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OpEdNews Op Eds    H1'ed 4/5/14

The Plutocratic Jurisprudence of the Roberts 5: Episode VII

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By overturning federal aggregate limits on individual contributions to candidates and parties in McCutcheon v. Federal Election Commission, the Supreme Court on April 2, 2014 refitted the coin-operated political system it has maintained since 1976 so as to take larger bills from fewer patrons.

As Justice Breyer described the change, "without an aggregate limit, the law will permit a wealthy individual to write a check, over a 2-year election cycle, for $3.6 million.... Present aggregate limits confine the size of any individual gift to $123,200. Today's opinion creates a loophole measured in the millions."

The Roberts Court's 5-4 decision multiplying the maximum amount of money plutocrats may now invest directly in politicians and their parties by almost thirty times was entirely predictable. The only suspense was how the Court would attempt to squeeze its latest plutocratic jurisprudence under the sparse cover provided by the words "freedom of speech." It did so only by committing yet another blatant act of judicial supremacy, without bothering to provide much in the way of credible argument linking its ruling to the Constitution. Because it does not have to.  It's Supreme.

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McCutcheon provides the latest signal that the Court, lacking effective public opposition, will continue dictating laws for the country until a corrupt Congress is forced by the People to "check and balance" them with effective legislation stripping their jurisdiction over such political questions as election integrity and public corruption.

For a detailed background analysis of the case this writer's article published following the October 8, 2013 oral argument of McCutcheon may be consulted. That article concluded that at the "hearing of [McCutcheon], a majority of the Court indicated it would be the seventh Supreme Court decision overturning campaign-finance laws in as many years." The conclusion was foregone and is not now news to anyone who has been watching. But it is nevertheless worth considering the arguments contained in the three opinions from the Court for purposes of understanding how best to counter them.

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The majority opinion is of little intellectual value. Detailed parsing would lend it undeserved dignity. It predictably provides superficial legal-sounding rationalizations, false analogies, and ipse dixits for empowering plutocrats which are factually, legally and institutionally unsound. Justice Breyer's opinion on behalf of the four usual dissenters, described by Harvard Professor Lawrence Lessig as "classically geeky," provides a tepid though serviceable summary: "The result ... is a decision that substitutes judges' [uninformed and institutionally invalid] understandings of how the political process works for the [expert and supported] understanding of Congress; that fails to recognize the difference between [democratic] influence resting upon public opinion and [plutocratic] influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform."

Breyer exaggerates only on the last point about "devastat[ion]". Before McCutcheon there was nothing significant that "remain[ed] of campaign finance reform." The existing law had been described as "an unsatisfying, unworkable tangle that enormously complicates the practice of politics." It thereby serves to keep politics an impenetrable insider's game.  But it does not keep money from corrupting politics, but rather legalizes bribery.  

This writer cautioned against hyperbolic alarms about the actual impact of McCutcheon that are typical of fundraising pitches from professional activists: "We should not exaggerate what is at stake for most voters in the 2013 edition of the Roberts 5 annual 'whack an election integrity law' series.... By overturning aggregate limits for either candidates or parties, or both, in McCutcheon the Supreme Court ... will reduce from the fewer than .02% of citizens who now give more than $10,000 per election to maybe about 400 the number of plutocrats necessary to buy the federal government."

The United States was a plutocracy by any definition since at least before Citizens United and it will remain only a more narrowly owned plutocracy after McCutcheon. Ian Millhiser correctly assesses that "this decision benefits no one except for a handful of very wealthy donors."

Only from the remote perspective of the .02% can McCutcheon be described as either an "existential threat" or "a ruling that could fundamentally reshape the political terrain in the 2014 elections and beyond." (NY Times). Except for the political class of parasites dependent on the plutocrat's corrupt system as portrayed in Mark Leibovich, This Town: Two Parties and a Funeral - Plus, Plenty of Valet Parking! - in America's Gilded Capital (2013) (and who no doubt constitute a share of his and the Times' readership), the other 99% has no dog in the fight between multi-millionaires who can afford to invest in politics every year more than the American median income and the billionaires who can now invest millions in directly buying parties and candidates without having to employ sleazy Rovean middlemen. The absurd idea that McCutcheon has "broad implications" because it only now ends an "era of effective limits" on political corruption can mislead one to an equally bizarre proposition as that the "progressive ... way forward" could consist of "[g]reatly raising contribution limits."

The reality is that the country has been living with increasingly systemic corruption since 1976.  Both parties quickly adapted to the new regime and a corresponding long term increase in inequality commenced that same year. The corruption has only accelerated and consolidated under a movement plutocrat Roberts Court since 2006. McCutcheon does not, as falsely alleged in the NY Times, "channel money away from the shadows and into the open." It adds a new larger channel for direct bribery to the existing indirect and darker channels already opened by the Court.  It is for the plutocrat to decide which channel best serves plutocratic interests.  There is no public interest involved.

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There was no corporation to blame in McCutcheon, which involved a rich Republican. Since the case solely presented the far more significant issue of contributions by shamelessly plutocratic individuals, the deceptive "corporate personhood" soundbite propagated by professional activists like "Move to Amend," and recited by those deceived by them, cannot apply to this case. The source of the problem starkly exposed by McCutcheon cannot be spun as a Gilded Age doctrine that was resolved by FDR justices during the New Deal era, but which nevertheless makes a catchily oxymoronic slogan for diversionary professional activist fundraising today.

Instead C.J. Roberts builds upon a new doctrine which, unlike the antiquated "corporate personhood" doctrine, actually was discussed in Citizens United, in dicta . This new doctrine imposes a narrow definition of the only type of "corruption" that the People are allowed to criminalize, according to the constitutionally unauthorized diktat of the Roberts 5. In a trademark Roberts trick that he similarly used in Shelby County (2013) to overturn the Voting Rights Act, the Chief Justice relies on the dicta planted in Citizens United as if it were already well-accepted precedent. This new rule invented by the Court from thin air, planted in Citizens United and now sprouted in McCutcheon, severely limits Congress' and hence the People's power to effectively protect election integrity or prevent political corruption.

Roberts asserts, without explaining, that the bare First Amendment concept of "freedom of speech" somehow limits any legal prohibition of political corruption solely to laws targeting specific acts of individual bribery. Roberts' new rule thus broadly legalizes the more common and now pervasive crime of influence peddling that does not involve the cruder, and easily circumvented quid pro quo agreement to sell specific policy. Roberts decrees that "a direct exchange of an official act for money" is the only kind of political corruption that Congress may regulate. Prior to Roberts and his plutocratic henchmen, no previous Court had questioned regulation of the less crude forms of "influence and access" corruption and honest services fraud as valid concerns for citizens of a democracy.

Professor Lessig has pointed out the hypocrisy of the opportunistically "originalist" jurists such as Scalia adopting such an artificially constricted definition of "corruption," when "there is "no good originalist reason to restrict the meaning of 'corruption' to quid pro quo corruption alone." The founders originally had a far more expansive understanding of corruption and of the essential role of democratic elections in controlling it than do the faux-originalist Roberts 5. The five plutocratic justices who claim to stand in the shoes of the founders when convenient for justifying their 18 th century views on social issues like race and gender, have turned the founders' most fundamental contribution to political thought on its head by reinstating the very tyranny by an aristocracy of wealth that the founders fought a revolution to overthrow, and wrote a Constitution to prevent.

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
 
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