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The McCutcheon Ruling

Plutocratic Jurisprudence: Case VII

by ROB HAGER

By overturning federal aggregate limits on individual contributions to candidates and parties in McCutcheon v. Federal Election Commission,the Supreme Court yesterday refitted the coin-operated political system it has maintained since 1976 so as to take larger bills.

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—all to benefit his political party and its candidates…. 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 amount of money plutocrats can invest in politics by almost thirty times was highly predictable.  It is yet another act of judicial supremacy from a Court that will continue dictating laws for the country until a corrupt Congress is forced by the People to stop them with effective legislation.  For a detailed background analysis of McCutcheon this writer’s article published following the oral argument of McCutcheon may be consulted.  That article concluded that at the October 8, 2013 “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 majority opinion is of little intellectual value.  It predictably provides superficial legal-sounding rationalizations for allowing plutocrats to buy elections that are factually and legally unsound.  Justice Breyer’s opinion on behalf of the four usual dissenters summarizes: “The result … 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.”

Only on the last point does Breyer exaggerate somewhat.  Before McCutcheon there was nothing significant that “remain[ed] of campaign finance reform.”  This writer cautioned against such hyperbolic alarms about the actual impact of McCutcheon 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 since at least before Citizens United and it will remain only a more narrowly owned plutocracy after McCutcheon.

No corporation was involved in McCutcheon.  Since the case solely involved the far more significant issue of contributions by shamelessly plutocratic individuals, the deceptive “corporate personhood” soundbite used by professional activists like “Move to Amend,” and others, cannot apply to this case.  The problem is not a Gilded Age doctrine that was resolved in the New Deal era.

Instead C.J. Roberts builds upon a doctrine that actually was discussed in Citizens United, its narrow definition in dicta of the type of “corruption” that the people are entitled to criminalize, according to 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 uses dicta planted in Citizens United as if it were precedent.  This new rule invented by the Court from thin air limits Congress’ power to protect election integrity solely to laws targeting specific acts of individual bribery.  This new rule legalizes the more common crime of influence peddling that does not amount to an express 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.  No previous Court had questioned regulation of the less direct form of corruption as a valid concern of Congress.

It constitutes a blatant act of judicial legislation for the Supreme Court to decree that the public has no valid concern in criminalizing forms of public corruption that fall short of outright bribery but nevertheless have the same ultimate effect of undermining democracy and public integrity.  Such a proposition is nowhere remotely suggested by any text in the Constitution, and certainly not by the phrase “freedom of speech.”

Roberts, as the Court has in every decision legalizing political corruption, hides his judicial legislation behind the distorted interpretation of the three words “freedom of speech,” claiming that those three words all the Supreme Court to mandate a system where elections may be freely purchased by plutocrats.  But 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 violates 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 trump the speech rights of all but those 400 plutocrats who can buy policy in the pay-to-play system created by the Supreme Court, without any regard to what the public may think or say about that policy.

Breyer shows 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.  This, contrary to Roberts’ view, can easily violate even the Roberts-endorsed bribery interest.  Surely a sole funder can ask and receive nearly anything of a wholly-owned politician.

More important, Roberts provides 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 past, having been replaced by systemic party-based corruption.  Roberts quotes Buckley (1976) to support his truncated concern with the “’abuse inherent in a regime of large individual financial contributions’ to particular candidates.”  Retail corruption, recently depicted in the film American Hustle, was the problem in 1976 when political corruption was undertaken one politician at a time.  But now after several decades of legalized wholesale corruption we have parties that are systemically corrupt and operate as shakedown gangs.  They sell corrupt policies at the party level where actual results are routinely delivered to those who pay.  Either party needs to raise about 1.5 billion to buy their way into control of Congress so as to have something to sell in order to enable incumbents to raise enough money to remain in office.

The party now acts as an enforcer of the corrupt system by recruiting incumbents to dial for dollars nearly full-time for the party.  Snagging $3.6 million from a few plutocrats will give both the fundraising incumbent and the contributors of such amounts clout with the governing party’s leaders who control the political agenda. Breyer explains “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.

Roberts closes his opinion by addressing this reality as merely a “new rationale for the aggregate limits” rather than a new reality that breaks his convenient but mismatched paradigm.  He claims, without offering any cogent reason, that this rationale “does not wash.”  He accurately observes 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 reason not to control this far greater and more effective corruption.  It certainly will take far move comprehensive regulation to rid the country of the corrosive systemic corruption that defines the New Gilded Age plutocracy created and faithfully maintained by the Supreme Court majority.  This fact is certainly no reason to make the problem worse rather than to undertake the more expansive task of cleaning up the far larger mess than the Court found in 1976.

The Solicitor General 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.  By limiting legitimate concern to solely “to particular candidates” Roberts shows he is inhabiting a different world than the real world of systemic corruption described by the Solicitor General.  Roberts therefore does not even acknowledge the contraction of the size of the ruling class that McCutcheon effectuates.  He ignores, by merely describing, the reality of systemic corruption because he can.

Breyer invokes, without elaborating, the illegitimacy of the Court’s factually unsupported speculations that the aggregate limits do not serve a legitimate interest in controlling political corruption.  He notes “this Court’s expertise does not lie in marshaling facts in the primary instance.” 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.  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 that would justify rejecting Congress’s politically more legitimate findings.  In this case five justices were content to simply invent whatever facts they needed to spin their unsupported legal arguments.  The judicial supremacist justices made no pretense of making legitimate judicial findings of fact that would be worthy of deference by the elected branches.

Instead of the “umpire” with “no agenda” that he disingenuously promised the Senate when his nomination was under consideration in 2006, CJ Roberts has given us the opposite.  Then he said: “Umpires don’t make the rules, they apply them.”   A former schoolmate of Roberts, now a doctor, accurately described Roberts’ in a way that applies to his pretense of not 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 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 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 dissembled his way onto the Court.  He was appointed by the very President whose election he helped to steal.  See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2008) 175.  And he has now committed serial acts of “treason to the constitution” by usurping legislative power in the service of plutocracy.  Cohens v Virginia, 19 U.S. at 387(1821) (C.J. Marshall).  Though he has never won an election this illegitimate justice presumes to make law for the country.

Roberts misses the irony in his statement that “those who govern should be the last people to help decide who should govern.”  He thinks he is aiming that platitude at Congress under the pretense that Congress governs.  But Congress does not govern under the Supreme Court’s judicial supremacy ideology.  The Court now governs, and Congress is paid by plutocrats to leave the Court in charge of corrupting its elections. .The Court has proven once again that, as the Constitution itself provides, it should have no role whatsoever in inventing new election law contrary to that which the people themselves desire.

Notwithstanding repeated calls for a futile and even counterproductive constitutional amendment in response to cases like McCutcheon, the case again demonstrates that the problem is not the Constitution but a Supreme Court that flagrantly violates the Constitution separation of powers without effective public response.

Because the public response has been so ineffective, diversionary and indeed counterproductive, the Court can be expected to move on to its next 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.”  Thomas spelled out what this meant in his concurrence arguing for overthrowing contribution limits altogether. That pretty much translates as inviting the next case requesting the final blow to campaign finance by eliminating the “base” limits left standing in McCutcheon.  Just because they can.  At least until the People adopt an effective strategy to stop them by forcing Congress to strip the Court’s jurisdiction over elections.

Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief in the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullockand has worked as an international consultant on legal development and anti-corruption issues.