It will likely be up to Chief Justice Roberts again, as it was in the Obamacare mandate case, National Federation of Independent Business v. Sibelius (2012), to decide what outcome will best serve the plutocrats in face of the disorganized and ineffective, at best, public opposition to money in politics.
The low quality of strategic thought from activists currently plying their trade in this silo of the public interest industry was on full display to the Court in last year's Montana case where the professional activists actually supported the plutocrats' position of seeking Supreme Court review for the case rather than opposing review on constitutional grounds. Prolonging the case would marginally increase fundraising possibilities, so the purveyors of bad strategy actually opposed a victory in the Montana case, which would have required another vote for Breyer's dissenting opinion for denying review on the merits.
Facing such counter-strategic opposition, Chief Justice Roberts is free to choose to join the rest of his democracy destruction crew in going all the way to the Mitch McConnell royalist option. The 5 could overturn the "base" contribution limits at the retail level and not limit themselves to what could be called the "aristocratic" solution of rejecting only the wholesale aggregate limits, as is the ostensible objective of McCutcheon. There is a chance that Roberts might on the other hand be more attentive to institutional concerns and, realizing that McCutcheon will have no significant impact on the systemic plutocratic control of national politics in any event, do another Sebelius by splitting the difference . The longer it takes for the decision in the case to be issued, the more likely that Roberts is taking time to determine the political pulse of the Court's PR success this term before he jumps to a decision. Splitting the difference might involve overturning aggregate limits on candidates while sustaining the limits on parties, on grounds addressed by Roberts and Alito in oral argument.
7. Designer Case
Both royalist and aristocratic options were carefully preserved by the decision of the district court in McCutcheon. This decision is worth exploring at some depth as a test case custom-designed for the Supreme Court super-legislators by a movement conservative A-team. Under federal law, a three judge District Court was specially assembled to hear this constitutional challenge to FECA brought by James Bopp, Jr. Bopp is the Thurgood Marshall of new Gilded Age super-enfranchisement of the plutocrat minority. He represents a Republican activist and businessman Shaun McCutcheon. Mr. McCutcheon wants to give, and his Republican National Committee co-plaintiff wants to receive, somewhat more than is now allowed by FECA's aggregate contribution limits, 2 U.S.C. 441a(a)(3). The amount Mr McCutcheon states that he would like to give is designed to be only slightly more than the permitted amount. This will understate the effect of overthrowing the contribution limits for purposes of any propaganda campaign around a plutocratic victory in the case. This strategy was used in Citizens United in which the publicized facts about the case were far less significant than the Roberts 5's extreme political rulings and doctrinal changes which had little to do with those facts.
The McCutcheon plaintiffs also carefully sued to strike down solely the aggregate limits without challenging the base limits that govern contributions to each individual candidate or committee. This enables the incremental development of doctrine by the Roberts 5 that weakens the foundations of its next target, without attracting more attention before or at the time of decision than they choose. This strategy was used in overturning the Voting Rights Act. Both these tactics also reflected those used in Bopp's biggest case, Citizens United: give the Court a case that looks like short yardage to the uninitiated, and the Roberts 5 will carry it into the end-zone themselves if they see a political opening. The A-Team knows how to feed the Court opportunities to spit out legislation, rather than resolve real cases by judicial decision.
David Sentelle, the movement conservative chief judge of the D.C. Circuit, who has in the past regularly served major Republican political causes from the bench, appointed Judge Janice Rogers Brown (controversially arch-conservative/libertarian Bush II appointee), and Robert L Wilkins (2010 Obama appointee, and 2013 nominee for the Court of Appeals) to join the original district 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 sparse, movement activist generated "test case" in Speechnow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc). In Speechnow.org Sentelle read Citizens United to authorize unlimited contributions to Super Pacs, and other independent electioneers, which by 2012 triggered the greatest excesses of money in politics since the first Gilded Age. Sentelle knew how, with Bopp's assistance, to serve up to the Supreme Court a suitable vehicle for sequencing their election integrity demolition project.
Brown, an ideological ally of Sentelle and also a movement conservative, was assigned by Sentelle from the DC Circuit Court of Appeals to lead McCutcheon's special district court panel. The other two members are trial judges and, as Democratic appointees, would -- like the Democratic justices on the Supreme Court -- be expected to uphold legislative authority to impose contribution limits on broad grounds without regard to any appellate agenda. The ruling had to go against the plaintiffs in order to set up their intended appeal to the Supreme Court. The defendant FEC has learned not to appeal adverse decisions to a Court that is driving the agenda to deregulate money in politics. So Sentelle needed to assure that the plaintiffs lost in the trial Court in order to get them into the Supreme Court. Appointing two Democrats guaranteed that outcome.
To control how the opinion was shpaed, however, Judge Brown had to vote with the majority, which for a "consummate Ayn Randian," Lochner-era property rights libertarian, must have created some cognitive dissonance for her. It might have reduced the dissonance that by putting this "moderate" decision on her resume on September 28, 2012, while also advancing the movement's cause, she may have been grooming her credentials as a potential replacement for Justice Clarence Thomas in the possible event a Republican should reach the White House.
By joining the majority, Judge Brown, as a Circuit Judge, was able to pull rank for authoring the panel's opinion. Her opinion appears designed to provide the fat target for reversal that earned it a place on the 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 if it reflected, on the far right, "a worry about the negative public reception of Citizens United," fearing that a different outcome "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 2011 Arizona and 2012 Montana cases that received no appreciable "negative public reception," though they were arguably more strategically damaging than Citizens United. Like Prof. Feldman, activists may still be talking about Citizens United, but the Court has, without much notice by them, moved on since then to even more effective means for "handing our government over to the plutocrats." McCutcheon is nearly as technical as the Arizona and Montana cases, and so is no more easily reducible to such misleading soundbite treatment for activist fundraising such as the "corporate personhood" slogan they pasted on Citizens United.
As a suit brought by an individual and an unincorporated association, and not by a corporation, McCutcheon has nothing to do with Citizens United's alleged holding about "corporate personhood." Therefore the activists' favorite -- albeit irrelevant -- soundbite in opposition to the Court's jurisprudence of plutocracy cannot be used to criticize the Court's McCutcheon decision. Moreover the actual holding of Citizens United -- that there can be no limits on independent campaign expenditures from any source -- also has no bearing on McCutcheon. Judge Brown writes: "We note contributions for independent expenditures are a different beast altogether," note 2. McCutcheon involves limits on channeling funds from rich people either directly, or 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's opinion is crafted so the Roberts 5 may select either the royalist or merely aristocratic way of reversing the decision, depending most likely on Roberts' political calculus at the time the decision is issued. The Roberts Court is primarily a PR manager for plutocratic policy. The district court frankly anticipates reversal by saying "we decline Plaintiffs' invitation to anticipate the Supreme Court's agenda" to hold that political contributions are as unlimited as any expenditure. Judge Brown even provides the most simple, if not simplistic, causal premise for such a holding: that restrictions on contributions have the ultimate effect of restricting expenditures, which were held at the original scene of the crime in Buckley to be identical to speech and not subject to limitation.
Judge Brown drily explains 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 reasoning applies to all contributions, rejecting this technical distinction for aggregate limits would readily lead to the royalist option of legitimizing all contributions.
Judge Brown again flags that overturning Buckley's contribution/expenditure distinction would be above her pay-grade by stating "whether [Citizens United] will ultimately spur a new evaluation of Buckley is a question for the Supreme Court, not us." Judge Brown posited that:
"Citizens United left unclear the constitutionally permissible scope of the government's anti-corruption 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."
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