Give John Roberts his due: he’s a deft politician. Faced with calls from the right to upend the Affordable Care Act, a decision that would have caused a great uproar, the Chief Justice came up with an obscure argument about taxation that few people had hitherto considered, in support of a five-to-four ruling that President Obama’s health-care reform, or most of it, was constitutional. That was almost two years ago. Having avoided bringing the Supreme Court into disrepute during an election year, Roberts evidently feels confident enough to continue the Court’s assault on the campaign-finance laws, which is fast emerging as the signature contribution of his tenure.
In striking down the aggregate limits on contributions that people can make to politicians and political parties, but leaving in place the limits on contributions to individual candidates (currently $5,200 per election cycle), the Court didn’t go as far as it did in the Citizens United ruling, in 2010. That travesty amounted to a do-as-you-please charter for politically motivated billionaires like Charles and David Koch, Sheldon Adelson, James Simons, and George Soros. But Wednesday’s decision, once again a five-to-four ruling, represented another significant step away from the antiquated principle of “one person, one vote” toward the more modern, and utilitarian, notion of “one dollar, one vote.”
The plaintiff in the case was Shaun McCutcheon, a conservative Alabama businessman who sued the Federal Election Commission and was joined in the suit by the Republican National Committee. As is usually the case when the subject is campaign finance, the Court avoided declaring, straight out, that rich people have the right to buy elections. That would be too blatant. It might even offend the sensibilities of the five conservative justices, some of whom appear to have convinced themselves that, rather than carrying water for rich and powerful interests, they are merely adjusting the laws to reflect the original wishes of James Madison and Thomas Jefferson. I think you need to have grown up in America to take that sort of stuff seriously. Since I didn’t, I can’t. But it’s always an interesting exercise to analyze the reasoning that the justices—conservative and liberal alike—use to justify their a priori beliefs, alignments, and prejudices.
In this case, as in Citizens United, Roberts and his cohorts relied on a twisted reading of the First Amendment that regards giving money to candidates as a form of political speech. The government can justify restricting such speech, Roberts wrote in Wednesday’s ruling, only if it can point to a concrete and identifiable quid pro quo between the donor and the recipient. He went on:
But what is this “line,” and where does it exist, other than in the head of the Chief Justice and his colleagues? It is conceivable, I suppose, that Roberts doesn’t read the newspapers or watch cable news. Maybe he is unaware that Adelson, for instance, has just watched Jeb Bush, Chris Christie, and several other would-be G.O.P. Presidential candidates pay homage to him at an event in Las Vegas. Maybe Roberts is also unaware that Adelson runs the Sands casino empire, and that he is a fanatical opponent of a Palestinian state. Or maybe Roberts does know these things, but believes that Adelson and his wife, who reportedly donated more than ninety million dollars to Republican candidates in the 2012 cycle, are willing to write large checks to politicians without receiving assurances that, if elected, the recipients will dutifully oppose online gambling and a two-state solution.
Let us move on. As I said, Roberts is a smart fellow, and we shouldn’t insult his intelligence by suggesting that he believes in the tooth fairy. In addition to underpinning the post-Citizens United system, which allows billionaires like Adelson to buy about as much influence as they want through 501(c)(4) “charitable organizations” and Super PACs, the Court’s ruling will make it easier for rich people to contribute large sums directly to the politicians and political parties they support.
Under the old system, the total amount that a donor could give to candidates, parties, and political action committees during each federal election cycle was limited to $123,400. After the Court’s intervention, according to Democracy 21, a non-partisan group dedicated to reducing the influence of money in politics, wealthy individuals will be able to contribute more than three million dollars per election cycle to a political party and its slate of candidates.
Election-finance experts reckon that the most immediate outcome of the ruling will be the expansion of joint-fundraising committees, run by the major parties, which will aggressively solicit large donations and distribute them to individual candidates and political action committees. “The history of money in American politics is that officeholders, candidates and political operatives will do whatever they are allowed to do,” said Fred Wertheimer, the veteran campaign-finance activist, in a statement. “This is what we saw with the now prohibited soft money system in the 1990s. This is what we saw are seeing with the new era of Super PACs. And this is what we can now expect to see with candidates and parties using joint fundraising committees to raise seven figure contributions.”
A cynic, or a party chairman, might say that such a system would be an improvement over the current one. The big money, at least, would be funnelled through the Republican National Committee and the Democratic National Committee, rather than through shadowy Super PACs. Reince Priebus, the chairman of the R.N.C., described the ruling as “an important first step toward restoring the voice of candidates and party committees and a vindication for all those who support robust, transparent political discourse.” Priebus’s self-congratulatory statement went on, “I am proud that the RNC led the way in bringing this case.… When free speech is allowed to flourish, our democracy is stronger.”
If you note something of a resemblance between the language of Priebus and Roberts, you aren’t the only one. About the only Republicans who criticized the ruling were Clarence Thomas and John McCain. Thomas issued a concurring opinion saying that the Court’s ruling didn’t go far enough: if he had his way, he would have chucked out the limits on contributions to individual candidates, as well. He called the McCutcheon case “yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment.”
McCain, who, on this issue, anyway, is still the old McCain, issued a statement lamenting the ruling, adding, “I predict that as a result of recent court decisions, there will be scandals involving corrupt public officials and unlimited, anonymous campaign contributions that will force the system to be reformed once again.” McCain is probably right. But between now and then, a period that could extend through numerous election cycles, the monied interests will be firmly in charge.
Photograph: John Gress/Corbis
