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Of Quids and Quos

The Biases of Justice Roberts

by CHRISTOPHER BRAUCHLI

No matter whether th’constitution follows th’ flag or not, th’ supreme coort follow th’ iliction returns.

– Finley Peter Dunne, Mr. Dooley’s Opinions

As usual, I am indebted to readers whose perceptive questions cause me to reflect on matters raised by them.  The question this week is why Chief Justice John Roberts did not insert any smiley faces in his opinion in the case of McCutcheon v. Federal Election Commission.  It is obvious to any reader of the opinion that he was having a good time writing that opinion and the friendly gloss he bestowed on bribery would have been enhanced by a smiley face.  Since we have incorruptible politicians running the country (except for the few who inadvertently end up in jail) Chief Justice Roberts and four of his colleagues assure us we need not be alarmed by the effect of gifts of large sums of money to the campaigns of those seeking elected office.

It is difficult, but not impossible, to select one sentence in 46 pages of the Chief Justice’s opinion that stands out as the most amusing.  A good candidate is found on page 2 of his opinion, however, where he says:  “We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”  For the benefit of my non-lawyer readers, “general gratitude” is not a term taught in law school nor is it a particular word of art.  It simply describes the warm feeling a political candidate has upon receiving a large sum of cash from someone who, before the gift, was a complete stranger.

To bolster that bit of jurisprudential nonsense the Chief Justice hearkens back to an earlier triumph in judicial nonsense, Citizens United v. Federal Election Comm’n.   He quotes approvingly from that opinion that:  “Ingratiation and access . . . are not corruption.” (“Ingratiation” is the product of  “general gratitude.”)  Those are but a couple of the Chief Justice’s attempts at whimsical analysis.  Early in his opinion he approvingly notes that the Court has historically said that Congress cannot “regulate contributions simply to reduce the amount of money in politics or to restrict the political participation of some in order to enhance the relative influence of others.”

What the Chief Justice means by “enhance the relative influence of others” is that if the election process were a level playing field, the poor and the rich would have exactly the same opportunity to influence the outcome of the election.  Money would not make a difference. The result of that would be to deprive the wealthy of the ability to obtain “ingratiation and access” that large contributions give them.

Chief Justice Roberts observes that current law permits a voter to contribute up to $5,200 to nine candidates but not an additional $5,200 to a tenth.  If there are more than nine candidates the wealthy voter would like to support, “the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences.”  That he describes as a “clear First Amendment” harm.  It penalizes the voter for “robustly exercising his First Amendment rights.” He observes that working for a candidate by going door to door on the candidate’s behalf is no substitute for giving money since if a voter wants to support 50 candidates the voter cannot possibly have enough time to do canvassing for all 50 candidates.  By removing the limit on the total amounts a voter can give during an election cycle, a voter can contribute in a meaningful way to the campaigns of 50 or even 500 candidates.

If the reader wants one thing to carry away from the opinion the reader should focus on the Chief Justice’s elaborate discussion of quid pro quo.  If there’s a quo for the quid, then it’s bad.  “Access” and “ingratiation” are not quos because, according to the Chief Justice, they are not tangible benefits.  A quo that has a tangible benefit for the donor is a no-no-quo.

That, to someone not as sophisticated as the Chief Justice and his four concurring colleagues, would seem to be a difference that makes no difference.  As Justice Breyer explains in his dissent, “Bribery laws. . . address only the most blatant and specific attempts of those with money to influence governmental action.  The concern with corruption extends further.”  He observed that in an earlier case the court considered undue influence to be as corrupt as a quid pro quo agreement.  Chief Justice Roberts and his colleagues do not see it that way.

There is much more to the Chief Justice’s opinion than limited space permits me to explain and reading a column such as this is no substitute for reading the entire United States Supreme Court opinion–unless a reader’s time is valuable.  In that case this is an adequate substitute.

Only a Justice more interested in the outcome than the law could write an opinion like the one in the McCutcheon decision.  Chief Justice Roberts is such a Justice.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu