Thursday, April 03, 2014

Welcome to the Oligarchy - The Roberts Court Tears Down the Facade: Wealth Controls Politics


Anyone who has been paying attention has long known that money and power go hand-in-hand in American politics. The wealthy 1% control who gets elected to the highest offices and who does not. Never before has this been more blatantly obvious than in the Roberts Court decision on the McCutcheon v. FEC case.

First there was Citizens United, which allows corporations the same rights as citizens in making donations to political campaigns, and now we have the Supreme Court of the United States of America deciding, in opposition to nearly 40 years of existing case law, that there should be no real constraints on campaign contributions for individuals. So corporations have the same rights as citizens in campaign contributions, and now wealthy citizens are permitted to make a $3.2 million aggregate contribution in each election cycle.

So much for democracy. Welcome to the Oligarchy.

From Bill Moyers' website, here are some excerpts of the minority dissent, penned by Justice Stephen Breyer. [Below that, there is an excellent list of links from the SCOTUS blog on this case, all of which are written by legal scholars.]
The court’s four-member minority issued a blistering dissent, written by Justice Stephen Breyer. He charged that the majority’s “conclusion rests upon its own, not a record-based, view of the facts.”
Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.
Taken together with Citizens United, Breyer writes that 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.”

He goes on to dissect the claims on which the court’s ruling rest. He first takes issue with the idea that the government only has an interest in preventing a direct exchange of cash for votes.

In the plurality’s view, a federal statute could not prevent an individual from writing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.”

This critically important definition of “corruption” is inconsistent with the Court’s prior case … and it misunderstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation.

In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.

Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives….

The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.

What has this to do with corruption? It has everything to do with corruption. 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….

The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.
Breyer then wonders how the conservatives could square McCutcheon’s narrow definition of “corruption” with its conclusion, in the 2003 case McConnell v. FEC, that money — and the access it purchases — has a pernicious influence on the political process.
The Court in McConnell upheld these new contribution restrictions under the First Amendment for the very reason the plurality today discounts or ignores. Namely, the Court found they thwarted a significant risk of corruption—understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.

In reaching its conclusion in McConnell, the Court relied upon a vast record compiled in the District Court. That record consisted of over 100,000 pages of material and included testimony from more than 200 witnesses. What it showed, in detail, was the web of relationships and understandings among parties, candidates, and large donors that underlies privileged access and influence. The District Judges in McConnell made clear that the record did “not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money.”

Indeed, no one had identified a “single discrete instance of quid pro quo corruption” due to soft money. But what the record did demonstrate was that enormous soft money contributions, ranging between $1 million and $5 million among the largest donors, enabled wealthy contributors to gain disproportionate “access to federal lawmakers” and the ability to “influenc[e] legislation.”

“We specifically rejected efforts to define ‘corruption’ in ways similar to those the plurality today accepts,” writes Breyer.
He then takes on the conservatives’ second rationale: that the problem the aggregate limit was supposed to address — huge donors funneling money indirectly to a candidate in order to get around the limit on contributions to a single campaign — isn’t an issue today.
The plurality is wrong…. In the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of corruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumvention will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers.
He offers three concrete examples of how a wealthy donor might be able to get millions of dollars to a single candidate without running afoul of the law under McCutcheon.

But perhaps the dissent’s most withering criticism of the ruling is that, as in Citizens United, it was decided according to the majority’s beliefs, rather than the factual record.

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objec­tive. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did….

If we are to overturn an act of Congress here, we should do so on the basis of a similar record….

Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and applying significant discretion and judgment. To what ex­tent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

… For another thing, a comparison of the plurality’s opinion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental interest—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy….

The justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. The threat to that integrity posed by the risk of special access and influence remains real. Part III, supra. Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumvention. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits.

The plurality reaches the opposite conclusion. The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and 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.
For even more coverage of this decision, and from legal scholars, here is a list of links to posts on the SCOTUS blog related to this case.

McCutcheon v. Federal Election Commission


Docket No. Op. Below Argument Opinion Vote Author Term
12-536 D.D.C Oct 8, 2013
Tr.Aud.
Apr 2, 2014 5-4 Roberts OT 2013
Issue: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

SCOTUSblog Coverage

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