This formulation, the second unreferenced half of which is clearly erroneous and is also the subject of some academic debate, invites the Supreme Court, in its inevitable reversal, to reconfirm its intent to allow the legislature solely to regulate quid pro quo bribery and not any other form of influence peddling based on the existence of some less precise "representative obligations" to constituents. In his initial brief, p.26, Mr. Bopp advances this ground for reversal by attacking the "wheeling-and-dealing space" target likely painted on the case deliberately by Judge Brown. A clarification of the legislature's permissible (i.e. "cognizable") interest by the Supreme Court would justify rejection of any limits on contributions not narrowly addressed to bribery alone.
Even an archetypal Gilded Age politician and lawyer for plutocrats, Republican Elihu Root, understood the futility of bribery laws alone to control political corruption. In 1894 Root advocated an amendment to the New York state constitution for banning corporate money from financing elections "directly or indirectly." He argued that "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 further narrow solely to ineffective bribery laws the legislature's permissible scope of regulatory power to prevent political corruption.
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 anti-corruption 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 the "assumed" validity of base limits, to avoid "evasion" (i.e. circumvention) of those limits, provides a very weak reed for supporting the validity of the "base limits" themselves. Their validity is left hanging on a mere debating point conceded by Mr. Bopp's pleading strategy which was easily revised by inviting Sen. McConnell to attack the base limits and by substituting another lawyer to argue for Bopp's clients in the Supreme Court. Determining whether the aggregate limits fall may entail a re-inspection of whether the assumption about base limits must also fail. That three of the questions presented to the Supreme Court by Mr. Bopp challenged whether the aggregate limits served a "constitutionally cognizable interest" enables the Court to inquire not just about the "evasion" interest Congress may have, but also whether there is a "cognizable" anti-corruption interest to justify Congress in setting any contribution limits, aggregate or otherwise.
The Court will balance such legislative interests against Mr. McCutcheon's claim that he is interested in acquiring more "liberty" in the abstract with his money. He was not required to inform the district court precisely which "liberty" could possibly be lacking for one who can afford to spend twice the median household income buying it, in a 21st century America which, more than any other rich developed country in history, of its size, is ruled by and for his own class of plutocrats. Nor was Mr. McCutcheon required to make a negative representation that he did not expect to earn any financial return from this amorphous "liberty" he sought to buy from the specific beneficiaries of his largesse. Such inquiry might uncover the quid for McCutcheon's expensive quo .
It is highly unlikely that a political investor like Mr. McCutcheon would want to buy Congress just to keep around the house in a trophy case. What we know such political investors buy is policy that returns their investment many times over. 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. Data shows that money in politics yields gains in corporate share values from both parties. The district court seemed to take at an extremely superficial face value that a bare claim of seeking abstract "liberty" should absolve Mr. McCutcheon from any deeper inquiry into the specifics of his more likely corrupt intentions of subverting, by contributions, his beneficiary politicians' "representative obligations" to the 99.9% of their constituents who give them no such noticeable, if any, contributions. Judge Brown whitewashed this uninvestigated motive: "Supporting general principles of governance does not bespeak corruption." Claude Raines would be shocked, shocked to discover the contrary. In this way the district court, whose job it is to sift suspect factual claims for the truth, instead hands the Roberts 5 more fiction to incorporate into its fairy-tale picture of political corruption that they have been re-touching since 2006 as benign "speech."
The district court's superficial conclusion of fact allowing the Roberts 5 to sidestep the degree of corruption implicated by the case is just the way they would like the case presented: a sparse and unrealistic set of facts accepted by the trial court, specially manufactured for yet another in a series of constructed test cases by movement activist groups like Wisconsin Right to Life, Inc., Citizens United, Arizona Free Enterprise Club, American Tradition Partnership, and Speechnow.org, positing that a plutocrat would counter-intuitively spend substantial sums influencing public policy for interests other than turning public resources into private profit.
Judge Brown has designed this extremely unlikely "liberty" hypothetical both for the Supreme Court in this case and perhaps as a talisman for exculpating plutocrats from charges of political corruption in future cases, as well. Boodle in pursuit of profit is, in the judicial plutocrats' wonderland lexicon, "speech" in pursuit of "liberty."
8. Oral Argument
Attorneys for the appellants and for Senator McConnell split their time and issues. Senator McConnell's attorney made the "royalist" argument that "all restrictions" on contributions should be overturned. The parties who were represented by a 2008-09 law clerk for Chief Justice Roberts made the aristocratic argument against aggregate limits, which was pitched more to Roberts. C.J. Roberts had authored the last full decision for the Court on campaign finance in Arizona Free Enterprise Club v. Bennett (2011). In that case Roberts had relied heavily on the Court's new Citizens United rule that campaign finance legislation "cannot be justified by a desire to 'level the playing field.'" His former law clerk therefore claimed that, because the Court has thus prohibited Congress from protecting equality of access to political speech, the "aggregate contribution limits are an impermissible attempt to equalize the relative ability of individuals to participate in the political process." Hence, the argument goes, aggregate limits are not just lacking in "cognizable" anti-corruption support, but they are also affirmatively evil by attempting to promote equality. The paradox that equality is expressly found in both the Constitution and the Declaration of Independence, while money in politics is not invokes no irony in plutocrats.
The alternative defense of aggregate limits is that they prevent circumvention (evasion) of the base limits through indirect means. The base limits, justified as anti-corruption measures, thus justify aggregate limits. Discussion of this issue floated into abstract hypotheticals as to how such circumvention can actually occur, without ear-marking in violation of FEC regulation, to indirectly deliver excessive funds from one principal source into the pocket of a particular candidate. This part of the oral argument seemed to indicate that no one speaking, including the judges, actually knew much about how the hydraulics of the money flow in politics actually works.
Justice
Sotomayor brought this line of inquiry down to earth by noting, "we're talking in the abstract. ... We don't have a record below."
A legislature can make new law based on abstract speculation but it
is the job of a Court to sift facts and premise rulings on those facts in determining whether Congress has acted reasonably to achieve a
legitimate purpose. Justice Scalia defended the Bopp/Sentelle/Brown
"test case" facial attack fact-free strategy specially designed for
judicial legislation, by saying "we don't normally require a record
to decide questions of law." The Court's conversion of various amounts and flows of money into constitutional "speech" is considered a "question of law," not alchemy. It requires a
record to decide the specific facts of actual Article III cases by
applying known principles of law to them. But the Court requires no
such record for fact-finding in order to usurp legislative authority. The Roberts rewrite law based on nothing more than their claim to authority for divining the framework for a plutocracy in three words: "freedom of speech."
The parties' attorney picked up on Scalia's comment to propose the legislative trick Roberts had recently used to overturn the Voting Rights Act, claiming that the aggregate "limits are facially over- and under-inclusive." In other words Congress was aiming in the right direction but the Court could provide an advisory opinion that requires a better targeted law with fewer misses and unintended hits. This Court's opinion could be independent of any actual facts in the case if undertaken as a "facial" attack on the law, rather than assessing the quality of Mr. McCutcheon's freedom of speech which resides well above 99.8% of American voters.
Alito and Roberts both seemed to
take to the approach of their tailoring a legislative means to prevent the circumvention of the
base limits but in a way that would still allow a political investor to
give the $3.6 million per election cycle that base limits would permit if
unrestricted by aggregate limits. Roberts had taken this same
theoretical approach of a "facially
over- and under-inclusive" ground for overturning one of the most
important landmark acts of Congress, as
the author of the Court's last decision of an election law case.
Roberts' decision in Shelby
County v. Holder
(June, 2013), the Voting Rights Act case, ranks right down there in
the same league with Dred
Scott (1857)
and
Plessy
v.
Ferguson (1895)
as
an example of judicial supremacy blatantly deployed to usurp
legislative powers and deny fundamental democratic rights.
Justice Sotomayor again tried to pull the "facial" attack discussion back to the Court's Article III powers: "Don't you need facts to prove that or disprove that proposition?" The Roberts 5 legislative branch needs no facts to invent laws.
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