On Monday, February 25, 2013, the Supreme Court denied certiorari review of U.S. v. Danielczyk, 791 F. Supp. 2d 513 (E.D. Va. 2011), rev'd 683 F.3d 611 (4th Circuit 2012), a failed attempt to have the Supreme Court bring down the whole house of what is left of campaign finance regulation. The appellate court's decision in Danielczyk reconfirmed that corporations cannot make direct contributions to a candidate. The Circuit Court's reversal of the district court's decision to the contrary sustained the distinction made in Buckley v. Valeo (1976) between independent electioneering expenditures, which Citizens United emphasized could not be restricted -- whether made by corporations or any other source, and the contributions to candidate and party, which Buckley held can both be regulated. The Supreme Court declined review of this decision because it had acquired a preferable vehicle for reversing the limits on contributions rule of Buckley v. Valeo.
On February 19, the Supreme Court agreed to review a decision upholding federal election law that restricts aggregate electioneering contributions. This decision was made by an ad hoc three-judge district court 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 case for overturning campaign finance laws in as many years.
Before discussing this latest case, a review of the context for this 2013 installment of the Court's ongoing dismantling of campaign finance laws may aid in understanding its significance.
The Roberts 5
The current majority took control of the Supreme Court after George W. Bush rewarded corporate lawyer John Roberts with the Chief Justiceship after appointing him to a legitimizing two years warm-up stint on the D.C. Circuit. These appointments were an apparent exchange for Roberts' masterminding the litigation that led to the electorally defeated G.W. Bush's appointment to the presidency by judicial decree in Bush v Gore, 531 U.S. 98 (2000). When Bush elevated the known to be far right-wing Judge Samuel Alito from the Third Circuit Court of Appeals to replace centrist Justice Sandra Day O'Connor, a majority of plutocratic judges controlled 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 then also voted against filibustering his appointment, merely postured for public consumption in the first vote. Their second vote refusing to join 25 filibustering Senators indicated that they actually opposed neither Alito's appointment nor the potentially permanent transfer of the third branch of government to movement plutocrats, as was predictably effected by Alito's appointment.
This vote belies the notion that Democrats preserved the filibuster tool in 2013 for Republican use in blocking legislation because Democrats might wish to reciprocally use minority veto power 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 one of only two Supreme Court nominees, other than Robert Bork, ever to be opposed by the ACLU and to thereby prevent the seizure of the third branch by the far fight. Their votes for plutocracy might have been the most fateful decision these feckless Democrats made.
After Alito topped up the new Roberts 5 majority faction on the Supreme Court, its campaign finance decisions immediately swerved toward a radical, systematic deregulation of money in politics. Combined with Congress' supine response to them, these decisions have jeopardized democratic governance. The Roberts 5 have made money sovereign while marginalizing the consent that only the governed voters are supposed to give their representatives. Those representatives have since 1976, among other things, approved justices increasingly hostile to any legislative constraint on the corrupt overthrow of democracy by money in politics, without making any effort to insist on justices who show greater deference to Congress' own constitutional powers over elections and their integrity.
The Plutocratic Playbook
Before 2010's notorious Citizens United stirred up public attention about the Roberts 5 plutocracy project, they had already decided three cases that fatally wounded campaign finance laws, by:
1) prohibiting states from setting reasonable limits on election spending and contributions that might have allowed, say, some of the upper middle class to compete financially in funding and influencing candidates, Randall v. Sorrel (2006);
2) giving corporations the unlimited capacity to buy elections under the thin disguise of sponsoring "issue ads," FEC v. Wisconsin Right to Life, Inc. (2007); and
3) facilitating plutocrats like New York's Mayor Bloomberg in buying their own elections with their personal fortunes, 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 a case which would become the Court's centerpiece campaign finance ruling, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The narrow question presented in Citizens United about the legality of subsidizing the pay-per-view broadcast of a non-profit's anti-Hillary Clinton video, an extended "issue ad," was expanded in scope by the Court for reargument after hearing argument in 2009. While the outcome of the case was never in doubt, the Court signaled it wanted to use the case to make a far broader ruling in time to influence the 2010 elections. The ultimate decision on January 21, 2010 allowed unlimited electioneering expenditures, whether by for-profit corporations or anyone else, if considered "independent" of the candidate. This case received greater attention from the public, though elections were already awash in money before the Court allowed corporations this fuller participation in the money game.
Certain doctrinal changes signaled in Citizens United were more important than the case decision itself, which had the fairly modest impact of authorizing Super Pacs to receive around 12% of their funds from for-profit businesses. These changes included its:
counter-factual decree, unsupported by any judicial fact-finding process, that the Constitution must be read to establish for all time and all contexts that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption;"