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Campaign Finance: Roberts 5 Schedules Seventh Game in Their Plutocrat Series

By Rob Hager  Posted by George Flower (about the submitter)       (Page 1 of 4 pages) (View How Many People Read This)   3 comments
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(Article changed on March 1, 2013 at 11:52)

plu -toc -ra -cy   

  1. Government by the wealthy.
  2. A country or society governed in this way.

 On Monday, February 25, 2013, the Supreme Court denied certiorari in U.S. v. Danielczyk, 791 F. Supp. 2d 513 (E.D. Va. 2011), rev'd 683 F.3d 611 (4th Circuit 2012), an attempted appeal seeking to bring down the whole house of what is left of campaign finance regulation. The appellate court's decision in Danielczyk reconfirmed that a corporation cannot make direct contributions to a candidate, thereby upholding the distinction made in Buckley v. Valeo (1976) between candidate and party contributions, which Buckley held can both be regulated, and the independent expenditures which Citizens United emphasized could not be restricted, whether received from corporations or any other source.  The Supreme Court declined review of this decision because it had acquired a preferable vehicle for reversing the contribution rule of Buckley v. Valeo.

 On February 19, the Court agreed to review a decision upholding federal law restricting aggregate electioneering contributions. This decision was made by a 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 campaign finance case in seven years. Before discussing this case, which has been extensively treated in various forums, the context for this 2013 installment of the Court's ongoing dismantling of campaign finance laws may aid understanding of 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 two years stint on the D.C. Circuit.  This was an apparent exchange for Roberts' masterminding the litigation strategy which led to Bush's appointment to the presidency in Bush v Gore. When Bush then elevated the known to be far right-wing 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 also voted against filibustering his appointment, merely postured for public consumption in the first vote, since by their second vote they indicated that they opposed neither Alito nor the potentially permanent transfer of the third branch of government to movement plutocrats which his appointment effected. 

 This belies the notion that Democrats preserved the filibuster tool in 2013 for Republican use in blocking legislation because they might want to use it 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. 

 After Alito topped up the new Roberts 5 majority faction on the Supreme Court, its campaign finance decisions swerved immediately toward radical deregulation of money in politics. Combined with Congress' supine response to them, these decisions have jeopardized democratic governance by making money sovereign while marginalizing the consent that the governed give their representatives, who among other things have since 1976 approved justices increasingly hostile to any legislative constraint on the corrupt overthrow of democracy by money in politics.

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 reform, 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 candidates, Randall v. Sorrel (2006);

  2) giving corporations the unlimited capacity to buy elections under the guise of sponsoring "issue ads," FEC v. Wisconsin Right to Life, Inc. (2007); and

  3) facilitating plutocrats like 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 Citizens United v. Federal Election Commission (2010), which would become the Court's centerpiece campaign finance ruling. The narrow question presented in Citizens United was expanded in scope by the Court in 2009 to accommodate the broad ruling the Roberts 5 sought to make in time to influence the 2010 elections. The decision allowed unlimited electioneering expenditures, whether by for-profit corporations or anyone else, if considered "independent" of the candidate. This case won 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 developments signaled in Citizens United  were more important than the decision itself, such as, 1) its counter-factual decree unsupported by any judicial fact-finding process that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption," 2) its apparent restriction of legislative power to prevent political corruption solely to the prosecution or prevention of bribery, 3) instructing Congress that the Constitution does not permit it to foster equality ("anti-distortion") in its regulation of elections, and 4) the extreme violation of the constitutional separation of judicial from legislative powers that these essentially legislative rulings involved.

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