Five years ago, when the Supreme Court handed down the decision in Citizens United vs. 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 vs. 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 in Slate, 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 this week 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 Las Vegas magnate 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.
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.” 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 this week 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.
Dahlia Lithwick writes about the courts and the law for Slate.