Money, Politics and the Roberts Court
On Monday, February 25, 2013 the Supreme Court denied certiorari in U.S. v. Danielczyk, 791 F. Supp. 2d 513 (E.D. Va. 2011), rev’d 683 F.3d 611 (4th Circuit 2012) which sought to bring down the whole house of what is left of campaign finance regulation. The appellate court’s decision in Danielczyk reconfirmed that a corporation cannot make direct contributions to a candidate, thereby upholding the distinction made in Buckley v. Valeo (1976) between candidate and party contributions, which Buckley held can both be regulated, and the independent expenditures which Citizens United emphasized could not be restricted, whether received from corporations or any other source.
On February 19, the Court agreed to review a decision upholding federal law restricting aggregate electioneering contributions. This decision was made by a three-judge federal district court panel convened specially for constitutional challenges under BCRA (McCain-Feingold). With McCutcheon v. Federal Election Commission the justices placed on the Court’s agenda its seventh campaign finance case in seven years. Before discussing this case, which has been extensively treated in various forums, the context for this 2013 installment of the Court’s ongoing dismantling of campaign finance laws can aid in understanding its significance.
The Roberts 5
The current majority of the Supreme Court formed after George W. Bush rewarded corporate lawyer John Roberts with the Chief Justiceship – after appointing him to a two years stint on the D.C. Circuit — in apparent exchange for Roberts’ masterminding the litigation strategy which led to Bush’s appointment to the presidency in Bush v Gore. When Bush then elevated the known far right-wing Samuel Alito from the Third Circuit Court of Appeals to replace centrist Justice Sandra Day O’Connor a majority of hard right conservatives gained control of the Court for the first time since the New Deal.
Although the 42 Senators who voted against Alito would have been sufficient to block his appointment by filibuster, the Democrats, opted not to do so. The 17 Senators who voted against Alito, but also voted against a filibuster of his appointment, merely postured for public consumption in the first vote, since by their second vote they indicated that they were actually opposed neither to Alito, nor to the possibly permanent transfer of the third branch of government to movement conservatives which his appointment represented. This belies the notion that Democrats preserved the filibuster tool in 2013, for Republican use in blocking legislation, because they might want to use it for something even more important when back in the minority themselves. There could have been no more important use of the filibuster by a Democratic minority in recent decades than to block the appointment of only the third Supreme Court nominee ever to be opposed by the ACLU. After Alito topped up the new Roberts 5 majority faction on the Supreme Court, its campaign finance decisions swerved immediately toward deregulating money in politics. Combined with Congress’ supine response to them, these decisions have jeopardized democratic governance by making money sovereign while marginalizing the consent that the governed give their representatives, who among other things have approved justices increasingly hostile since 1976 to any legislative restraint on the corrupt overthrow of democracy by money in politics.
The Plutocratic Playbook
Before 2010’s notorious Citizens United stirred up public attention about the Roberts 5 plutocracy project, the Roberts 5 had decided three cases that fatally wounded campaign finance reform, by:
1) preventing states from setting reasonable limits on election spending and contributions that might have allowed, say, the upper middle class to compete financially in funding candidates, Randall v. Sorrel (2006);
2) authorizing corporations unlimited capacity to buy elections under the guise of sponsoring “issue ads,” FEC v. Wisconsin Right to Life, Inc. (2007); and
3) making it easier for plutocrats like Mayor Bloomberg to use their personal fortunes to buy their own elections, Davis v. FEC (2008), while also implicitly undercutting effective public financing of elections.
Immediately after the 2008 presidential election threatened a new direction in appointments to the Court, the Roberts 5 voted to hear Citizens United v. Federal Election Commission (2010), which would become the Court’s centerpiece campaign finance ruling. The narrow question presented in Citizens United was expanded in scope by the Court in 2009 to accommodate the broad ruling the Roberts 5 sought to make in time to influence the 2010 elections. The decision allowed unlimited electioneering expenditures, by for-profit corporations or anyone else, if considered “independent” of the candidate. This case won greater attention from the public, though elections were already awash in money before the Court allowed corporations this fuller access to the money game.
Certain doctrinal developments signaled in Citizens United, such as 1) its counterfactual decree unsupported by any judicial factfinding process that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,“ 2) its apparent restriction of legislative power over election integrity solely to prosecutions for bribery, and 3) the extreme violation of the separation of judicial from legislative powers that both rulings involved, were more important than the decision itself.
The next year, without much fanfare, the Court predictably followed the implications of Davis to gut Arizona’s model public funding initiative by preventing the public from matching plutocrats dollar for dollar. Arizona Free Market Club (2011) thereby allows a plutocrat-supported candidate to outspend the publicly funded candidate. Spending about 2-300% of what a challenger spends buys a more than 90% chance of victory.
In 2012, again without much public notice, the court decided American Tradition Partnership v. Bullock, 567 U. S. _ (2012) in order to suppress the prairie rebellion threatened by the Montana Supreme Court’s refusal to apply Citizens United for corrupting state elections. This potentially monumental case that would have allowed states to opt out of the system of corruption mandated by the Court for federal elections was egregiously mishandled by Montana’s then Attorney General Steve Bullock. Bullock refused to raise Montana’ s constitutional state’s rights defenses, without any credible explanation for sacrificing its most effective argument. The Court therefore reached the obvious conclusion, in the absence of a distinctive state issue, that there was no difference between the state law and the similar federal law overthrown in Citizens United.
This incompetent handling of the state’s defense allowed the Court to make a molehill out of the case by summarily reversing without even according Montana the dignity of a hearing. But Montana’s unasserted right not to be hauled into any federal tribunal to defend a law that goes to the heart of its own sovereignty – which the Montana Supreme Court had clearly shown that Montana’s invalidated 1912 election integrity law did in fact protect – had the potential to place a Montana Rockies sized obstacle in the way of the Roberts 5’s further corruption of state elections.
The 2013 Agenda
These six cases leave very few obstacles for plutocrats who profit from buying all levels of government. The only restrictions to money in politics that now remain concern direct contributions to politicians and parties. In McCutcheon an individual contributor, and in Danielczyk a corporate contributor, challenged these restrictions.
There is a temptation, not resisted by even the better of the analyses of the McCutcheon case, to say that in deciding McCutcheon the Court “could open the door to even more money in politics than it did in the disastrous … Citizens United v FEC.” But such hyperbole is a bit overstated. To any close observer, the door was already wide open even before Citizens United. For example, one anti-democracy scholar approvingly wrote, based on the above-listed little-noted Roberts 5 decisions prior to Citizens United: “the game of reform … is over.” Richard Esenberg, The Lonely Death of Public Campaign Financing, 33 Harvard Journal of Law & Public Policy 283, 289 (2010). A pro-democracy student law review article similarly reflected that “the Court’s intention to liberalize expenditure laws should have been abundantly clear by 2008.” Note, Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance, 124 Harv. L. Rev. 1528, 1539 (2011).
So let’s not exaggerate what is at stake for most voters in the 2013 edition of the Roberts 5 annual “whack an election integrity law” series. The McCutcheon case will almost certainly be the seventh case in as many years in which such a law is struck down. The Supreme Court will thereby provide a small number of political investors an additional tool to more efficiently assert influence over public policy than they already do by using Super Pacs, and other means. This will reduce from about .02% of citizens to maybe about 400 plutocrats the numbers necessary to directly buy the federal government, rather than doing so indirectly by financing purportedly “independent” electioneering expenditures and issue ads.
Overturning the FECA limits on total aggregate contributions to party committees and candidates requested in McCutcheon would increase from $123,000 to over $3.6 million the amount a single plutocrat can contribute in the current two year federal election cycle. Funding Super Pacs is not as direct, and in 2012 was not as effective partly because candidates get better rates for broadcast ads, and partly because Republican profligacy induced by their sheer surfeit of resources saw, for example, Romney’s top consultants paid $134 million while Obama ‘s were paid $6 million. Though Super Pacs did give independent expenditures a bad rap in 2012, it has often been observed that where 85% of all political money goes to the broadcast media it hardly matters who pays for it. The FEC has adduced extensive evidence about the corrupting influence of independent expenditures. In the case of negative advertising it can be more effective to leave the candidate’s fingerprints off the ads which offend while they also persuade. So the additional importance to plutocrats of having the flexibility to contribute directly to candidates and parties should not be exaggerated, even though the optics may embarrass.
Harvard Prof. Noah Feldman, writing for Bloomberg, thought the effect of McCutcheon would be to give mega-millionaires the chance to compete with billionaires who now fund Super Pacs. Actually the reverse is more true. Billionaires who do not want to go through the likes of Karl Rove to have to buy an election through notionally independent expenditures, will be able, after the McCutcheon decision, to more cost effectively buy a majority of Congress directly on issues that concern their own financial interests, just as plutocrats did in the first Gilded Age.
In some future history about the end of the republic and the rise of the neo-feudal and imperial aristocracy that is now replacing it, the McCutcheon decision will mark the transition point when, as in feudal times, the royalty would gain supremacy over the lesser nobility. It cannot be said how this actually affects the rest of us, who have been for some time mere spectators at the funeral of democracy. By 2008, at the very latest, the 99% were already completely dealt out of the money game which, beginning in 1976 caused the decline both of democracy and of that decline’s most reliable indicator – growing economic inequality. Since 2008 it appears that the top 1% have been taking all the income gains plus .4% of what the 99% used to have. These inequality statistics suggest that it is no longer the 90% but now the 99% who are disenfranchised. The McCutcheon case, and future such cases cleaning up what remains of legislative authority to safeguard election integrity, will now merely be about distributing the spoils between mega-milionaires and billionaires, like larger and smaller plutocratic wolves jostling at the carcass of the former U.S. republic.
The average incumbent representative raises $1,732,000 for a 91.2% chance of re-election while a Senate incumbent raises $7.02 million for a 95.2% chance. So a majority of incumbent representatives can be bought for roughly $400 million per Session, and 51 incumbent Senators for roughly $375 million for six years’ service, or $125 million per Session. For about the same total you can buy half a president. If there are, say, 100 key issues per year on which influence peddling of public policy can deliver the average return on investment (which can be estimated to be around 40,000%), then the principle players in this business model would prefer retailing these policies biennially to 150 or so individual plutocrats at $3.6 million a pop than the current messiness involved in raising money and making non-indictable sales of public policy to 30 fold of the lesser nobility, who also need to coordinate their potentially conflicting demands among themselves. A good example of this phenomenon is the too big to fail (TBTF) implicit bailout guarantee subsidy that allows Wall Street to out-compete mainstreet banks. The smaller banks may have proven better bankers than the TBTF banks, but simply lack sufficient clout to play the corruption game as effectively.
Though there will always be smaller players for policies involving smaller stakes and returns, this requires expensive overhead for PACs and political parties, lobbyists and shakedowns, when the transaction could, at least metaphorically, be made by the major players more comfortably and discreetly in an exclusive large room.
Indeed in the near future, after a very few additional adjustments in election integrity law by the Supreme Court, all in the name of free speech, this core “royalist” faction of a few hundred billionaires might even be whittled down to a plutocratic junta of a handful of multi-billionaires who could fit around a secluded conference table. But there is really no factor on the horizon standing in the way of imagining, like Sheldon Adelson apparently does, ultimately, a single financial Caesar that arranges the “single payer” system for buying government that Americans originally wanted for delivering their health care but are unlikely to get.
The potential returns on owning the government of the United States are so great, why should not competition for maximizing those returns result in a single winner who can pay the full going price to take all, while efficiently subcontracting the exploitation of the various policies components, much like feudal kings subcontracted to the nobility the control of feudal estates – the politically generated financial asset of that era? As further decisions of the Court unfold, this is now the most relevant question. For the Roberts 5’s next decision will likely address the question that the Court left open by denying certiorari in Danielczyk.
This question could well return as early as the Court’s decision in McCutcheon, due to the way the parties and the Court below designed the case. Now that the Roberts 5 has mostly completed the doctrinal scaffolding that assures the government can be freely bought, the Court may argue, in effect, that it really makes little difference anymore how the elections are bought, as a rationale for denying constitutional significance to Buckley’s seriously flawed distinction between indirect contributions for candidates (“electioneering expenditures”) and direct contributions. Of course overruling of Buckley would be couched in terms of freeing “speech” (i.e. money), so voters may hear what plutocrats have to say without restriction, except for those so inept as to be caught and prosecuted for quid pro quo bribery. This requires ignoring, as the Roberts 5 do so well, that money in politics necessarily makes ordinary voting useless for influencing policy that is determined solely by money. Eliminating all regulation of money in politics could be labeled the “royalist” option since it inherently restricts the corruption game to those who invest the very largest sums. That was the ruling sought in Danielczyk, and which could still be delivered in McCutcheon.
Justices Thomas, Kennedy and Scalia long ago supported this position, as pointed out by the Danielczyk Petition For a Writ of Certiorari, 30-34. It is difficult to imagine that Justice Alito would not agree. Indeed either he or Justice Roberts, or both, must have agreed to eliminating regulation of aggregate contributions, since at least 4 votes were necessary for the certiorari decision to hear McCutcheon. The only purpose for four judges to accept the case would be to reverse the decision below. There is no conflict between the lower court’s decision and any circuit decision, while the factual record is very poorly developed. So no other reason presents itself why the Court would choose to hear McCutcheon than to begin, if not to complete, its demolition of limits on contributions in a case well-designed for that purpose.
The Court normally reverses about 2/3ds of the cases it takes. But since the Robert’s Court’s special mission in American history seems to be to corrupt its elections beyond redemption, thereby heralding in the second Gilded Age, the probability would have to be assessed as approaching certainty, in this particular case, that the Court will either abandon the aggregate limits on contributions or go the whole way to the royalist option of invalidating any limits on contributions, just as it has on expenditures.
Prof. Feldman opined that the Court is “[f]aced with this dilemma of following principle and being condemned as political, or acting out of political caution and being ridiculed as hypocrites.” But if McCutcheon is to be described as facing the Court with a “dilemma” it is one that at least four of the justices were only too eager to embrace. Each of the four could have avoided any such “dilemma” by simply voting to deny certiorari. So it is clear that at least these four are not troubled in the least by counsels of “political caution” that Prof. Feldman thinks might prevail to uphold the lower court’s decision. There is little reason why they should be.
The absence of any significant public discussion of an effective strategy, let alone any effective political action, aimed at reining in the Court’s authority to remake election integrity law according to is own political lights, has undoubtedly encouraged four or all of the Roberts 5 that they can continue plowing ahead with their annual ideological mission of removing any, even if now mostly symbolic, constraints on plutocracy. This vacuum of strategy has attracted from professional activists the counterproductive and futile approach of a constitutional amendment - which only serves to deflect attention from the culprits, five plutocratic justices, toward blaming the victim, the Constitution.
Even worse is the most misdirected version of an amendment that invokes the antiquated but marketably oxymoronic “corporate personhood” concept, which actually played no role in any of the Roberts 5’s campaign finance decisions. The Roberts 5’s decisions to date have met with feeble and uninformed opposition, mostly sending would-be opponents on the fool’s errand of seeking various poorly-drafted constitutional amendments, any of which could serve to even further empower the Roberts 5 if proposed and ratified, which is itself all but impossible. The 5 thus feel no effective political constraint on their ability to continue their annual assault on any remaining obstacle to their thoroughgoing plutocratic overthrow of democracy, because there simply is none.
It will likely be up to Chief Justice Roberts again, as in last year’s Obamacare mandate case, National Federation of Independent Business v. Sebelius, to decide which decision will best serve the plutocrats in face of a disorganized and ineffective, at best, opposition to money in politics. If the hitherto low quality of strategic thought continues from activists currently plying their trade in this corner of the public interest industry, such as was on display in last year’s Montana case, Chief Justice Roberts may well join the rest of his democracy destruction crew in going for the “royalist” option, overturning the “base” contribution limits at the retail level and not just what could be called the “aristocratic” solution of rejecting only the wholesale aggregate limits, which is the ostensible objective of the suit.
These options were both carefully preserved by the decision of the district court in McCutcheon, which is worth exploring at some depth as a case apparently custom designed for the Supreme Court by a movement conservative A-team. Under federal law, a three judge District Court was specially impaneled to hear this constitutional challenge to FECA brought by James Bopp Jr., the Thurgood Marshall of new Gilded Age plutocrat hyper-enfranchisement. Bopp represents a Republican activist and businessman Shaun McCutcheon who wants to give, and his Republican National Committee co-plaintiff who wants to receive, somewhat more than FECA’s aggregate contribution limits, 2 U.S.C. § 441a(a)(3), would allow. They carefully sued to strike down solely the aggregate limits without challenging the base limits that govern contributions to each individual candidate or committee.
David Sentelle, the movement conservative chief judge of the D.C. Circuit, who has served major Republican political causes from the bench in the past, appointed Judge Janice Rogers Brown (controversially arch-conservative/libertarian Bush II appointee), and Robert L Wilkins (2010 Obama appointee) to join the original judge on the case, James E. Boasberg (Yale Skull and Bones, 2010 Obama appointee). Judge Sentelle had written the landmark opinion constructed around a previous factually spare, movement activist generated “test case” in Speechnow.org v. FEC, 599 F.3d 686, (D.C. Cir. 2010) (en banc), which authorized unlimited contributions to Super Pacs, and thereby triggered the greatest excesses of money in politics since the first Gilded Age. Sentelle knew how to guide through the lower courts the next such case that could serve up to the Supreme Court a convenient vehicle for continuing their election integrity demolition project.
Brown, an ideological ally of Sentelle and also a movement conservative, came down from the DC Circuit Court of Appeals to lead the special district court panel. The other two judges are trial judges and, as Obama appointees, would be expected to uphold the FECA law on broad grounds. Judge Brown pulled rank to write the panel’s opinion upholding FECA, which for a Lochner-era property rights libertarian, must have created some cognitive dissonance for her. But the ruling had to go against the plaintiffs in order to set up an appeal to the Supreme Court, since the defendant FEC has learned not to appeal adverse decisions to a Court that is driving the agenda to deregulate money in politics.
Judge Brown also had to vote with the majority in order to control how the opinion was written. Her opinion appears designed by the A-list movement conservatives of Bopp, Sentelle and Brown to mount a fast track to the Supreme Court. Prof. Feldman attempts to explain what he describes as “Brown’s caution” in joining – even writing – the opinion against plaintiffs as reflecting “a worry about the negative public reception of Citizens United,” fearing it “would expose the conservatives to the criticism that they are handing our government over to the plutocrats.”
Not very likely. Prof. Feldman ignores the intervening Arizona and Montana cases that received no effective “negative public reception.” Activists may still be talking about Citizens United, but the Court has moved on to do far more damage since then without much notice.
Judge Brown’s opinion is crafted to allow the Roberts 5 to select either the royalist or merely aristocratic way of reversing the decision, depending most likely on the political climate at the time of their decision. The district court frankly anticipates reversal by saying “we decline Plaintiffs’ invitation to anticipate the Supreme Court’s agenda” to hold that a political contribution is as unregulatable as is an expenditure. The Court even provides the likely premise for such a holding: that restrictions on contributions have the effect of restricting expenditures, which were held at the original scene of the crime in Buckley to be identical to speech.
The Court explained the current technical justification for the distinction: “The aggregate limits do not regulate money injected directly into the nation’s political discourse; the regulated money goes into a pool from which another entity draws to fund its advocacy.” Since the same is true of all contributions, rejecting this distinction for aggregate limits would also affect all contributions, and thereby lead to the royalist option. Judge Brown again flags this possibility of overturning Buckley‘s contribution/expenditure distinction by stating “whether [Citizens United] will ultimately spur a new evaluation of Buckley is a question for the Supreme Court, not us.”
McCutcheon involves limits on channeling funds directly, or indirectly through party committees, to candidates themselves. This was a question that Citizens United, 130 S. Ct. at 909, formulated but expressly chose not to address when it declined to “reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”
Judge Brown posited that “Citizens United left unclear the constitutionally permissible scope of the government’s anticorruption interest. It both restricted the concept of quid-pro-quo corruption to bribery, see 130 S. Ct. at 908, and suggested that there is a wheeling-and-dealing space between pure bribery and mere influence and access where elected officials are “corrupt” for acting contrary to their representative obligations.” This formulation challenges the Supreme Court, in its inevitable reversal, to clarify whether in fact it intended only to allow the legislature to punish quid pro quo bribery and not to regulate less specific forms of influence peddling. Mr. Bopp does attack the “wheeling-and-dealing space” rationale in his initial brief, p.26. Again, a clarification of this scope of the legislature’s permissible interest by the Supreme Court would justify the royalist option by rejecting any limits on contributions not connected to bribery.
Even a Gilded Age lawyer for plutocrats and politician, Republican Elihu Root, in 1894 advocated an amendment to the New York state constitution to ban corporate money from financing elections “directly or indirectly” because “laws aimed directly at the crime of bribery so far have been ineffective …. because of the difficulty of proving and punishing the crime of buying votes.” Judge Brown served up a convenient handle for the Supreme Court to narrow the legislature’s permissible interest solely to ineffective bribery laws.
As a suit brought by an individual and not a corporation, Citizens United and its alleged holding about “corporate personhood” would have nothing to do with this case. Therefore the activists’ favorite soundbite in opposition to the Court’s jurisprudence of plutocracy cannot be used to criticize the Court’s decision. Moreover the actual holding of Citizen’s United that there can be no limits on independent expenditures also has no bearing on this case. Judge Brown writes: “We note contributions for independent expenditures are a different beast altogether,” note 2.
Judge Brown observes that “Plaintiffs do not, however, challenge the base contribution limits, so we may assume they are valid expressions of the government’s anticorruption interest. And that being so, we cannot ignore the ability of aggregate limits to prevent evasion of the base limits.” This argument making aggregate limits contingent on base limits, provides a very weak reed for supporting the “base limits” themselves, as a mere tactical assumption. And if that assumption fails, then the aggregate limits fall with it. That three of the questions presented to the Supreme Court challenged whether the aggregate limits served a “constitutionally cognizable interest” enables the court to inquire not just about the “evasion interest” but also whether there is a “cognizable” anticorruption interest to justify any contribution limits.
Mr. McCutcheon claimed that he was just interested in acquiring more “liberty” in the abstract with his money. He was not required to inform the court precisely which “liberty” could possibly be lacking for a person who can afford to spend over $60,000 a year buying it, in a 21st century America which is ruled by and for his class. Nor was he required to make a negative representation that he did not expect to earn any financial return from this amorphous “liberty” he sought to buy.
It is highly unlikely that a political investor like Mr. McCutcheon would want to buy Congress just to keep around the house and display to friends. What we know such political investors buy is policy that pays back their investment, and much more. One academic study showed that the rate of return was over 200 fold for one federal law. Other less formal policy studies show that twice to five times this return on investment may be more common. The district court seemed to take at an extremely superficial face value that the claim to be seeking “liberty” would absolve Mr. McCutcheon from any deeper inquiry into his likely corrupt intentions of subverting by his contributions the loyalty of the beneficiary politicians to their constituents. The Court declared in response to his uninspected representations: “Supporting general principles of governance does not bespeak corruption.” This superficial conclusion of fact makes it impossible to assess the degree of corruption implicated by the case, which is just the way the Supreme Court will want to have it presented – on the unrealistic set of facts accepted by the trial court that a plutocrat would spend substantial sums influencing public policy for a purpose other than turning a handsome profit. It is an extremely unlikely hypothetical, not based on any relevant factual record, that Judge Brown has designed both for this case, and as a talisman in future cases for plutocratic exculpation from charges of political corruption.
There is little doubt that the Roberts 5 will continue its demolition of election integrity in McCutcheon. The question is how far it will go. As the Roberts 5 remove, either in McCutcheon or in a later case, the final bricks from the low and permeable legislative wall guarding elections and politicians from corruption, it is clearly past time for any who may regret or are suffering from the passing of democracy in America to get serious and intelligent about a strategy to strip the Roberts 5 of jurisdiction to overturn influence peddling prohibitions and from acting as “the Judge of the Elections [and] Returns” of Congress. Constitution, Art. I, § 5, cl. 1.
Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United for Essential Information, an organization founded by Ralph Nader