. Congress may still “regulate campaign contributions to protect against corruption or the appearance of corruption,” he declares, and then whittles the definition of corruption down to a little nub that has nothing to do with how donors actually buy influence. And then Roberts tells Congress it can still achieve the ends of fairer and cleaner elections, it just has to alter the means it chose for getting there. Never mind that this Congress will do no such thing, just as it has failed to take up Roberts’ invitation last June to pass a new version of the Voting Rights Act. And also never mind that Congress had lots of evidence to support the means it already chose. Within the four corners of his opinion, it’s Roberts who gets to sound patient and wise.
In 1971, and then as amended in 2002, Congress set aggregate limits on campaign donations. For the current election cycle, individuals could give a total of $5,200 per candidate for each two-year congressional election cycle (plus more for PACs and parties), up to $48,600 total. Congress put this aggregate limit in place to close a loophole. Without it, lawmakers thought, wealthy donors would figure out how to circumvent the $5,200 per-candidate limits and write big checks. Their million-dollar donations, say, would supposedly be divvied up among many candidates, but actually funneled back to just one, or to the political parties. The idea was to prevent donors from buying great gobs of influence with either direct contributions or soft money.
Rick Hasen lays it out. Roberts justifies his decision to kill the aggregate limit by refusing to see ingratiation and access as corruption, which he defines down to mean only bribery. Congress can still regulate campaign donations to protect against quid pro quo corruption or the appearance of corruption—actual tit for tat. But what’s really going on here, as Justice Stephen Breyer points out in his dissent (more on it here from Dahlia Lithwick), is Roberts taking a few seemingly unimportant lines from Citizens United, the 2010 decision that opened the door to unlimited campaign donations by corporations and unions, and turning them into unquestionable support for his new slimmed-down definition of corruption. A “generic favoritism or influence theory … is at odds with standard First Amendment analyses,” the court said in Citizens United.
But that was a description, not the holding in the case. Nowhere did the court make clear in Citizens United that it was overruling the broader concept of corruption in the 2003 case McConnell v. Federal Election Commission. In that key decision, the court (with a different majority than today’s, naturally) upheld the soft-money restrictions in the McCain-Feingold campaign law of 2002 precisely because it understood corruption to encompass “privileged access to and pernicious influence upon elected representatives.” It’s basically impossible to recognize the realistic understanding of influence-peddling in McConnell with the narrow definition the court has now adopted. And that’s why Breyer writes his sad line: “Taken together with Citizens United … today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
Back in 2003, the court worried about soft money. Not any more. Breyer and Roberts fight over how many big checks will pour through now that the aggregate limits are gone. Roberts says it’s either illegal or “divorced from reality” for major donors to figure out how to get around the $5,200 per-candidate, per-cycle limits. Breyer walks through three plausible scenarios for doing exactly that. He shows how one donor could give $1.2 million in two years to one political party, or $2 or $3 million to one candidate. Sure, there’s some fancy footwork involved. But not that fancy. Breyer looked for cases brought by the Federal Election Commission to prevent donors from getting around one regulation that is key to Roberts’ argument—the one that blocks contributions to a political action committee to support a candidate to which a donor has already contributed, if he has “knowledge that a substantial portion” of his contribution will be used for that candidate. Going back to 2000, Breyer found exactly one case in which the FEC was able to prove the donor had this knowledge. And those were donations to PACs supporting Kansas Senate candidate Sam Brownback by members of his own family.
Every time the rules of campaign finance loosen, money finds new ways to get to the giver’s intended recipient. Surely that will be the case this time, too. As Breyer says, “in the real world, the methods of achieving circumvention are more subtle and more complex.” Roberts waves away these concerns by telling Congress to just tighten up if it sees new problems emerging. Restrict transfers among candidates and political committees. Make it harder to earmark donations. Rely on the benefits of disclosure. It will be Congress’s fault, not the court’s, if politics tilt further toward the rich.
Of course Congress will never do any such fixes. And even if Congress did get its act together, Roberts reserves for himself the last word. “We do not mean to opine on the validity of any particular proposal,” he says after reeling off his supposed congressional antidotes. It’s another mild and reasonable sounding bit of rhetoric with plenty of bite.