Timing is everything, so the Supreme Court doesn’t announce controversial definitive rulings on April Fools’ Day. They wait a day, and then they rule on a divisive and contentious matter in a way everyone knew they would but hoped they wouldn’t. Americans are still trying to get used to the idea that corporations are “persons” in a legal sense, with free-speech rights that cannot be abridged, and that includes political speech. In Citizens United the Supreme Court ruled that independent expenditures by corporations, to get people they wanted elected to be elected, should not and cannot be limited in any way by any pesky and wrong-headed campaign laws, on free-speech grounds. The government should never be in the business of shutting down political discourse, and corporate spending was no more than basic political discourse.
This was a ruling the Republicans, the party that prides itself on representing the interests of big business, the job creators, loved. They weren’t pleased that this ruling also applied to labor unions – they could spend limitless amounts of money now too – but Republicans had spent four of five decades convincing Americans that labor unions had ruined America, by forcing American businesses to cave to the unreasonable demands of rather worthless greedy workers. They hammered that message home. It’s no wonder American businesses had become uncompetitive – they had to pay exorbitant wages, and provide absurd benefits, and guarantee the total safety, of a bunch of whiners. But it all worked out in the end. Republicans had convinced America of all that and labor unions have all but disappeared, so Citizens United was a big “win” for Republicans – the unlimited spending of labor unions might now add up to thirty-seven dollars and change.
Citizens United was decided in 2009, and Americans are slowly accepting the premise that corporations are people too, just people with far more money and influence than any of us will ever have as individuals, or in silly little groups or pretentious associations with fancy-sounding names. That’s just the way it is. The Supreme Court said so, so it must be so. If you want to have a say in government, start your own multinational corporation, or shut the fuck up.
Okay, we get it, but it’s a little harder to accept the underlying premise of the ruling, that money is free speech, and implicitly, the way things are now structured, only money guarantees free speech, as nothing else really does. That’s not what we learned in school about how democracy is supposed to work, but then lots of stuff we learned in eighth grade wasn’t quite what it seemed at the time. Everyone has to grow up.
Later this year, a summer begins, we will also learn that corporations are “persons” in another way – they have religious rights too, and have the right to refuse to comply with any law that they claim forces them to do what their religion tells them never ever to do. It’s a matter of the free exercise of religion, which the Constitution implicitly guarantees. The immediate issue is complying with the new government standards for employee health plans, which now include family planning services and making most forms contraception available to women employees. The corporations in question will not be party to providing slut-pills for sluts, and that’s that. How can the government force them to sin like that?
The outcome is obvious. This Supreme Court – six Catholics and three Jews – is weighted in favor of anything that helps end the scourge of birth control in all its forms. They will somehow find a way to rule against the government here, and create a new right for corporate “persons” – the right to refuse to comply with any law that violates their right to the free exercise of their religion. Add a new basic assumption. Corporations will now have sincere religious beliefs too. They’re people too, after all.
In all of this, individuals, with individual resources, get the short end of the stick. Women who work for certain corporations, who are assured, by law, of a certain level of healthcare, will be out of luck. They won’t get that. Some persons are more important than others. Corporations, with the big money, are now the only “persons” in America who really have a say in things, and they say it with their money. This Supreme Court has been ruling that this is so, over and over again – protecting the new “rights” of corporations and those with scads of money they want to use to get the kind of government they want, for their own ends. Everyone wants that. This Supreme Court simply wants to make sure corporations and the rich aren’t unfairly shut out of the process.
That’s why no one was surprised by the post-April-Fools ruling from the Supreme Court, as it was just another incremental step in the process:
The Supreme Court on Wednesday continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.
The ruling – issued near the start of a campaign season – will very likely increase the role money plays in American politics.
The 5-to-4 decision, with the court’s more conservative members in the majority, echoed Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.
Wednesday’s decision seemed to alter campaign finance law in subtle but important ways, notably by limiting how the government can justify laws said to restrict the exercise of First Amendment rights in the form of campaign contributions.
The matter was tricky:
The court’s 88-page decision reflected sharply different visions of the meaning of the First Amendment and the role of government in regulating elections, with the majority deeply skeptical of government efforts to control participation in politics, and the minority saying that such oversight was needed to ensure a functioning democracy.
Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”
In a dissent from the bench, Justice Stephen G. Breyer called the majority opinion a disturbing development that raised the overall contribution ceiling to “the number infinity.”
“If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.”
In short, all political participation should be encouraged, or, alternatively, there ought to be some rules so the folks with money don’t get all the say in everything. The latter position was abandoned, at least partially:
Wednesday’s decision did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.
The dissenters weren’t satisfied with that:
In his written opinion, Justice Breyer said Wednesday’s decision would allow “a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The majority was satisfied with that:
The chief justice said that while the $2,600 base limits were also intact, the overall caps placed an unacceptable burden on “an individual’s right to participate in the public debate through political expression and political association.”
“The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse,” he wrote.
Leveling the playing field is not an acceptable interest for the government, Chief Justice Roberts said. Nor is “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties,” he added, quoting Citizens United.
The only acceptable justification, he said, was rooting out “quid pro quo corruption” or the appearance of it.
As long as there’s no evidence of a single direct payment to a politician for passing a certain specific law or set of laws, there is no corruption – otherwise it’s just the normal give and take of politics. The law shouldn’t restrict that, and anyway, this ruling, which puts wide blasts of massive political spending right out there in the open for everyone to see, could be good for our two political parties:
“The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure,” Chief Justice Roberts wrote. “Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech.” He was joined by Justices Alito, Kennedy and Scalia. Justice Thomas wrote a concurring opinion.
Huh? You could also look at it this way:
Citizens United did nothing to disturb the other main form of campaign finance regulation: caps on direct contributions to candidates and political parties. Wednesday’s decision in McCutcheon v. Federal Election Commission, No. 12-536, addressed that second kind of regulation.
It did not disturb familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.
Kevin Drum wonders what that leads to:
There are still some limits left. Direct contributions from individuals to specific candidates are still capped, and direct contributions to candidates from corporations are still banned.
The effect of this decision is unclear. Will billionaires start giving enormous sums of soft money to political parties? That would presumably require parties to set up lots of different committees that are putatively for different purposes, which in turn would probably give rise to yet more legal challenges. But if the past is any indication, the bright boys and girls who run these things will figure out a way.
I suppose it might even be a good thing, if you believe that parties have gotten too weak compared to billionaire donors these days. This could give them a way of rebuilding their influence and providing more central control over messaging and candidate selection. But I doubt that. The cringe-inducing spectacle of Republicans trekking to Las Vegas this weekend to kiss Sheldon Adelson’s ring in hopes of becoming his fair-haired child and sole recipient of his millions, shows that the horse is truly out of the barn on the role of the super-rich in political campaigns. It’s possible that McCutcheon will strengthen party machinery and provide a slight counterweight, but more likely it will simply give billionaires even more control over the electoral process.
Drum is not hopeful about those billionaires:
I guess the best we can hope for is that they continue to be as stupid in their political spending as they’ve been so far. Unfortunately, as the Koch brothers are showing, my sense is that they’re finally getting a little better and a little more disciplined about this stuff. Billionaire politics is here to stay.
This is not a good turn of events for popular democracy.
Or maybe popular democracy is for eight-grade Civics class. Billionaire politics really is here to stay, and no one is surprised anymore.
Slate’s Dahlia Lithwick offers another view:
Without even acknowledging that it is doing so, the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle. But the opinion also offers up such a supremely cramped notion of “corruption” as to rely almost exclusively on the quid pro quo bribery favored in the Gilded Age, wherein robber barons casually left fat sacks of cash around in exchange for political influence. Roberts has not been historically blind to the effects of public outrage on the legitimacy of the court; indeed, some have argued that this was the reason for his vote in the health care cases. So it’s interesting to read his opinion today as a meditation on electoral corruption, or what electoral corruption might look like to the rest of us. What does Roberts think Americans are worried about in the current political climate? Well, it seems we’re worried about how to most effectively spend our billions.
Roberts honestly seems to inhabit a world in which what really worries the average Joe about the current electoral regime is not that his voice is drowned out by that of Sheldon Adelson, but that Adelson might be forced to spend his millions “at lower levels than others because he wants to support more candidates” or that he is too busy making billions of dollars at work to volunteer for a campaign, or that he has Jay Z and Beyoncé on standby to perform at a house party in the event that his billions are tied up elsewhere this week.
Then she quotes Roberts:
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 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 since the chief can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption – or appearance of corruption – afoot.
She’s more impressed with Justice Stephen Breyer’s dissent:
Breyer is quick to call out the chief justice’s narrow reading of quid pro quo corruption, noting that Roberts specifically excludes any efforts to “garner ‘influence over or access to’ elected officials or political parties”… Breyer tersely writes: “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 doesn’t protect speech for its own sake, he continues: “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.”
And why does this collective speech matter? Why are we talking about corruption? Because, writes Breyer: “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.”
Someone had to say it:
And yes, there is a silent “duh” in there. Breyer may seem hopelessly naïve or idealistic next to Roberts, but what he writes in dissent today seems to reflect fairly accurately what most Americans view as the appearance of corruption when the 1 percent of wealthiest political contributors is allowed to give unlimited funds to political candidates and party committees: “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 notes. “Democracy, the Court has often said, cannot work unless ‘the people have faith in those who govern.'”
Lithwick sees what’s going on here:
That assessment is both a fairly accurate description of the status quo, when it comes to money in politics, and a predictor of how the public will likely react to the news that one of the last remaining efforts to curb the influence of big money in politics was just vaporized by the Roberts court. Breyer goes on to detail in his dissent how aggregate contributions can be used to work around the democratic process. (Actually, he pretty much writes the handbook.) But he almost needn’t bother. He may be childishly wedded to the old-fashioned notion that pouring ever more billionaire dollars into electoral politics is nobody’s idea of freedom, good government, or equality. But I believe him. I suspect most Americans will as well.
That means she just doesn’t understand Roberts:
Either he thinks Americans really don’t see any connection. Or he doesn’t care what we see or believe. Or he really doesn’t think that the candidates dialing for big dollars constitute corruption.
None of these alternatives is pretty. But I worry that the court has located itself so outside the orbit of the 99 percent that it simply doesn’t matter to the five conservatives in the majority that the American public knows perfectly well what bought-government looks like and that Breyer is describing a level of cynicism that has already arrived.
Worse still, I worry that it matters very little to them that we will stop voting, donating, participating, or caring about elections at all in light of this decision to silence us yet further. In which case McCutcheon is a self-fulfilling prophecy in exactly the way Breyer predicts: Money doesn’t just talk. It also eventually forces the public to understand that we don’t much matter. It silences. It already has.
That’s why no one was surprised, and Steve M at No More Mister Nice Blog senses a master plan from the right – “Minimizing the impact of universal suffrage is vitally necessary in order to prevent the have-nots from draining the life out of the nation.”
He then cites the Nation’s Ari Berman on the obvious pattern here:
The Supreme Court’s Ideology: More Money, Less Voting
In the past four years, under the leadership of Chief Justice John Roberts, the Supreme Court has made it far easier to buy an election and far harder to vote in one.
First came the Court’s 2010 decision in Citizens United v. FEC, which brought us the Super PAC era.
Then came the Court’s 2013 decision in Shelby County v. Holder, which gutted the centerpiece of the Voting Rights Act.
Now we have McCutcheon v. FEC, where the Court, in yet another controversial 5-4 opinion written by Roberts, struck down the limits on how much an individual can contribute to candidates, parties and political action committees.
And so it goes, and Steve M adds this:
Elected Republicans limit the franchise as well, of course, via voter ID laws and voter-roll purges. This is what you do if you think democracy, left unchecked, will ultimately kill America. And that is what the right believes.
Well, at least the New York time’s Gail Collins can list potential upsides of opening the door to bigger campaign contributions from rich people:
1) Perhaps Justice Roberts was trying to pile up some right-wing cred so that he can swing left on the Obamacare contraception rule. Okay, I’m totally making that one up.
2) The federal government will no longer be “eliminating a person’s right to choose.” This is the spin from Lincoln Brown, a talk radio host who interviewed Shaun McCutcheon, the plaintiff in the suit that the Supreme Court just decided. This would refer to a right to give several million dollars directly to people running for federal office, not a woman’s right to control her reproductive system. But maybe there could be a trend.
3) More talk about oligarchs! Watching events in Russia and Ukraine, you can’t help noticing all the stupendously rich oligarchs with their fingers in every political development. It’s a useful word, connoting both awesome power and a group you don’t really want to have around.
Yep, increase your vocabulary:
In the former Soviet Union, the money elite generally get their power from the politicians. Here, it seems to be the other way around. But the next time casino zillionaire Sheldon Adelson invites the Republican presidential hopefuls to go to Las Vegas and bow before his throne, feel free to say they were just off honoring an oligarch. Apparently, the founding fathers would have wanted it that way.
The only thing to do now is to joke about this. No one was surprised. All this was decided long ago, and only confirmed and made law by this court starting in 2009 with the Citizen United ruling. The next step, after ruling the government cannot assault the deep and sincere religious faith of corporations, will be removing those minor remaining individual limits on spending on politicians, spending that might get you the goodies that you want, removing those in order to be scrupulously fair to the rich. They own the place, after all.