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. Paul Schulte

    AY – Dredd and I are in a discussion. You are not part of it.
    Daylight prevails over darkness in my preferences, therefore AY is always welcome.

  2. The ‘McCutcheon’ decision explained — more money to pour into political process
    Welcome to the dawn of the ‘jumbo’ joint fundraising committee
    By Michael Beckel

    Will McCutcheon affect state laws too?

    McCutcheon’s ripple effect could soon be coming to a state near you, and with it, more money from wealthy donors. At least eight states — and possibly as many as 20 — could see laws overturned, depending on how regulators, government officials and judges interpret the McCutcheon ruling.

    How is the McCutcheon case different than Citizens United?

    The Citizens United decision in 2010 didn’t affect contribution limits to candidates or parties. It affected spending. There’s a difference. Citizens United, along with a lower court ruling, allowed for unlimited donations from corporations, unions and individuals to go to super PACs and nonprofits, which, in turn, could spend the money on ads blasting or praising candidates. That’s not considered a corrupting influence because these groups are banned from coordinating their spending with candidates.

    Why are some people so concerned about McCutcheon?

    Campaign finance reform advocates are concerned about a sort of systemic corruption that may arise through the formation of jumbo joint fundraising committees. The leader — possibly a ranking party member — might become a sort of power broker, and the person who wrote the check would no do

  3. The American Government Is Open For Corruption
    By Charles P. Pierce
    April 2, 2014

    And John Roberts apparently resides on Neptune. And, in case you didn’t get the point.

    “Finally, disclosure of contributions minimizes the potential for abuse of the campaign finance system. Disclosure requirements are in part “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Citizens United, 558 U. S., at 367 (quoting Buckley, supra, at 66).They may also “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Disclosure requirements burden speech, but, unlike the aggregate limits, they do not impose a ceiling on speech.”

    Having earlier argued that there was a First Amendment issue to be found in the aggregate limits because they hindered an individual’s right to participate in the political process — It is here helpful to note the everlasting irony of Antonin Scalia’s view of Bush v. Gore. There is no individual right to vote, but an individual’s right to purchase a candidate must be untrammeled — but here, Roberts is saying it plain. To restrict money is to restrict speech. Period. And the only real legal restraint on the wholesale subletting of American democracy is John Roberts’s strange devotion to “disclosure” as some sort of shaming mechanism within the electorate. Good luck with that one.

    Justice Stephen Breyer takes up a lot of these points in his dissent, most notably, the majority’s laughably narrow definition of what political corruption actually is — that political corruption exists only if you buy a specific result from a specific legislator. But it hardly matters. The five-vote majority in favor of virtually unlimited corporate and individual spending in our elections is a rock solid one. Four days after almost every Republican candidate danced the hootchie-koo in Vegas to try and gain the support of a single, skeevy casino gazillionnaire, the majority tells us that there is no “appearance of corruption” in this unless somebody gets caught putting a slot machine in the Lincoln Bedroom on behalf of Sheldon Adelson. Money talks. Big money repeats itself, over and over, age after age.

  4. Thanks, Gene. I’m quite certain that you understood the direction that wind was blowin’… just as I’m sure that Buddha is laughing.

    “God doesn’t make the world this way. We do.” -Rorschach

    And what a fine mess, huh?

    As to Homer? Thanks for the laugh and an excuse to post this:

  5. Propaganda can be defined as style as an obfuscation over substance at the expense of truth, thus illustrating that methodology impacts veracity. Which in turn calls in to question the motives of those using suspect methodology. Even non-sequitur can be causal in semantics and rhetoric.

    Just sayin’.

  6. Paul,
    I am in no position to “bless” anything. Only Prof. Turley can do that. I am merely suggesting that you and no one else can decide what is discussed and how it is discussed and presented. Once again, only Prof. Turley has that authority.

    1. rafflaw – this is your direct quote “No one person dictates what anyone on this blog wants to discuss.” That is what I responded to. 🙂

  7. Two quotes for you, ap.

    “You see, Doctor, God didn’t kill that little girl. Fate didn’t butcher her and destiny didn’t feed her to those dogs. If God saw what any of us did that night he didn’t seem to mind. From then on I knew… God doesn’t make the world this way. We do.” – Rorschach

    “Go crazy? Don’t mind if I do!” – Homer J. Simpson

  8. 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.

  9. Good…. Now Jon…. If you can see… I haven’t posted on anything else…. I was defending myself…. If I can’t defend myself after being attacked… Then why continue here…. You are unequally enforcing your rules of civility…..

    You can’t or won’t defend your guest bloggers…. When they are attacked… What good does it do to even post here anymore….

    1. AY, your post was deleted for continuing to engage in name calling or personal attacks. You did not send any post to me by email that you claim violates the policy but I looked and I did not find a violation. You clearly either refuse to comply with the policy or find it impossible to comply. Indeed, you now have the record of deletions by my count in the history of this blog. You have been invited to engage with us on the merits of these important issues. However, you have continued the pattern of personal digs. We all understand that you feel singled out and that this blog is run in a facially absurd fashion. It is time to move on so please conform with our policy or seek a dialogue on a blog that you consider better managed.

  10. Deletion Notice: Anonymously Yours and RTC have had posts deleted for violation of the civility rule. Please comply with our policy if you want to continue to post on this site.

  11. Paul,

    Weren’t you the one on another thread debating my writing syntax…. Style…..

  12. rafflaw – I am so glad to hear that. Others on here have often been offended when I tried to add a slightly different twist to the same general subject. Thanks for the blessing. 🙂

  13. RTC – would you like to point me to one of those threads with tens of thousands of comments?

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