American Justice 2014. Garrett Epps
“Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Justice Kennedy wrote for the majority. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
But Citizens United was simply one major battle in the conservative legal movement’s long war against any limitations on money in politics. The court had specifically refused to discuss a different issue: whether direct contributions—where an individual or corporation puts a check into the outstretched hand of a political candidate—can be limited because of the interest in preventing corruption. Thus the stage was set for McCutcheon.
The specific issue in McCutcheon was whether Congress could enact “aggregate contribution limits” on political donors. Since the reforms of the 1970s, individuals may contribute to campaigns and party committees but only in limited amounts. (Direct contributions by corporations are forbidden, for now.) McCain-Feingold limited individual donors in how much they can give to individual candidates or party committees. These limits, called “base limits,” were not at issue in McCutcheon. But the act also limited the “aggregate amount” any one donor could give to all federal candidates and committees in a given election cycle—a total of $48,600 to individual candidates and $74,600 to committees.
Shaun McCutcheon, an Alabama businessman, wanted to give more than that—he was maxed out on his aggregate limit but wanted to give contributions patriotically denominated $1,776 each to a total of a dozen more candidates during the 2014 cycle. He brought suit, alleging that the aggregate limits burdened his First Amendment rights.
Four justices of the court (Roberts plus Antonin Scalia, Anthony Kennedy, and Samuel Alito) agreed that the aggregate limits violated McCutcheon’s rights; Clarence Thomas provided the fifth vote for McCutcheon but wrote separately to suggest that both base and aggregate limits are unconstitutional.
John Roberts wrote the opinion. It combines the best and worst of his judicial style. The prose is self-assured and clear. The legal conclusions are more debatable; the disregard for precedent is not. Roberts first brushed aside the court’s first major campaign finance-reform case, Buckley v. Valeo (1976). That case held that “aggregate limits” were justified by the possibility that wily donors would use multiple contributions to “circumvent” the limits on direct contributions. That part of the Buckley opinion, he wrote, was only “a total of three sentences”—hardly worth noticing, really. He didn’t overrule it; he made it disappear.
Without the Buckley precedent, Roberts then weighed the government interests at stake in the aggregate limits and found them, in essence, nonexistent. Congress, Roberts repeated, cannot seek to “‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’” Thus, he said, its only legitimate reason for regulating campaign finance is “preventing corruption or the appearance of corruption.”
Roberts, however, defined “corruption” only as what lawyers call “quid pro quo” (“this for that”) corruption. That requires a bargain like, “I will give you $200,000 to vote for my subsidy.” Roberts did not deny that the objects of McCutcheon’s bounty were likely to feel grateful to him and to desire to please him while in office. This took the analysis back to Citizens United. In that case, the Court had noted that candidates who benefited from corporate “independent expenditures” might feel grateful to the corporations that made them. Once in office, they might even give those corporations special access. So what? “Ingratiation and access . . . are not corruption,” Kennedy had written for the majority. Now Roberts applied the same logic to direct contributions. True, a candidate would feel grateful to McCutcheon and might be eager to please him, might give him special access, might consult him in preference to others who had not contributed. What’s your point? asked Roberts in his opinion. That’s not corruption; it’s democracy at work.
“There is no right more basic in our democracy than the right to participate in electing our political leaders,” Roberts began. “Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”
McCutcheon, then, was seeking only his due as a citizen—the right to take part in politics. Aggregate limits discriminated against him by limiting the number of candidates he could support. Here is the heart of the opinion and perhaps of John Roberts’s view of democracy:
The individual may give up to $5,200 each to nine candidates, but the aggregate limits constitute an outright ban on further contributions to any other candidate. . . . At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance. . . . It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.
As a matter of logic, this conclusion is demonstrably false. The limits do not require a donor “to contribute at lower levels than others”; they mean that, no matter how rich a donor may be, he or she can give no more than any other citizen. But Roberts meant something different: the donor limits meant that McCutcheon would be at a disadvantage among the other wealthy donors to a specific candidate. Some would be able to give the full amount, while McCutcheon would give less because he wanted to support more candidates.
This reasoning reflects a world in which giving money is the equivalent of voting and discrimination among those with money to give is the equivalent of—indeed, perhaps worse than—discriminating among voters. Consider the plight of Sean McCutcheon once he had given the maximum amount. He could volunteer for a candidate, Roberts wrote, but “personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes.” Beyond that, “other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening.”
The McCutcheons of the world, of course, are already members of a “select few.” But that, to Roberts, was not enough. It was intolerable that anyone should have more influence than a wealthy donor: if Bruce Springsteen or Stevie Wonder could show support for a candidate by singing, then that discriminated against, subordinated, directly harmed rich people who could not. Having to give less than other donors to a specific politician was a very real harm to a wealthy person because the entire purpose of giving money was to gain friendship, access, and favoritism from the politician. And that, to Roberts, was as it should be; that was democracy at its best: “Government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access . . . are not corruption’ [quoting Citizens United]. They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
Sean McCutcheon is simply a constituent, like the widow seeking help with her Social Security check. Of course, the widow has only her vote to offer as thanks. But Sean McCutcheon is rich; government cannot deny him the right to as much gratitude from as many politicians as he can buy.
In Roberts’s view, the court was simply fulfilling its age-old role of protecting the lonely, endangered dissenter from an intolerant majority. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he wrote. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”
The Roberts view of democracy is the direct opposite