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.
SOURCES
Justice Roberts Hearts Billionaires: The chief either doesn’t believe, or doesn’t care, that money corrupts politics. (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)
Heeere’s Johnny: ‘Access’ and ‘Ingratiation’ in the McCutcheon Decision
by Christopher Brauchli
4/12/14
https://www.commondreams.org/view/2014/04/12-3
Exceprt:
No matter whether th’constitution follows th’ flag or not, th’ supreme coort follow th’ iliction returns.
—Finley Peter Dunne, Mr. Dooley’s Opinions
As usual, I am indebted to readers whose perceptive questions cause me to reflect on matters raised by them. The question this week is
A smiling Chief Justice John Roberts. (Photo: Wikimedia Commons)
why Chief Justice John Roberts did not insert any smiley faces in his opinion in the case of McCutcheon v. Federal Election Commission. It is obvious to any reader of the opinion that he was having a good time writing that opinion and the friendly gloss he bestowed on bribery would have been enhanced by a smiley face. Since we have incorruptible politicians running the country (except for the few who inadvertently end up in jail) Chief Justice Roberts and four of his colleagues assure us we need not be alarmed by the effect of gifts of large sums of money to the campaigns of those seeking elected office.
It is difficult, but not impossible, to select one sentence in 46 pages of the Chief Justice’s opinion that stands out as the most amusing. A good candidate is found on page 2 of his opinion, however, where he says: “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” For the benefit of my non-lawyer readers, “general gratitude” is not a term taught in law school nor is it a particular word of art. It simply describes the warm feeling a political candidate has upon receiving a large sum of cash from someone who, before the gift, was a complete stranger. To bolster that bit of jurisprudential nonsense the Chief Justice hearkens back to an earlier triumph in judicial nonsense, Citizens United v. Federal Election Comm’n. He quotes approvingly from that opinion that: “Ingratiation and access . . . are not corruption.” (“Ingratiation” is the product of “general gratitude.”) Those are but a couple of the Chief Justice’s attempts at whimsical analysis. Early in his opinion he approvingly notes that the Court has historically said that Congress cannot “regulate contributions simply to reduce the amount of money in politics or to restrict the political participation of some in order to enhance the relative influence of others.” What the Chief Justice means by “enhance the relative influence of others” is that if the election process were a level playing field, the poor and the rich would have exactly the same opportunity to influence the outcome of the election. Money would not make a difference. The result of that would be to deprive the wealthy of the ability to obtain “ingratiation and access” that large contributions give them. Chief Justice Roberts observes that current law permits a voter to contribute up to $5,200 to nine candidates but not an additional $5,200 to a tenth. If there are more than nine candidates the wealthy voter would like to support, “the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences.” That he describes as a “clear First Amendment” harm. It penalizes the voter for “robustly exercising his First Amendment rights.” He observes that working for a candidate by going door to door on the candidate’s behalf is no substitute for giving money since if a voter wants to support 50 candidates the voter cannot possibly have enough time to do canvassing for all 50 candidates. By removing the limit on the total amounts a voter can give during an election cycle, a voter can contribute in a meaningful way to the campaigns of 50 or even 500 candidates.
George Soros and Mike Bloomberg are very happy with this decision.
Opening the political money chutes
By Richard L. Hasen
APRIL 7, 2014
http://blogs.reuters.com/great-debate/2014/04/07/opening-the-political-money-chutes/
Excerpt:
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.”…
The Supreme Court’s opinions are themselves actually promoting the appearance of corruption. On the day McCutcheon was decided, I spoke at a luncheon honoring the California Supreme Court and criticized the U.S. Supreme Court for failing to pay attention to facts and evidence in election cases. I quoted from Justice Anthony Kennedy’s majority opinion in Citizens United, the earlier Supreme Court case that allowed corporations to make significant contributions to elections. Kennedy wrote: “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Further, “[t]he appearance of influence or access…will not cause the electorate to lose faith in our democracy.”
Kennedy’s remarks were huge laugh lines in my speech. No one in the public is buying what the court majority is selling anymore. People have become cynical about the role of money in politics.
We will now learn what happens to public confidence in an era of big money going into politicians’ pockets. The court may not call it “appearance of corruption.” But to the general public, that’s just how it looks.
I read all the comments and then forgot what the topic was about. Someone up there said that Snowden and Assange should come forward and present their defenses. That is what the Germans told the Jews in 1944. Come out of that attic in Amsterdam young lady and explain why you are a Jew. Yeah, right.
Al – that is the oddest comparison I have seen in awhile. Comparing Snowden and Assange to Anne Frank is illogical.
I can only hope Paul Krugman doesn’t happen to read this post where he has been subject to such nuanced, thoughtful and scholarly attack.
Imagine!
Bulimia!
Horrors!
Be carful….. The only one who cares what you think and actually communicates with you is an ardent warren supporter……
Gee, I thought it was Saint Warren. You mean all those laments that he doesn’t pay enough taxes was bullshit?? You mean he wasn’t just playing both sides?? You mean he didn’t cut a check to the treasury for the taxes he thought he should have paid?? Shocking!
Warren Buffett
Warren Buffett used to be a reasonable guy, blasting the rich for waging “class warfare” against the rest of us and deriding derivatives as “financial weapons of mass destruction.” These days, he’s just another financier crony, lobbying Congress against Wall Street reform, and demanding a light touch on—get this—derivatives! Buffet even went so far as to buy the support of Sen. Ben Nelson, D-Nebraska, for a filibuster on reform. Buffett has also been an outspoken defender of Goldman Sachs against the SEC fraud allegations, allegations that stem from fancy products called “synthetic collateralized debt obligations”—the financial weapons of mass destruction Buffett once criticized.
See, it just so happens that both Buffet’s reputation and his bottom line are tied to an investment he made in Goldman Sachs in 2008, when he put $10 billion of his money into the bank. Buffett has acknowledged that he only made the deal because he believed Goldman would be bailed out by the U.S. government. Which, in fact, turned out to be the case, multiple times. When the government rescued AIG, the $12.9 billion it funneled to Goldman was to cover derivatives bets Goldman had placed with the mega-insurer. Buffett was right about derivatives—they are WMD so far as the real economy is concerned. But they’ve enabled Warren Buffett to get even richer with taxpayer help, and now he’s fighting to make sure we don’t shut down his own casino.
Seems to me the people who control the press, the networks, & analogous are the problems. Where do ceasing to work politicians go with their taxpayer retirement ? Check it out ? Often by attracting clients or funds, if an attorney, or a pundit in a 501 (c) ? What is the difference between a labor union, a corporation, & a political 501(c) ? Was it not JFK who said: Life is not fair ? What party did he belong to ? The better answer is elect the best candidate to office. How do you do that ? Check out their curriculum vitae. If you don’t why not – otherwise it is just political oblige.
Is this the same John Roberts who provided the “professional courtesy” of morphing an interstate commerce argument into a taxation argument understanding that the issue had been presented to the electorate as absolutely NOT taxation which would have killed it post haste?
Could that be construed as a complete dearth of objectivity in the face of an ideological agenda and no respect for the electorate’s aversion to taxation? Did the elite Justice know better than the voter’s what’s good for them and impose it? Why would Roberts assign less weight to public polling against raising taxes and a fraudulent presentation to the public thereof, than to an ideological agenda?
John Roberts.
Can you say credibility? Dominion, yes. Credibility, no.
Just some thoughtful reading for an Easter Sunday.
http://www.nationalreview.com/article/376053/united-states-swat-john-fund
Strange, but only George Soros is involved in a nasty palimony suit with his ex-girlfriend. All the Kochs seem fine.
Wouldn’t put it past a psychopath…..
I’ve heard the Koch Brothers kill puppies and kittens for pleasure. Today they reportedly killed little bunnies.
If Snowden and Assange have a defense, let them come forward and make it.
Exposing corruption and deceit in government is defensible…… Stealing oil from native Americans is I guess as defensible……. If you have no conscience….
I see no verifiable record of conviction…
Well, we have admissions of guilt from both Snowden and Assange. We do not have an admission of guilt from the Koch Bros. We have an accusation, but nothing more.
Innocent until proven guilty…. Right?
Assange and Snowden have admitted their guilt. They are just avoiding prosecution. 🙂
Snowden and Assange opened the entire cookie jar.
Hmmmm Paul….. Interesting….. Then why the man hunt for Jullian Assange and Edward Snowden…..
Annie – oddly enough, opensecrets is funded by Soros. Not sure this is a reliable source on the topic.