- Government by the wealthy.
- A country or society governed in this way.
The big pigs and bigger pigs jostled each other at the trough Tuesday October 8 as the Supreme Court heard oral arguments in what has become its annual dismantling of campaign finance law. There is not much such law left to dismantle, so this contest concerns very few people: those who want to more effectively buy public policy for profit by spending on federal elections every two years more than double the U.S. median income.
This party of the pigs provides an occasion to take stock of what the Roberts Court has been doing the past seven years in service of plutocracy.
1. Big Bang Theory: A Philological Preface
A secret of anti-corruption specialists is that in a systemically corrupt political environment piecemeal, incremental, partial, “better than nothing” reforms are not. They make matters even worse. A Swedish scholar was curious about how his own country emerged from its era of extreme corruption to become the paragon of integrity and equality it is today, while others failed to do so. His research showed that cleaning up political corruption takes a comprehensive set of reforms that amount to a "big bang" rather than "incremental policies which ... are likely to worsen the problem and make corruption and similar practices more ingrained." Bo Rothstein, Anti-Corruption: A Big-Bang Theory (2009). Prof. Rothstein reasoned that systemically corrupt institutions, dominated by corrupt networks, typically demonstrate considerable skill in corrupting those very tactics and policies deployed to fight corruption in a less than systemic manner.
If the opinion of its citizens is to be believed, contemporary politics in the United States has produced just such systemically corrupt institutions. Only 28% of voters say they think that most members of Congress are not corrupt. The term "corrupt" has many meanings. With respect to the most narrowly specific meaning of political corruption, 60% think most members of Congress sell their vote, while 69% think members will "break the rules" for their contributors.
Bribery is the crudest way for money to influence politics. When the polling question is phrased more inclusively so as to reach the most quotidian form of corruption, that which the Supreme Court (pre-Roberts) defined as "undue influence on an officeholder's judgment," FEC v. Beaumont, 539 U.S. 146, 152-54 (2003), the answers show even broader agreement. The country universally (95%) understands that big money enters politics for the purpose of the large financial returns that it earns by controlling government, and 86% think this control is sold by politicians even when it violates the national interest. The public understands the economy of undue influence, which explains its almost universally low regard for Congress and the low consent of the governed generally.
To perpetuate this systemic form of corruption of the US government, it is only necessary to assure that any notion to reform it remains partial and incremental, commonly addressing just a few tiles of the larger mosaic and certainly not the whole ugly picture. Nevertheless partial reforms are useful for politicians who seek to maintain the appearance that there is some sort of system in place to deal with political corruption, while also conveying the impression that, due to its complexity, only specialists can actually understand that system.
This piecemeal approach to anti-corruption relies on its own specialist language for slicing and dicing into separate pieces the otherwise fairly straightforward objective of banning all private interest money from politics. The specialized verbal distinctions are designed to limit regulation to some pieces of the mosaic while keeping others off-limits. The Supreme Court has been the principle overseer of this fluctuating sorting process, assuring that some, actually since 2006 many, crucial pieces are omitted from anti-corruption laws. For example, in Citizens United the Roberts 5 majority reversed an earlier Supreme Court decision to hold that the Constitution prohibits Congress from being concerned about the "undue influence" kind of corruption. The Constitution, as the “5” newly discovered, only authorizes the prevention by legislatures of outright bribery and not ordinary influence peddling.
Many distinctions in this area of law seem technical and complex, enough even to intimidate lawyers who are not initiates in campaign finance law. The judge-made rules provide a "confusing and largely senseless background," in the words of Jeffrey Toobin, The Oath: The Obama White House and The Supreme Court (2012) 257. Justice Scalia, who as much as anyone has helped to make this law, confessed during oral argument in McCutcheon that “this campaign finance law is so intricate that I can't figure it out.”
The purpose of this preface is to define a few of these concepts to show they are not intimidating so much as they are themselves a large part of the problem. Just as there is no rational explanation -- other than to perpetuate the corrupt system -- for the Roberts 5 to discover in the Constitution, after more than two centuries, a prohibition on state and federal power to combat influence peddling, although that is the most common form of political corruption, these distinctions lack a rationale capable of withstanding close analysis. They were created to assure that corruption will continue under a superficially purposeful patina of regulatory complexity that is impenetrable by the wider public. This allows room for the political cover of occasional "little bang" reforms that "are likely to worsen the problem" rather than solve it. How both of the currently touted reforms, FENA (with its inherent mass media subsidy) and DISCLOSE (which facilitates otherwise illegal coordination between “independent” and candidate campaign expenditures) both fit this pattern is a subject for another day.
Any close analysis of the Supreme Court's nearly completed attack on campaign finance regulation must use this slicing and dicing terminology, no matter how fundamentally meaningless and deliberately obfuscating it may often be. To reduce the intimidation factor, the following short glossary of campaign finance terminology pairings is provided here for easing navigation of the article that follows.
- "Expenditures/contributions": makes a distinction between principal and agent. The contributor is the principal who gives money, and the agent is the one who receives and spends the contribution. Agents -- the candidate, the party and their respective committees -- have no practical limits on the boodle they can receive and their ensuing expenditures of it. But the principal is limited in the size of contributions that can be made to such agents.
- "Independent/coordinated": if the principal instead makes "expenditures" for issuing her, his or its own electioneering communications those "expenditures" that remain independent of the candidate's campaign (e.g. Super Pacs) are similarly unlimited, unless they are found to be coordinated with the campaign. Coordinated "expenditures" by principals are regulated as if they were "contributions."
- "Anti-distortion/bribery": Notwithstanding the Declaration of Independence and the equal protection clause of the 14th Amendment, the Roberts 5 forbid Congress from making any campaign finance law that suggests even a partial motive to make the "free speech" of citizens with respect to their elections more equal or, well, free. According to the Roberts 5, legislators must never seek to preventdistortion of voice caused by unequal access to the tools for amplification of political speech, and the resulting distortion of the policy it seeks. The Supreme Court has found somewhere in the words “freedom of speech” a prohibition of any law that would prevent those who can buy the biggest loudspeaker from drowning out everyone else. The Supreme Court found in the three words "freedom of speech" an intention by the founders, that would have surprised the founders. Their presumed intent to only permit Congress to regulate money in politics for the purpose of prohibiting bribery is shown by Professor Lawrence Lessig's amicus brief to be itself a gross distortion of the framers' understanding and concern about all forms of corruption. Somewhere in those three words the Roberts 5 seem to have also found an intention to appoint judges to be election commissioners, although other provisions of the Constitution (Art. I, 4&5) expressly gave the power "to judge" the manner of holding elections solely to legislators.
- "Base/aggregate": there are various financial limits on the size of each separate base "contribution" made by principals to various kinds of agents. There is also a secondary aggregate biennial limit on the sum total of those base "contributions," which is less than the sum of its parts. Aggregatelimits constitute the latest front for the Supreme Court's annual offensive against the power of legislatures to maintain election integrity. This is the issue involved in the Supreme Court's 2013 campaign finance pinata party.
2. The Newsbite
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). This case was a failed attempt to have the Supreme Court bring down the whole teetering house of what is left of campaign finance regulation. The appellate court's decision in Danielczyk reconfirmed that corporations cannot make direct contributions to candidates. There are at least three indirect ways corporations can legally spend money to get candidates elected: “independent” expenditures, “issue” ads, or PAC spending The Circuit Court's reversal of the district court's decision to allow a fourth means sustained the distinction made in Buckley v. Valeo (1976) between independentelectioneering expenditures – which Citizens United emphasized could not be restricted whether made by corporations or any other source – and thecontributions 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 Buckley v. Valeo's approval of limits on contributions.
On Tuesday, October 8, 2013, the Supreme Court heard oral arguments in that case, McCutcheon v. Federal Election Commission, which the Court agreed to review on February 19. This decision upheld federal election law that restricts aggregate electioneering contributions. The decision was made by an ad hoc three-judge district court convened especially for constitutional challenges under BCRA (McCain-Feingold). With this case 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.
3. 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 reward for Roberts' masterminding the litigation that led to installing the electorally defeated G.W. Bush to the presidency by judicial decree in Bush v Gore, 531 U.S. 98 (2000). When Bush, soon after appointing Roberts, 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. They are a much more virulent strain of reactionary than the Court that FDR sought to “pack.”
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 right. The 17 votes for plutocracy might have been the most fateful decision these feckless Democrats will have made in their corrupt careers in politics.
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 and legalization of money in politics. Combined with Congress' supine response to them, these decisions have at least jeopardized if not terminated democratic governance on any issues of money and the power of plutocrats to make and keep it. The Roberts 5 have made money sovereign while marginalizing the consent that only the governed voters are supposed to give their representatives, according to the Declaration of Independence. 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.
4. The Plutocratic Playbook
Before 2010's notorious Citizens United stirred up public attention to the Roberts 5 plutocracy project, the 5 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 and others 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, while also implicitly undercutting effective public financing of elections. Davis v. FEC (2008).
Immediately after the 2008 presidential election seemed to threaten a new direction for 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 with some corporate money the pay-per-view broadcast of a non-profit's anti-Hillary Clinton video, which was arguably an extended "issue ad," was expanded in scope by the Court for reargument after hearing oral arguments 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 legislative ruling beyond the narrow facts of the case but still in time to influence the 2010 elections. The brief filibuster-proof Senate Democratic majority, which lasted only until a Republican upset took over the remaining term for Ted Kennedy's seat on February 4, 2010, threatened the possibility of appointments that could change the current Court's 5-4 balance in favor of plutocracy. The ultimate decision in Citizens United 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, although elections were already awash in money before the Court allowed corporations this fuller participation in the game of influence peddling.
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, all contexts, and without specific definition of the term, that any money capable of being labeled "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption;"
- confining of legislative power over political corruption solely to the prevention of bribery and not to influence peddling, or “undue influence;”
- instruction to Congress that the Constitution does not permit it to foster equality ("anti- distortion") in its regulation of elections; and
- blatant violation of the constitutional separation of judicial from legislative powers that the Court's decision of these essentially political questions involves.
The next year, 2011, the Court, without much fanfare, fulfilled the promise of Davis by gutting Arizona's exemplary public funding initiative, thereby preventing the public from matching plutocrats' electioneering expenditures dollar for dollar. Arizona Free Enterprise Club (2011) accords a plutocrat-supported candidate the confidence of outspending the amount fixed for a publicly funded candidate. Exceeding what a challenger spends by about 2-300% buys an incumbent more than 90% chance of victory.
In 2012, again without much public attention, the Roberts 5, in American Tradition Partnership v. Bullock, 567 U. S. _ (2012), suppressed the prairie rebellion threatened by the Montana Supreme Court's refusal to apply Citizens United for corrupting state elections. This "very important sequel to Citizens United," which would have allowed states and local governments to opt out of the system of corruption mandated by the Court for federal elections, was egregiously mishandled by Montana's then Attorney General Steve Bullock. AG Bullock violated his oath of office to uphold the Constitution, Art. VI, cl. 3, if not also legal ethics, by adamantly refusing to raise Montana's constitutional state's rights defenses. His office refused to give any credible explanation for sacrificing what even he seemed to admit was the state's most effective argument for defending its challenged law. The Court therefore reached the expected conclusion, in the absence of an assertion by Montana of the available distinctive state issue to support its Supreme Court's decision, that there was no constitutionally relevant difference between Montana's anti-corruption law and the similar federal law overthrown in Citizens United. Justice Breyer's dissent on behalf of four justices who voted against review on the merits of the Montana Supreme Court's decision proved that securing the vote of just one of the Roberts 5, at least four of whom had each in other less compelling contexts applied state sovereign immunity to protect a state from Supreme Court jurisdiction over such suits, could have won the day for Montana -- and for democracy.
Montana's unclaimed right not to be hauled into any federal tribunal to defend a suit that strikes at the heart of its own sovereignty -- which the Montana Supreme Court plainly showed to have been protected for a century by Montana's now federally-invalidated 1912 anti-corruption law -- possessed the potential to place a Montana Rockies sized constitutional obstacle in the way of the Roberts 5's further corruption of state elections. But AG Bullock's incompetent handling of the state's venerable constitutional defense to any federal court interference in its sovereign elections allowed the Roberts 5 to make a molehill out of the case by summarily reversing the courageous Montana Supreme Court decision, without even according Montana the sovereign dignity of a plenary hearing at which AG Bullock might have corrected his litigation error. This quick disposal of the case cut off that opportunity and dampened public knowledge of its important anti-state's rights decision.
This episode may be emblematic of the conflict of interest faced by any politician successful in the corrupt system who purports to oppose money in politics. It also shows the futility of relying on politicians to fix the problem of their own systemic corrupt campaign practices.
5. The 2013 Agenda
These six cases left very few further obstacles to plutocrats' profiting from investments in all levels of government. The only remaining limits on domestic money in politics now concern direct contributions to politicians and parties. In McCutcheon an individual contributor and unincorporated association, and inDanielczyk an indicted corporate contributor, challenged these limits.
There is a temptation, not resisted by even the better of the analysesof the McCutcheon case, to say that in deciding McCutcheon the Court "could open the door to even more money in politics than it did in the disastrous ... Citizens United v FEC." But such hyperbole is overstated. To any close observer, the door was already opening wide even before Citizens United. For example, one anti-democracy scholar approvingly wrote, based on the above little-noted Roberts 5 decisions made prior to Citizens United : "the game of reform ... is over." Richard Esenberg, The Lonely Death of Public Campaign Financing, 33 Harvard Journal of Law & Public Policy 283, 289 (2010). A pro-democracy student law review article similarly demonstrated that "the Court's intention to liberalize expenditure laws should have been abundantly clear by 2008." Note, Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance,124 Harv. L. Rev. 1528, 1539 (2011).
Thus 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. McCutcheon will almost certainly prove to be the Court's seventh case in as many years striking down such a law, while sustaining only one that enforced the prohibition on foreign contributors. Bluman v. FEC , 800 F. Supp. 2d 281 (D.D.C. 2011) sum. aff'd __US__ (Jan 9, 2012). This doctrinally inconsistent case defended the Court from the narrow political attack President Obama had made in 2010. Therefore, a s politically-motivated decision, the Court ducks out of giving a single word of explanation how foreign contributors may be prohibited under its Citizens United theory that held a speaker's identity to be constitutionally irrelevant.
By overturning aggregate limits in McCutcheon he Supreme Court will provide a small number of domestic “super-affluent” political investors an additional tool to more efficiently assert influence over public policy than they already enjoy by using Super Pacs, 527's, and other already lawful means that they now share with merely affluent plutocrats. This will reduce from the fewer than .02% of citizens who now give more than $10,000 per election to maybe about 400 plutocrats the numbers necessary to buy the federal government directly, rather than merely indirectly by financing purportedly "independent" electioneering and "issue" ads, according to very loose definitions that are not enforced in any event.
Overturning the FECA limits on total aggregate contributions to candidates, parties and their committees as requested in McCutcheon would increase from$123,000 to over $3.6 million the amount a single plutocrat may contribute in the current two year federal election cycle. Funding Super Pacs is not as direct, and in 2012 was not as effective. This was partly because candidates get better rates for broadcast ads, and partly because Republican profligacy induced by their indigestible surfeit of resources saw, for one example, Romney's top consultants paid an exorbitant $134 million while Obama's received $6 million. Meanwhile some predator PACs cashed in.
Though the high-flying new Super Pacs gave independent expenditures a bad rap in 2012, it has often been observed that, when at least 75-85% of political money goes to the broadcast media, it hardly matters who writes the check. The Federal Election Commission (FEC) has adduced extensive evidence about the highly effective corrupting influence of independent expenditures. In the case of negative advertising, which is the bulk of independent spending, it can be even more effective to leave the candidate's fingerprints off these ads which at the same time both offend and persuade. Meanwhile the "optics" of cutting out middleman Super Pacs and abandoning 527 anonymity may heighten the embarrassment factor for some, though also the ego factor for others. So the additional importance to plutocrats of having the flexibility to contribute directly to candidates and parties should not be exaggerated.
Harvard Prof. Noah Feldman, writing for Bloomberg, gave the effect of McCutcheon a positive spin by claiming it would give mega-millionaires the chance to compete with the billionaires who now fund Super Pacs. Actually the reverse is more true. Billionaires who do not want to go through the likes of Karl Rove to broker an election, or simply wish to hedge their bets through a direct purchase of a candidate, or actually a governing party, along with their "independent" Super PAC spending, will be able, after the likely McCutcheon decision, to more cost-effectively buy a majority of Congress directly on issues that concern their own financial interests, just as plutocrats did in the first Gilded Age, when they commonly bought elections for candidates who had served as their own corporate lawyers.
In some future history about the end of the republic and rise of the neo-feudal and imperial aristocracy that is now replacing it, the McCutcheon decision will help mark a transition point when, as in feudal times, the royalty would gain supremacy over the lesser nobility. This is the point where Dukes eliminate the Barons. It cannot be said how this actually affects the rest of us plebs, who have been for some time mere spectators at the funeral of democracy. By 2008, at the very latest, the 99% were already completely dealt out of the money game that, beginning legally in 1976, had both caused the decline of democracy and deterioration of that decline's most reliable indicator -- growing economic inequality. Nobel economist Joseph Stiglitz and others argue that descent into extreme inequality of income and wealth harms the economy at the same time it distorts politics. Qui bono is the best guide to who's buying policy. Since 2008 it appears that the top 1% have been taking all the income gains plus .4% of what the 99% used to earn. These inequality statistics suggest that it is no longer just the 90% but now closer to the 99% who are effectively disenfranchised.
The average incumbent representative raises $1,732,000 for a 91.2% chance of re-election while a Senate incumbent raises $7.02 million for a 95.2% chance. So a majority of incumbent representatives can be bought for roughly $400 million per Session, and roughly the same amount would buy the 60 incumbent Senators needed to enact legislation for six years' service, or under $200 million per biennial Session of Congress. For about the same total it costs to buy Congress you can buy about half a President. If there are, say, 100 key issues per year on which influence peddling of public policy can deliver the average return on investment (which can be conservatively estimated at around 40,000%), then the principle players in this business model would all gain by retailing these policies biennially to 170 or so individual plutocrats at $3.6 million a pop. This would avoid the current quasi-public messiness of candidates involved in raising money and making non-indictable sales of public policy to more than 30 fold that number of mostly lesser nobility, who themselves face the additional cost of coordinating their potentially conflicting demands among themselves through trade associations, their lobbyists and other reptilian forms of the Rovian school.
A good example of this phenomenon is the federal too big to fail (TBTF) implicit federal bailout guarantee subsidy that allows Wall Street to out-compete Main Street banks. The smaller banks may have proven themselves to be better bankers than the TBTF bankers. But they lack sufficient coordinated clout to play the corruption game as effectively. So the TBTF's have been on the ascendant since the beginning of the era of money in politics.
Though there will always be smaller players for policies involving lower stakes and returns, and those who will bundle those interests, this requires expensive overhead for 527's, PACs and political parties, lobbyists, other beltway bandits and brokers, demand on a member's valuable shakedown time, and a funded business plan to profit from corrupted policy. The purchase could, at least metaphorically, be made with considerably fewer transaction costs by the major players convening more comfortably and discreetly in an exclusive large room. Basically, cutting out the political class of middle-persons that serve only to put lipstick on this corrupt pig of a political system can save plutocrats money.
The absence of controls on money in politics inexorably shifts power to the richest due to economies of scale in political corruption. Indeed in the near future, after a very few additional adjustments in election integrity laws by the Supreme Court, all in the name of "free speech," this core faction of less than half the 425 US billionaires might even be whittled down to a plutocratic junta of mega-billionaires like the Koch, Walton and Marrs families, who could fit around a secluded conference table. This pretty much describes the great trusts owned by the robber barons of the first Gilded Age. But now that both Progressive and New Deal era reforms have been eradicated, there is really no factor on the horizon standing in the way of imagining, like Sheldon Adelsonapparently does, a single Crassus ultimately financing a Caesar by arranging to purchase government through a "single payer" system that a majority of Americans originally expected for delivering their health care, before money in politics waylaid that popular policy.
The potential returns on owning the government of the United States are so great, why should not competition for maximizing those returns result in a single winner who can pay the full going price to take it all? The exploitation of its various policy components can be efficiently subcontracted, much like feudal kings, for a price, subcontracted to the nobility the control of feudal estates in land – which were the politically-generated asset of that era. As the Court's further campaign finance jurisprudence unfolds, this is now the most relevant question. For the Roberts 5 will eventually address the question that the Court left open by denying certiorari in Danielczyk .
This question could be answered as early as the Court's decision in McCutcheon, due to the way its managers, the parties and the Court below, designed the case. Now that the Roberts 5 has mostly completed the doctrinal scaffolding that assures government at all levels can be freely bought, the Court may argue, in effect, that it really makes little difference anymore how the elections are bought, as a rationale for denying constitutional significance to Buckley's distinction between indirect contributions spent for or against candidates ("independent expenditures") and direct contributions to them. It is true that the complex regulations that remain have negligible impact on the systemic corruption of U.S. politics, while they do present barriers to entry to the business of political corruption that the Roberts 5 maintain to be constitutionally mandated. Indeed Justice Scalia at oral argument made both of these points. As mentioned above, he complained that “campaign finance law is so intricate that [he] can't figure it out” and “if gratitude is corruption ... don't those independent expenditures evoke gratitude? … It's not that we're stopping people from spending big money on politics.” Making the point that the independent groups have an advantage over parties he completes the argument for striking down all controls on money in politics: “I'm not sure that that's a benefit to our political system.”
Justice Scalia's argument is a double-edged sword which could also justify the Court withdrawing its dysfunctional ruling freeing all independent expenditures from regulation under the factually unsupported theory that they do not corrupt. However when Justice Kagan said “if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law,” it was treated as a laugh line. The Solicitor General more cautiously said “I'm not here to debate the question of whether the Court's jurisprudence is correct with respect to the risks of corruption from independent expenditures.” Justice Kennedy tried to push the General into a concession that the question is “settled” and “that's the law,” just because the Court once said it was. But the General preserved his ground when he responded to Justice Kagan's laugh line with one of his own: “far be it from me to suggest that you don't [change the law], Your Honor.”
Overruling the more democratic half of Buckley would be couched in terms of freeing "speech" (i.e. money), so voters may hear what plutocrats have to sell them without restriction or relief, excepting only those plutocrats so inept as to be caught and prosecuted for quid pro quo bribery. Such a decision will require ignoring, as the Roberts 5 do so well, that money in politics necessarily makes ordinary voting useless for influencing policy which research shows to be determined solely according to the wishes of the class which gives money. Eliminating all regulation of money in politics could be labeled the "royalist" option since it inherently limits success in the corruption game to those who can invest the very largest sums. That was the ruling sought in Danielczyk which might still be delivered by McCutcheon.
Justices Thomas, Kennedy and Scalia have consistently supported this position, as pointed out by the Danielczyk Petition for a Writ of Certiorari, at 34. It is difficult to imagine that Justice Alito would not agree. Indeed either he or Justice Roberts, or likely both, must already agree with the elimination of aggregate contribution limits, since at least 4 votes were necessary for the certiorari decision to review McCutcheon. There is no conflict between theMcCutcheon district court's decision and any circuit court decision, while the factual record is very poorly developed. Four judges would only choose to hear McCutcheon in order to begin, if not to complete, its demolition of limits on contributions in a case well-designed for the purpose of Supreme Court reversal.
The Court normally reverses about 2/3ds of the cases it takes. But since the Robert's Court's special mission in American history seems to be to corrupt its elections beyond redemption, thereby heralding in the second Gilded Age with a Supreme Court membership to match, the probability would have to be assessed as approaching virtual certainty, in this particular case, that the Court will either abandon the aggregate limits on contributions or go the whole way to the "royalist" option of invalidating any limits on contributions whatsoever, just as it has on expenditures. This policy even has the support of one of America's foremost election law scholars.
In a dramatic gesture the chief matador of corruption, Senator Mitch McConnell himself has entered the ring to place the sword neatly into the neck of an exhausted democracy. Senator Mitch McConnell has asked the Court to “revisit the bifurcated standard of review for political contribution and expenditure limits and hold that strict scrutiny applies to both.” This is legalese for striking down all limits on direct contributions to politicians. In a rare theatrical gesture, reminiscent of Republican Senator Lyman Trumbull stepping outside the Senate to save Reconstruction in Ex parte McCardle (1869), Senator McConnell has asked for and been given permission to argue this point before the Court , which he did symbolically through his lawyer.
6. Political Caution?
Harvard's Prof. Feldman opined that the Supreme Court is "[f]aced with this dilemma of following principle and being condemned as political, or acting out of political caution and being ridiculed as hypocrites." But if McCutcheon is to be described as facing the Court with a "dilemma" it is one that at least four of the justices created themselves, and were only too eager to embrace. Each of the four could have obviated any such "dilemma" by simply voting in accordance with the Court's prudential rules to deny certiorari, and leave the law undisturbed. So it is clear that at least these four are not troubled in the least by counsels of "political caution" that Prof. Feldman thinks might prevail to sustain the lower court's decision.
There is, in fact, little reason why they should be concerned. There is no significant public attention to the crafting of effective strategy -- let alone any effective political action pursuant to such a strategy -- aimed at reining in the Roberts 5's authority to remake election integrity law according to their own political lights. This has undoubtedly instilled confidence in four if not all the Roberts 5. The Roberts 5 embark on their annual ideological foray as super-legislators against any, even if now mostly symbolic, constraints on plutocracy, notwithstanding overwhelmingly adverse public opinion on the issue itself.
The strategy vacuum for mobilizing that public opinion has attracted professional activists who advance the counterproductive and futile approach of a constitutional amendment -- which only serves to deflect attention from the culprits: five plutocratic justices. Seeking an amendment blames their victim, the Constitution. Even worse is the most misguided version of an amendment which invokes the antiquated but marketably oxymoronic "corporate personhood" concept. While actually playing no role in any of the Roberts 5's campaign finance decisions, this soundbite has been popularized since Citizens United as if it did.
The Roberts 5 are thus aware that their jurisprudence of plutocracy has to date met with feeble, uninformed, misguided, even counter-productive opposition, mostly sending would-be opponents on the extended fool's errand of seeking various poorly-drafted constitutional amendments, primarily by signing petitions and sending money to the activists who misguide them. Any of these amendments to date could serve to even further empower the Roberts 5, that is, provided one could be proposed by 2/3 of Congress and ratified by 3/4 of the states -- which would otherwise be all but impossible. Senator Fritz Hollings could not get such an amendment through just the Senate alone, after he tried to do so in eight successive less corrupted sessions of Congress from 1989 to 2003, when public sentiment was sufficient to obtain the McCain-Feingold (BCRA) legislation from Congress.
The Roberts 5 surely know what Yale constitutional scholar Prof. Bruce Ackerman - probably the foremost student of movements for constitutional change - teaches as common knowledge, as he puts it, among "[e]very constitutional movement ... that Article Five [constitutional amendment or convention] is a road to nowhere, and that it should concentrate its energies on the creation of landmark statutes and judicial super precedents." 103 Nw. L. Rev. 63, 129-30 (2009).
With opponents who lack even such common knowledge of how to make fundamental change, and with politicians already systemically corrupted by their jurisprudence of plutocracy, the 5 justifiably feel no effective political constraint on their ability to continue their annual assault on election integrity until that jurisprudence is complete. They must instead be encouraged by what they see of the opposition. Overturning yet another campaign finance law now almost looks more like an end-zone spike for the Roberts 5, than meaningful change in the law. Even if this exercise puts no significant new points on the board for plutocrats, it celebrates the absence of an FDR to call out and fight the "economic royalists" and to threaten to pack their court. Nor is there a counterpart of the masterfully strategic abolitionist, women's suffrage or civil rights movements, or other progressive era single issue movements, to stop their celebration of the complete triumph of plutocracy. McCutcheon can be seen as their victory lap, consisting of one further unimpeded encroachment on legislative power over the subject of election integrity.
It will likely be up to Chief Justice Roberts again, as it was in last year's Obamacare mandate case, National Federation of Independent Business v. Sibelius, to decide which decision 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 display in last year's Montana casewhere they actually supported the plutocrat's position of seeking Supreme Court review for the case. Prolonging the case would marginally increase fundraising possibilities, so the purveyors of bad strategy actually opposed a victory in the Montana case.
Accordingly, Chief Justice Roberts may well choose to join the rest of his democracy destruction crew in going all the way to the Mitch McConnell royalist option. The 5 may 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 remote chance that Roberts might be more attentive to institutional concerns and, realizing that McCutcheon will have little impact on the systemic plutocratic control of national politics, do anotherSebelius 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 apparently custom-designed for the Supreme Court 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., the Thurgood Marshall of new Gilded Age enfranchisement of the plutocrat minority. Bopp 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 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 understates the effect of overthrowing the contribution limits for purposes of any propaganda campaign around the case. This strategy was used in Citizens United in which the publicized facts about the case were far less significant than the extremely 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 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. The A-Team knows how to feed a 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 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). Speechnow.org authorized unlimited contributions to Super Pacs, which by 2012 triggered the greatest excesses of money in politicssince the first Gilded Age. Sentelle knew how, with Bopp's assistance, to guide through the lower courts a case that would 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 leadEscutcheon’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 the plaintiffs needed to lose in order to get into the Supreme Court. Appointing two Democrats guaranteed that outcome.
To control how the opinion was written Judge Brown had to vote with the majority, which for a "consummate Ayn Randian," Locker-era property rights libertarian, must have created some cognitive dissonance for her. It might have eased her conscience that by putting this "moderate" decision on her resume on September 28, 2012 while also advancing the cause, she may have been grooming her credentials as a potential replacement for Justice Clarence Thomas in the event a Republican should reach the White House.
By joining the majority Judge Brown 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 reflecting, 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 arguably far more damaging than Citizens United. 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 at least as technical as the Arizona and Montana cases, and so no more easily reducible to misleading soundbite treatment for activist fundraising, such as the “corporate personhood” slogan.
As a suit brought by an individual and an unincorporated association, and not by a corporation, McCutcheon has nothing to do with Citizens Unit ed’salleged 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 Citizen's United -- that there can be no limits on independent 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 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 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 effect of restricting expenditures, which were held at the original scene of the crime in Buckley to be identical to speech.
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 legitimating all contributions.
Judge Brown again flags the possibility of overturning Buckley 's contribution/expenditure distinction 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-quot 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.
This formulation, which 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 form of influence peddling that might imply 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. Again, a clarification of the legislature's permissible (i.e. "cognizable") interest by the Supreme Court would justify the royalist option by rejecting 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" because "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 the legislature's permissible scope of regulatory power solely to ineffective bribery laws.
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 easily revised pleading strategy. Determining whether the aggregate limits fall, may entail a re-inspection of whether the assumption must 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. Escutcheon’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.
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. 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 his contributions, the beneficiary politicians' "representative obligations" to the 99.9% of their constituents who give them no such noticeable, if any, contributions. Judge Brown declared in response to this investigated 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 BS to incorporate into the fictional picture of political corruption that they have been drawing 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, 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, Speechnow.org, and accepted by the trial court, positing that a plutocrat would 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."
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 law clerk for Chief Justice Roberts in 2008-09 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). Roberts had relied heavily on the Court's 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.”
The alternative defense of aggregate limits is that they prevent circumvention 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 occur, without prohibited ear-marking, to indirectly deliver excessive funds from one principal source into the pocket of a particular candidate.
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 base rulings on those facts to determine whether Congress has acted reasonably to achieve a legitimate purpose. Justice Scalia defended the Bopp/Sentelle/Brown “test case” facial attack strategy specially designed for judicial legislation, by saying “we don't normally require a record to decide questions of law.” It requires a record to decide the specific facts of actual Article III cases by applying known principles of law to them. But it requires no record for the Court to usurp legislative authority to rewrite the law.
The attorney picked up on Scalia's comment to propose the legislative trick Roberts had recently used to overturn the Voting Right Act, claiming 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. This opinion could be independent of any facts in the case if undertaken as a “facial” attack on the law. Alito and Roberts seemed to like the approach of requiring a better legislative means to prevent the circumvention of the base limits in a way that would still allow a political investor to give the $3.6 million per election cycle. Roberts had taken this same 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 in an election law case. Roberts' decision in Shelby County v. Holder (June, 2013), the Voting Rights Act case, ranks right up there in the same league with Dred Scott and Plessy as examples of judicial supremacy, blatantly deployed to usurp legislative powers to protect fundamental democratic rights.
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?”
In response to Senator McConnell's attack on any limits on contributions, Justice Ginsburg responded that the limits “promote democratic participation” so that “the little people will count some, and you won't have the super-affluent as the speakers that will control the elections.” Of course the “little people” are persons who can now spend more than the U.S. median income on buying politicians every year. So what is meant by that phrase is actually the “little” plutocrats, the Barons, as distinguished from the “super-affluent” plutocrats, the Dukes, which is what the case is all about. But Justice Ginsburg's argument is too close to the prohibited anti-distortion argument to gain traction with the Roberts 5.
When asked whether there is no “special influence that goes along with” a Majority Leader's solicitation of $3.6 million for “all the party members,” Senator McConnell's attorney replied that under “the Citizens United decision ... gratitude and influence are not considered to be quid pro quo corruption.” This argument proves to be at the very heart of the the case.
The government's lawyer, Solicitor General Donald Verrilli, who has been criticized for his handling of other big cases, made a very useful paradigm shift away from the one about how a single politician could get enough money by indirect means to raise the risk of quid pro quo corruption. Justice Alito pursued this question. Verrilli chose instead to inform the justices how the real world of the systemic corruption of money in politics actually works today. He argued that “any candidate who sets up a joint fundraising committee, says give to me and give to the rest of my team” and can receive obligatingly large funds from a single person that flows through to others on the team needed to fulfill the obligation. Thus the aggregate limits actually do prevent quid pro quo corruption because parties these days are essentially cartels, or teams, contesting for control of Congress which in necessary to heighten their value as policy salespersons. For example, when selected House Speaker, Boehner was most famous for distributing tobacco industry money right on the floor of the House. This symbolizes what defines leadership today.
Verrilli describes how “the party leaders are often going to be the ones who solicit those contributions, and … their authority depends on the party retaining or gaining a majority in the legislature.“ Since “every candidate is going to get a slice of the money and every candidate is going to know that this person who wrote the multimillion dollar check has helped not only the candidate, but the whole team ... that creates a particular sense of indebtedness.“ Verrilli did not explain that the congressional party leader, whose job it is to see that his team stays in the majority, or the committee chair, has very substantial favors to dispense in the nature of committee assignments and chairs, and legislative support, as well as money, that can be used to discipline any team-member who fails to manifest the same gratitude that the party leader feels. But Verrilli does go on to explain that “every officeholder in the party is likely to be leaned on by the party leadership to deliver legislation to the people who are buttering their bread.” Indeed the reality is that each individual incumbent who is not also a fund-raiser for the party loses party support. Eric S. Heberlig and Bruce A. Larson, Congressional Parties, Institutional Ambition, and the Financing of Majority Control (2012) (Fundraising for the party has rapidly replaced more traditional criteria for advancement and other rewards in Congress). Meanwhile “advancing [members'] individual goals required their party to hold the majority” for which “cornering the political money market is essential.” Id. 12, 248.
Alito responded by taking this analysis focusing on party fundraising to mean that there is no problem connected with circumvention of base contribution limitations by means of indirect channeling of large contributions to an individual politician. He considered the problem to be the party organization, when actually it is individual incumbents who are doing the fundraising for the party, which then distributes large amounts among its members as necessary to retain majority status and delivers legislative favors in return. Though it is not actually either/or, Alito nevertheless proposed“these aggregate limits might not all stand or fall together.” He thus suggests that possibly the aggregate limits would be struck down only as to individuals, but remain in place for parties.
Breyer tried to rescue Verrilli at this point by tossing him the Article III problem – there was no record on circumvention techniques upon which a judicial decision could be factually supported. General Verrilli did not give Breyer and Ginsburg much help on the Article III issue, other than referring them to the extensive record compiled for the first facial attack on BCRA, in the McConnellcase. It is difficult to second guess why Verrilli shrugged off this issue, but it could be that he knows that the Roberts 5 have been legislating routinely in violation of the separation of powers, and that although this violates the Court's own prudential rules, it is really up to Congress to make sure those rules are enforced if 5 justices are going to deliberately refuse to do so.
Congress has shown no inclination to defend its legislative powers from judicial usurpation with the constitutional tools it has at hand. Only the dissenting minority has consistently objected to the Court's exceeding of its judicial powers in cases like Bush v Gore, Citizens United, and Shelby County. So it has been a losing argument. Verrilli may have chosen to take a pass on the separation of powers issue between Congress and the Court because the executive branch has no dog in that fight. It is unfortunate that it does not, because every great President from Jefferson and Jackson to Lincoln and the two Roosevelts has fought this battle against judicial usurpation of powers, and either taken or proposed action to stop it. It has been a cause of political failure through much of American history, as it is today. But Verrilli's boss is Barack Obama. So he took a pass on the separation of powers issue, likely in order to focus on what he saw as his potentially winning anti-corruption argument, premised on accepting the Court's own framework of analysis. That framework is legislative not judicial. Hence as one astute commentator observed, the oral argument itself “sounded as if it were a debate that one might hear in Congress on potential new campaign finance legislation, rather than a courtroom debate over the limits of the First Amendment as applied to campaign contributions.”
At this point Scalia returned to his proposition that there is a lot of money spent legally in elections not just from judicially protected independent expenditures, but from parties and PACS and even “newspapers that spend a lot of money in endorsing candidates and promoting their candidacy.... That is money that is directed to political speech.” To impose an aggregate limit only on parties, according to Scalia, is “to sap the vitality of political parties and to encourage … drive-by PACs for each election.” Scalia then provides an opening for a reality check when he claims that “when you add all that up, I don't think 3.5 million is a heck of a lot of money.”
Verrilli responds that “a party's got to get $1.5 billion together to run a congressional campaign, parties and candidates together, and you've got a maximum of $3.6 million, that is about 450 people you need to round up.” The math actually makes it closer to about 420. He continues, without “the aggregate limits ... there is a very real risk that ... the government will be run of, by, and for those” few political investors. The Solicitor General in this way re-frames the issue near the close of his argument: “the risk of corruption is real. And we think it's in fact profound when you are talking about ... tak[ing] the lid off on aggregate contributions.” With this argument the government identifies further concentration of plutocracy itself with corruption. This left the unstated question to be decided: Will the Supreme Court once again act as a super-legislature for the super-affluent by clearing away the remaining legal obstacle to this consolidation of “royal” power over the former republic? Or will the Roberts 5 recoil from the corrupt plutocracy they have helped to build?
There is little doubt that the Roberts 5 will continue its demolition of election integrity in McCutcheon, a case expertly designed for that purpose. The question is how far it will go. As the Roberts 5 remove, either in McCutcheon or in a later case, the final bricks from the demolished and now very low and permeable legislative wall guarding elections and politicians from corruption, it is clearly past time for any who are suffering in one of many ways from, or who may even merely regret, the passing of democracy in America to take action. Such action will be useless if not seriously and intelligently focused on effective strategy to strip the Roberts 5 of jurisdiction, whether to overturn influence peddling prohibitions of any kind or to otherwise usurp legislative powers to act as "the Judge of the Elections," a power which was entrusted to Congress, and not the Roberts 5 by the Constitution, Art. I, Sec. 5, cl. 1.