Chief Justice Roberts and McCutcheon v. Federal Election Commission

Submitted by Elaine Magliaro, Weekend Contributor

First, there was Citizens United. Now, we have the Supreme Court’s recent ruling in the McCutcheon case. It does appear that our country’s campaign finance laws may have been “eviscerated”—as noted by Justice Breyer when he wrote that, taken together with Citizens United, McCutcheon “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.”

Corporations are people…money is speech. The more money one has to spend…the more “speech” one can afford to buy—especially where political campaigns are concerned.

Dahlia Lithwick (Slate), in writing about Chief Justice John Roberts after the court’s ruling in the McCutcheon case, said that it seemed 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.”

Amy Davidson (The New Yorker) said that Roberts relied on a very narrow measure of corruption in the McCutcheon ruling: “Ingratiation and access … are not corruption.” She added that the argument, in effect, is that political parties themselves cannot be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.”

Roberts wrote, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” Roberts explains what isn’t “quid pro quo” with regard to spending large sums of money on elections:

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 such 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 because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

Justice Roberts Hearts Billionaires: The chief either doesn’t believe, or doesn’t care, that money corrupts politics. (Slate)

The Devastating, Sneaky Genius of John Roberts’ Opinions: His McCutcheon decision pretends to be mild but then wrecks what remains of campaign-finance law. (Slate)

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact (Moyers & Company)

Justice Roberts Defends the Embattled Rich in McCutcheon (The New Yorker)

The John Roberts Project (The New Yorker)


287 thoughts on “Chief Justice Roberts and McCutcheon v. Federal Election Commission”

  1. rafflaw,

    I think you’ll enjoy this Mark Fiore cartoon video from March 2013:

    Scalia Archie Bunker
    Let’s visit that lovable Supreme Court father figure, Antonin Scalia, as he sings his homage to race and equality in the United States.

  2. Some attorneys are far more successful with the Supreme Court than others. And they are getting more work.

  3. Paul,
    Do you really believe that? Or maybe it is because the Chamber has the best attorneys? Or maybe the success rate is related to the Roberts court majority members where the rate has skyrocketed? My money is on the latter reason.

  4. We sure do appreciate the effort that Elaine puts into her postings. So well written and backed up by fact.

  5. Not So Risky Business: The Chamber of Commerce’s Quiet Success Before the Roberts Court – An Early Report for 2012-2013
    Doug Kendall
    Tom Donnelly
    May 1, 2013

    While most of the Supreme Court universe has been focused on the landmark civil rights cases on the Court’s docket this Term – blockbuster cases addressing affirmative action, voting rights, and marriage equality – the press has paid scant attention to the rest of the Court’s docket. Lost in this shuffle is an emerging story about the Supreme Court’s business-heavy caseload this Term and the Chamber of Commerce’s continued success before the Roberts Court generally. Although often ignored by the American public, these cases involve important issues with potentially far-reaching consequences for workers and consumers nationwide.

    This report is the latest in our continuing examination of the Chamber’s overall success before the Roberts Court. Since 2010, Constitutional Accountability Center has been tracking the Chamber’s Supreme Court activities and releasing related reports each Term. With the Court wrapping up the current Term’s arguments last week, now is a good time to check in on the Chamber’s track record so far and preview some of the significant issues still to be decided.

    The Chamber and the Roberts Court: An Update

    All told, the Chamber of Commerce has filed a whopping 18 amicus briefs this Term – just below its record number of 21 in October Term 2010. Overall, the Court will likely decide 76 cases this Term, meaning that the Chamber will have participated in roughly 24% of the Court’s decided cases.

    This in itself is an important story. For instance, during the final five years of the Burger Court – just before the first member of the current conservative bloc (Justice Antonin Scalia) assumed his seat – the Justices were hearing twice as many cases (between 153 and 160 per Term) as they are now. At the same time, the Chamber was filing in an average of seven cases per Term, or approximately 4% of the Court’s cases overall. Therefore, even as the Court is now hearing far fewer cases, the Chamber is participating in a greater number of them. Over the past thirty years, the Chamber’s participation rate has increased six-fold, from 4% in the early 1980s to 24% today.

    This dramatic increase in participation is a reflection, in part, of the Chamber’s success in shaping the Court’s docket. As SCOTUSblog reported in early April, the Chamber remains “the country’s preeminent petition-pusher,” as it filed the greatest number of amicus briefs at the cert. stage of any private organization during SCOTUSblog’s three-year study period (running from May 2009 to August 2012).[1] Importantly, the Chamber also has the highest success rate of any of the ten most active organizations during this period – with the Court granting 32% of the Chamber’s cases overall. Therefore, the Chamber is not just participating in cases that the Court decides to hear, but it’s also aggressively and successfully working to shape the Court’s docket.

    Finally, and most important, the Chamber continues to win the vast majority of its cases before the Roberts Court. Although many of the Chamber’s cases this Term are still pending, it’s already off to a strong start, winning six cases so far and losing only one[2] – a record that’s consistent with (and somewhat stronger than) the Chamber’s overall tally before the Roberts Court to date. Indeed, since John Roberts took over as Chief Justice and Justice Samuel Alito succeeded Justice Sandra Day O’Connor, the Chamber has prevailed in 69% of its cases overall (66 of 95 cases from 2006-2013).

    To place this overall success rate in historical perspective, it’s useful to compare the Chamber’s record before the Roberts Court to two other recent periods of relative stability on the Court – the Burger Court from 1981-1986 (the five Terms before Justice Scalia was confirmed) and the Rehnquist Court from 1994-2005 (the period that preceded the Roberts Court and involved no changes in Court personnel).

    Interestingly, the Chamber actually lost more cases than it won in the late Burger Court – amassing only a 43% success rate overall (15 of 35 from 1981-1986). The Chamber’s success rate then increased during the stable Rehnquist Court to 56% (45 of 80 from 1994-2005). And, finally, as mentioned above, it increased yet again during the Roberts Court to 69%. Therefore, during this 30-year period, the Chamber’s overall success rate has consistently improved – reaching its peak only in recent years.

  6. Elaine,
    As Hasen suggests in your latest link, the concern is that there will be direct large donations directly to candidates and the removal of the “appearance of corruptions” language. I submit that the 90% success rate by the Chamber of Commerce in argued or briefed cases in front of the Supreme Court suggests that the purchase is already complete.

    1. I would suggest that the Chamber of Commerce is successful because they have picked cases that they feel they can win at the appellate level.

  7. Opening the political money chutes
    By Richard L. Hasen
    April 7, 2014

    The headline about a new Supreme Court opinion rarely tells the whole story. Rather, the detailed reasoning of the ruling often reveals whether a decision is a blockbuster or a dud.

    When the court writes broadly, it can eventually remake entire industries, government practices or areas of the law. Lawyers and lower courts scrutinize an opinion’s every line and footnote, pouring over the legal reasoning and noting subtle changes from the court’s earlier decisions in the same area.

    This is why it is fair to call last week’s Supreme Court ruling in the campaign finance case McCutcheon v. Federal Election Commission a blockbuster case. In McCutcheon, the court struck down limits on the total amount that an individual could give to federal candidates, parties and certain political committees in an election cycle.

    The ruling is itself significant, and will channel a great deal of money into the hands of party leaders — opening up new ways for big donors to buy access to elected officials. But just as significant is the court’s reasoning — which could well lead to courts striking down what remain of campaign finance limits, including limits on contributions to individual members of Congress. We could be on our way to politicians accepting multimillion-dollar contributions from a single donor.

    Elsewhere I have explained many of the subtle but significant shifts in reasoning and definitions that turn McCutcheon from a narrow holding on “aggregate limits” into a broadside against most campaign finance limits. This led Justice Stephen Breyer, in his dissent, to say that Chief Justice John Roberts’ majority opinion “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.”

    Among the most important changes in Roberts’ opinion was the court’s defining “corruption” narrowly as akin to bribery — which makes it difficult to justify any challenged campaign finance limit.

    While McCutcheon’s narrowing definition of corruption has gotten attention, a related change by the court majority in McCutcheon has been all but ignored: the virtual disappearance of the “appearance of corruption” as a basis for limiting campaign contributions. Its troubling disappearance demonstrates the extent to which the Supreme Court majority is willing to ignore political reality for the sake of its extreme free speech views.

    The Supreme Court’s 1976 opinion in Buckley v. Valeo for the first time set out the basic ground rules for determining when campaign finance limits are acceptable under the First Amendment’s right of free speech and association. It held that contribution limits (which it said only marginally impinged on free speech rights) could be justified by the government’s interests in preventing either “corruption” or the “appearance of corruption.” On the latter, the court explained, “Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.”

    Writing in Buckley, the court drew an analogy to its earlier decision rejecting a First Amendment challenge to a law barring federal employees from engaging in partisan activities: “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’”

    In the years since Buckley, the meaning of corruption has wavered between a narrow concern about bribery and quids pro quo on the one hand and broader concerns about “undue influence” on the other. Before Roberts and Justice Samuel Alito joined the court, a number of opinions on contribution limits defined the term “corruption” broadly, and the term “appearance of corruption” even more broadly. As Justice David Souter wrote in a 2000 case, Shrink Missouri: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”

    Appearance of corruption, then, worked as a stand-in for the absence of direct proof of money buying votes. The “appearance of corruption” recognized the public’s broader concern that money can skew legislative outcomes.

    1. Elaine – weren’t you kind enough to deliver this to us several days ago?

  8. Supreme Court’s abomination: How McCutcheon decision will destroy American politics
    Thanks to Scalia and co., the rich will now be able to buy politicians as effortlessly as they buy anything else
    Paul Campos

    “Money talks,” Elvis Costello once observed, “and it’s persuasive.” The belief that this is especially true in the world of politics led to the passage of the Federal Election Campaign Act. In the aftermath of Watergate the FECA was strengthened in an attempt to limit the corrupting influence of money on politics, and, until 2010, the Supreme Court largely upheld Congress’s power to do so.

    That year the Citizens United case, which essentially found that the free speech rights of corporations were more important than legislative attempts to keep money from corrupting the political process, occasioned a great deal of outrage. But that case marked merely the beginning of what is likely to prove to be a series of increasingly successful assaults on campaign finance laws.

    And now, Wednesday, the next blow to attempting to keep the rich from being able to buy politicians as effortlessly as they purchase anything else has been struck by McCutcheon v. FEC, a Supreme Court case dealing with limits on how much money individuals can contribute to candidates.

    McCutcheon has now struck down overall limits on individual campaign contributions. This latest outburst of judicial activism in the struggle to render campaign finance laws completely toothless is merely accelerating a historical process that is coming to seem almost inevitable.

    To see why, consider the practical implications of the theory that weak or nonexistent limits on campaign finance will allow the rich to transform what is putatively a democratic republic into an unapologetic plutocracy.

    If money can buy the political outcomes desired by the super-wealthy oligarchs at the apex of our increasingly unequal economy, then there are only two possible ways to avoid this result. First, we can assume that that there is a strong distinction between law and politics, that judges make legal rather than political decisions, and that legal decisions, unlike political outcomes, cannot be bought.

    Or, in the alternative, we can construct a society that does not tolerate the sort of vast accumulations of individual and family wealth that would allow a tiny economic elite to buy both the legislative and the judicial processes.

    Pursuing the first alternative is obviously naive. If stupendous wealth is free to buy electoral results, it will also be free to buy judicial decisions as well. And, as the outcome in Citizens United demonstrated, this will not even require anything as crude as straightforward bribery.

  9. Eddie,

    Don’t do that again, this is a site that promotes civility as a general rule.

    1. Deletion notice: Eddie Haskell has had a comment deleted for a personal attack.

  10. Nick Spinelli

    Sometimes a change of scenery is helpful. Why doesn’t everyone mosey over to the new Supreme Court post on affirmative action. Lot’s of substance there.
    Yes, but not by the comment coup crew of two.

    Who continue the “I do not know what I am talking about but it never has mattered” mantra of denialism and forgetting, the two main “virtues” of mouthy fuels.

    1. I get the distinct impression that some peoples’ feelings are hurt.

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