The Plutocratic Jurisprudence of the Roberts 5 Regime: Episode VII
Justice Roberts' decision in the McCutcheon case shows that his faction of the Court is still living in the lost world of retail corruption depicted in the film American Hustle, while the nation - due to the plutocratic jurisprudence of the Supreme Court - has moved on to the much bigger and badder systemic form of wholesale corruption. His decision only makes the wholesale corruption worse by facilitating further concentration of control into the hands of about 400 billionaires, as the U.S. Solicitor General warned, without demonstrating any useful improvement in the "freedom of speech" which is supposed to justify the Court's wholly pernicious, and unconstitutional, interference in electoral politics.
By overturning federal aggregate limits on individual contributions to candidates and parties in McCutcheon v. Federal Election Commission, the Supreme Court on April 2, 2014 refitted the coin-operated political system it has maintained since 1976 so as to take larger bills from fewer patrons.
As Justice Breyer described the change, "without an aggregate limit, the law will permit a wealthy individual to write a check, over a 2-year election cycle, for $3.6 million.... Present aggregate limits confine the size of any individual gift to $123,200. Today's opinion creates a loophole measured in the millions."
The Roberts Court's 5-4 decision multiplying the maximum amount of money plutocrats may now invest directly in politicians and their parties by almost thirty times was entirely predictable. The only suspense was how the Court would attempt to squeeze its latest plutocratic jurisprudence under the sparse cover provided by the words "freedom of speech." It did so only by committing yet another blatant act of judicial supremacy, without bothering to provide much in the way of credible argument linking its ruling to the Constitution. Because it does not have to. It's Supreme.
McCutcheon provides the latest signal that the Court, lacking effective public opposition, will continue dictating laws for the country until a corrupt Congress is forced by the People to "check and balance" them with effective legislation stripping their jurisdiction over such political questions as election integrity and public corruption.
For a detailed background analysis of the case this writer's article published following the October 8, 2013 oral argument of McCutcheon may be consulted. That article concluded that at the "hearing of [McCutcheon], a majority of the Court indicated it would be the seventh Supreme Court decision overturning campaign-finance laws in as many years." The conclusion was foregone and is not now news to anyone who has been watching. But it is nevertheless worth considering the arguments contained in the three opinions from the Court for purposes of understanding how best to counter them.
The majority opinion is of little intellectual value. Detailed parsing would lend it undeserved dignity. It predictably provides superficial legal-sounding rationalizations, false analogies, and ipse dixits for empowering plutocrats which are factually, legally and institutionally unsound. Justice Breyer's opinion on behalf of the four usual dissenters, described by Harvard Professor Lawrence Lessig as "classically geeky," provides a tepid though serviceable summary: "The result ... is a decision that substitutes judges' [uninformed and institutionally invalid] understandings of how the political process works for the [expert and supported] understanding of Congress; that fails to recognize the difference between [democratic] influence resting upon public opinion and [plutocratic] influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform."
Breyer exaggerates only on the last point about "devastat[ion]". BeforeMcCutcheon there was nothing significant that "remain[ed] of campaign finance reform." The existing law had been described as "an unsatisfying, unworkable tangle that enormously complicates the practice of politics." It thereby serves to keep politics an impenetrable insider's game. But it does not keep money from corrupting politics, but rather legalizes bribery.
This writer cautioned against hyperbolic alarms about the actual impact ofMcCutcheon that are typical of fundraising pitches from professional activists: "We should not exaggerate what is at stake for most voters in the 2013 edition of the Roberts 5 annual 'whack an election integrity law' series.... By overturning aggregate limits for either candidates or parties, or both, in McCutcheon the Supreme Court ... will reduce from the fewer than .02% of citizens who now give more than $10,000 per election to maybe about 400 the number of plutocrats necessary to buy the federal government."
The United States was a plutocracy by any definition since at least beforeCitizens United and it will remain only a more narrowly owned plutocracy after McCutcheon. Ian Millhiser correctly assesses that "this decision benefits no one except for a handful of very wealthy donors."
Only from the remote perspective of the .02% can McCutcheon be described as either an "existential threat" or "a ruling that could fundamentally reshape the political terrain in the 2014 elections and beyond." (NY Times). Except for the political class of parasites dependent on the plutocrat's corrupt system as portrayed in Mark Leibovich, This Town: Two Parties and a Funeral - Plus, Plenty of Valet Parking! - in America's Gilded Capital (2013) (and who no doubt constitute a share of his and the Times' readership), the other 99% has no dog in the fight between multi-millionaires who can afford to invest in politics every year more than the American median income and the billionaires who can now invest millions in directly buying parties and candidates without having to employ sleazy Rovean middlemen. The absurd idea that McCutcheon has "broad implications" because it only now ends an "era of effective limits" on political corruption can mislead one to an equally bizarre proposition as that the "progressive ... way forward" could consist of "[g]reatly raising contribution limits."
The reality is that the country has been living with increasingly systemic corruption since 1976. Both parties quickly adapted to the new regime and a corresponding long term increase in inequality commenced that same year. The corruption has only accelerated and consolidated under a movement plutocrat Roberts Court since 2006. McCutcheon does not, as falsely alleged in the NY Times, "channel money away from the shadows and into the open." It adds a new larger channel for direct bribery to the existing indirect and darker channels already opened by the Court. It is for the plutocrat to decide which channel best serves plutocratic interests. There is no public interest involved.
There was no corporation to blame in McCutcheon, which involved a rich Republican. Since the case solely presented the far more significant issue of contributions by shamelessly plutocratic individuals, the deceptive"corporate personhood" soundbite propagated by professional activists like "Move to Amend," and recited by those deceived by them, cannot apply to this case. The source of the problem starkly exposed by McCutcheon cannot be spun as a Gilded Age doctrine that was resolved by FDR justices during the New Deal era, but which nevertheless makes a catchily oxymoronic slogan for diversionary professional activist fundraising today.
Instead C.J. Roberts builds upon a new doctrine which, unlike the antiquated "corporate personhood" doctrine, actually was discussed inCitizens United, in dicta. This new doctrine imposes a narrow definition of the only type of "corruption" that the People are allowed to criminalize, according to the constitutionally unauthorized diktat of the Roberts 5. In a trademark Roberts trick that he similarly used in Shelby County (2013) to overturn the Voting Rights Act, the Chief Justice relies on the dicta planted in Citizens United as if it were already well-accepted precedent. This new rule invented by the Court from thin air, planted in Citizens United and now sprouted in McCutcheon, severely limits Congress' and hence the People's power to effectively protect election integrity or prevent political corruption.
Roberts asserts, without explaining, that the bare First Amendment concept of "freedom of speech" somehow limits any legal prohibition of political corruption solely to laws targeting specific acts of individual bribery. Roberts' new rule thus broadly legalizes the more common and now pervasive crime of influence peddling that does not involve the cruder, and easily circumvented quid pro quo agreement to sell specific policy. Roberts decrees that "a direct exchange of an official act for money" is the only kind of political corruption that Congress may regulate. Prior to Roberts and his plutocratic henchmen, no previous Court had questioned regulation of the less crude forms of "influence and access" corruption and honest services fraud as valid concerns for citizens of a democracy.
Professor Lessig has pointed out the hypocrisy of the opportunistically "originalist" jurists such as Scalia adopting such an artificially constricted definition of "corruption," when "there is "no good originalist reason to restrict the meaning of 'corruption' to quid pro quo corruption alone." The founders originally had a far more expansive understanding of corruption and of the essential role of democratic elections in controlling it than do the faux-originalist Roberts 5. The five plutocratic justices who claim to stand in the shoes of the founders when convenient for justifying their 18th century views on social issues like race and gender, have turned the founders' most fundamental contribution to political thought on its head by reinstating the very tyranny by an aristocracy of wealth that the founders fought a revolution to overthrow, and wrote a Constitution to prevent.
It constitutes a blatant and unconstitutional act of judicial legislation for the Supreme Court to decree that the public has no valid concern in criminalizing more sophisticated forms of public corruption that may fall short of the shifting legal definitions of bribery -- a crime which is notoriously difficult to prosecute -- but which nevertheless have the same ultimate effect on undermining democracy and public integrity. Such a proposition is nowhere remotely suggested by any text in the Constitution, or its history, and obviously not by the phrase "freedom of speech." The survival of the consent of the governed cannot hang on the willingness of a perennial plutocrat like Sheldon Adelson, as described in the New Yorker, "to write large checks to politicians without receiving assurances that, if elected, the recipients will dutifully oppose online gambling and a two-state solution."
Roberts, as the Court has done in every decision legalizing political corruption, hides his judicial legislation behind a distorted interpretation of the abstraction embodied in the three words "freedom of speech," claiming that those three words allow the Supreme Court to mandate a system where elections may be freely purchased by plutocrats. Justice Breyer points out the original purpose of the First Amendment was to enable the People "to form a public opinion that can and will influence elected representatives." Corruption does not enable but rather undermines such freedom of speech. Breyer explains:
"Corruption breaks the constitutionally necessary 'chain of communication' between the people and their representatives. It derails the essential speech-to-government-action tie. 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. That is one reason why the Court has stressed the constitutional importance of Congress' concern that a few large donations not drown out the voices of the many."
After McCutcheon, corruption can theoretically trump the effective speech of all but those 400 plutocrats who already own as much wealth as half the nation. They can now legally steal even more from the other half by dominating the Supreme Court's lucrative pay-to-play system, without any regard for what the public may think or say about the policies enabling their plunder. Neither the Constitution nor any law of Congress gave the Court the authority to create such a system. But there is no obstacle on the horizon designed to stop them.
Justice Breyer's dissent demonstrates in several hypotheticals how, in the absence of aggregate limits, the PAC system can be used creatively by a single contributor to channel to a candidate all the money needed to win an election. Such manipulation, contrary to the view of Roberts who simply brushes aside this salient fact as unlikely to occur in practice, can easily violate even the Roberts-endorsed quid pro quo bribery interest. Surely a sole contributor can be expected to demand and systematically receive nearly anything a wholly-owned politician has to give, just as plutocrats owned politicians in the first Gilded Age. To support his argument that all will be well under his expanded license to corrupt, Roberts also blithely relies upon "the intricate regulatory scheme" of FECA, without any recognition that the agency with authority to enforce that scheme has proven to be an impotent paper tiger.
More importantly, Roberts provided no adequate response to the Solicitor General Donald Verrilli's most powerful point in oral argument: the model of individual bribery that the Roberts 5 justices address is a thing of the distant past, having been replaced by systemic corruption facilitated by the parties. Without "the aggregate limits" Verrilli explained "there is a very real risk that ... the government will be run of, by, and for those" plutocrats who help put the "$1.5 billion together to run a congressional campaign, parties and candidates together."
Roberts quotes Buckley (1976) to support his truncated concern with the "'abuse inherent in a regime of large individual financial contributions' to particular candidates." This sort of retail corruption, recently depicted in the film American Hustle, was the problem in 1976, when political corruption was pursued one politician at a time. But now, several decades after Buckley legalized wholesale corruption, we have parties that are systemically corrupt and operate as shakedown gangs and rent-a-parties. All within the law, corrupt policies are now sold at the party level where actual results can be routinely and efficiently delivered to those who pay large sums toward offsetting the $1.5 billion needed for a governing party to win control. Control of Congress provides policy products to sell, which in turn enables incumbents to raise enough money to blanket the mass media with enough lies and deception to remain in office, notwithstanding the extreme public disdain for Congress as a whole.
The party now acts as an enforcer of this corrupt system by recruiting ambitious incumbents to dial for dollars nearly full-time as the price for powerful committee assignments, legislative influence and "leadership." Snagging $3.6 million each from a few of the 400 plutocrats will give both the fundraising incumbent and the contributors of such amounts more focused clout with the governing party's leaders who control and sell the political agenda. Verrilli explained that "any candidate who sets up a joint fundraising committee, says give to me and give to the rest of my team." Breyer understood that "large contributions from wealthy donors ... will help increase the party's power, as well as the candidate's standing among his colleagues." Party leadership is no longer earned, it is purchased by leadership PACs funded by plutocrats.
Roberts closes his opinion by addressing this reality as merely a "new rationale for the aggregate limits" rather than a new reality that supersedes his convenient but mismatched paradigm of retail corruption borrowed from the distant past. The new reality of systemic corruption shakes the foundations of the whole small-bore edifice of his plutocratic jurisprudence. He claims, without offering any cogent reason, that Verrilli's "new" rationale "does not wash." Roberts does accurately observe that this concern with the reality of wholesale corruption is different than the Court's historical, but now long-outdated, concern with retail corruption addressed in Buckley. He worries that the concern with systemic corruption "dangerously broadens the circumscribed definition of quid pro quo corruption articulated in our prior cases, and targets as corruption the general, broad-based support of a political party." Roberts then states the further truism that effective regulation of such party-based corruption "would dramatically expand government regulation of the political process," as if that were a self-explanatory reason not to undertake the regulation of this " dangerously broaden[ed]" and far more effective and pervasive system of corruption.
There can be no question that it will take a far more comprehensive legislative effort, what has been described as a "big bang," to rid the country of the systemic corruption that defines the New Gilded Age plutocracy created, and faithfully maintained, by the Supreme Court majority. Systemic corruption affects every aspect of government and policy. Movement Republican Peter Schweizer, Extortion: How Politicians Extract Your Money, Buy Votes, and Line Their Own Pockets (2013) 8, 122 writes: "Every aspect of regulatory life is now involved in the extortion racket." Such a system is not easily rooted out.
The piecemeal reforms to which Roberts would limit Congress are ineffectual against systemic corruption, and often counter-productive. The scope necessary for reform of a systemically corrupt government to be effective is certainly no reason, as Roberts implies, to make the problem worse. It is far more reason to turn back over to Congress this now vastly more expansive task of cleaning up what is now an exponentially larger mess than the Court found in 1976, when it first started violating the political question doctrine to tinker with election integrity. It will take the equivalent of the PATRIOT Act and a renamed Homeland Integrity department both re-targeted at the corrupt takeover of the government by plutocrats to restore government to We the People. It is time for these security forces to begin fulfilling their oath to support the Constitution.
The Solicitor General had pointed out that by eliminating the aggregate limits the Court will make it easier for smaller numbers of plutocrats to buy the parties which deliver actual results in the corrupt system that exists. By limiting legitimate concern solely "to particular candidates," without any explanation except that is how the justices have always viewed the problem, Roberts willfully chooses to inhabit a different world than the real world of systemic corruption knowledgeably described by the Solicitor General. Left in his imaginary world without a functioning operational paradigm, Roberts therefore does not acknowledge the contraction of the size of the ruling class that McCutcheon effectuates. He deliberately ignores the reality of systemic corruption which simply does not exist in his frozen 1976 worldview.
Roberts' outdated view of the most important issue facing the country -- an national emergency self-inflicted by the Supreme Court -- is reminiscent of F.D. Roosevelt's attack on the "horse and buggy" theories of judges which he sought to remedy by adding new judges who would "infuse new blood into all our Courts." Roosevelt identified the same problem with the 1937 anti-New Deal Supreme Court that currently infects the Roberts Court: its failure to "presume in favor of the validity [of a law] until its violation of the Constitution is proved beyond all reasonable doubt," quoting this well-accepted doctrine from the separate opinion of George Washington's nephew and heir, Justice Bushrod Washington in Ogden v. Saunders (1827). As early as Hamilton (Federalist, No. 78) it was understood that only in the event of "irreconcilable variance between the two ... the Constitution ought to be preferred to the statute." By violating this venerable rule, Roosevelt explained, "the Court has been acting not as a judicial body, but as a policy-making body." The judicial supremacist Roberts 5 has recreated the same constitutional crisis as the one Roosevelt described and mastered in 1937 in order to sustain his New Deal program.
Breyer invokes this illegitimacy of the Court's unsupported speculations that the aggregate limits do not serve a legitimate governmental interest in controlling political corruption. He notes, in a judicial euphemism for saying Roberts either does not know what he is talking about or is deliberately dissembling, that "this Court's expertise does not lie in marshaling facts in the primary instance." Not only did Roberts fail to "prove beyond all reasonable doubt" that aggregate limits violate the Constitution, he does not even bother following the necessary judicial processes by which such proof could be legitimately assessed by the judicial branch. Breyer's substantially less than "blistering dissent" stops short of drawing the necessary conclusion that the Roberts 5 are therefore acting beyond their constitutional judicial powers in McCutcheon. According to Madison (Federalist 47): “The accumulation of all powers legislative, executive and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.”
The lower Court decision was deliberately constructed by movement Republican judges to avoid any fact-finding at all by dismissing the case solely on legal grounds. Otherwise, Mr. McCutcheon might have been subject to cross-examination on precisely how buying more politicians would provide him more "free speech" rather than more profits. He may have been asked about policies he purchased in the past, and profits made. Previous test cases like this one often involved newly formed organizations in order to avoid such questions and keep the facts on an aspirational and theoretical plane remote from the grit of political corruption.
Breyer points out that in every previous case involving such a fact-free record the Court remanded to the District Court for judicial fact finding to adduce evidence that would justify rejecting Congress's politically more legitimate findings to which deference is traditionally owed. In this case five justices were content to simply invent whatever facts they needed to spin their unsupported legal arguments. These five judicial supremacist justices made no pretense of making legitimate judicial findings of fact that should be worthy of any deference by the elected branches.
Instead of the "umpire" with "no agenda" that he disingenuously promised the Senate when his nomination by Bush II was under consideration, C.J. Roberts has delivered just the opposite: an historically extreme judicial supremacist legislator in robes. When testifying, Roberts clarified: "Umpires don't make the rules, they apply them." But a former schoolmate of Roberts, now a doctor, suggests Roberts' precocious facility with inventing new rules: "He could take an argument that was borderline absurd and argue for it so well that you were almost at the point of having to accept his stance even though it was intuitively obvious that it was absurd." Such plausible-sounding absurdity is precisely what Roberts has delivered when trumping the majority will by reversing the Voting Rights Act in Shelby County (2013), overturning effective public funding of elections enacted by popular referendum in Arizona Free Enterprise Club (2011), and now facilitating systemic political corruption in McCutcheon (2014). As Ari Berman points out in the Nation, vote suppression, as in Shelby County, and buying elections, "are not unrelated issues" for purposes of building plutocracy.
Professor Gene Nichol describes Roberts' "grotesque hypocrisy": "Never has there been so wide a chasm between the jurist calculatingly advertised and the one subsequently, knowingly, delivered." Roberts was appointed by the very President whose election he helped to steal in 2000. See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2008) 175. He dissembled his way onto the Court by pretending to be an "umpire" rather than a judicial supremacist. And he has now committed serial acts of "treason to the constitution" by usurping legislative power in the service of plutocracy. See Cohens v Virginia , 19 U.S. at 387 (1821) (C.J. Marshall). Though he has never won an election, this illegitimate stealth justice appointed by an unelected president presumes to legislate for the country in violation of constitutional separation of powers. How far must Roberts' treason to the Constitution go before it will be punished?
Roberts misses the irony in his statement that "those who govern should be the last people to help decide who should govern." He aims that platitude at Congress, under the pretense that Congress actually still governs. But Congress does not govern under the Supreme Court's illegitimate judicial supremacy. The Court governs like a colonial privy council, deleting any laws that displease their plutocratic lords. Congress is paid by plutocrats to leave the Court in charge of corrupting its elections. Polls consistently show that Americans think there is no legitimate Congress, routinelyranking its consent from the governed below that of King George III. So it is the Roberts 5 who "help decide who should govern," but should be the last people to do so.
Notwithstanding the renewed calls for a futile and even counterproductiveconstitutional amendment -- such as the ill-considered proposal of Bernie Sanders -- that are predictably re-issued in response to cases like McCutcheon, the actual opinions in the case again demonstrate that the problem is not with the Constitution. Roberts has great difficulty tying his decision to any constitutional text or an "originalist" interpretation of it. The Court's illegitimate exercise of judicial supremacy has proven once again that, as Article I, Sections 4 & 5 of the Constitution provide, the Court should have no role whatsoever in inventing new election law contrary to that which the people themselves support. But these ritual calls blaming the Constitution do divert attention away from the abundant proof that the problem lies, not with the Constitution, but squarely with a Supreme Court majority that flagrantly violates the Constitution's separation of powers.
The lack of effective public response -- partly due to those diversionary non-strategic calls by politicians and their professional activist supporters that reform "requires a constitutional amendment" -- has only encouraged the Court to continue its project. The Roberts 5 both understand and practice the lesson that F.D. Roosevelt taught in his successful battle with a similar judicial supremacist Court. He denounced those who pursued the "strategy to suggest the time consuming process of amendment in order to kill off by delay the legislation demanded" by the people. FDR explained to the country:
"Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is."
By creating a systemically corrupt government in the firm control of plutocrats, the Court has made it unlikely that a future majority of justices will be other than the kind of plutocrats that now control the Court.
Because the public response has been so ineffective, misguided and counterproductive in ignoring the lesson of FDR and all previous leaders who have confronted this recurring problem in American history, the Court can be fully expected to move directly to its next campaign finance target. Roberts identified that target for those who understand his legalese: "Notwithstanding the robust debate, we see no need in this case to revisit Buckley's distinction between contributions and expenditures." Because Buckley and its progeny left expenditures of party and candidate funds completely unregulated, that pretty much translates as inviting the next case to seek elimination of the "base" limits on contributions that were left standing in McCutcheon. The Court would then likely go on to strike the final blow to campaign finance by overturning the remaining restrictions on "soft money" contributions to parties. Just because they can, not because it will really make much difference to the grip of plutocrats on the former republic.
Justice Thomas spelled out where this all eventually leads in his concurrence. He argues for reversing Buckley and its principle of prophylactic limits on campaign contributions altogether. But first, the next case on the Court's docket raising campaign finance issues could permit corporate donations directly to candidates, which is an issue the Courtdeclined to take up in U.S. v. Danielczyk just after it chose to hearMcCutcheon instead, as the more logical next step in its step-by-step demolition of democracy. This state case now pending decision on certiorari would raise the possibility for revisiting the still-viable 11thAmendment strategy previously muffed by both the Montana attorney general and professional activists.
Professor Richard Hasen worries that "many more campaign laws could fall in the near future." He accurately discerns that Roberts' McCutcheon"opinion promises more bad things to come for money in politics, and soon." But what happens in the future is of only formal concern -- the damage has long since been done. As Yale's Sam Kleiner more relevantly observed in the New Republic: "The [McCutcheon] decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system."
And the United States will no longer have a working democracy until the People unite behind an effective strategy to get the Roberts 5 out of the sordid business of corrupting state and federal elections. The only realistic way to do this is by forcing Congress to completely strip the Court's jurisdiction over federal elections -- with real teeth enforcing specific Article III "good Behaviour" standards against any Roberts 5 resistance -- and thereby revive the numerous state and federal laws the Court has illegitimately nullified in bold violation of the separation of powers.
Meanwhile the states need to enact new creative legislation not yet rejected by the Roberts 5 -- such as barring or taxing out of state contributions, or establishing alternative no-buy-zone primaries to access one general election ballot line. Such creative state initiatives must all be vigorously defended by the forceful and unified assertion of the 11th Amendment sovereign immunity defense from Supreme Court interference in the sovereign integrity of state government.
An earlier version of this article was published by Counterpunch.