Small Rulings With Big Impacts

Apr 3 2014 @ 4:44pm

Rick Hasen sees the McCutcheon opinion as an example of the chief justice’s “long game” at work: concealing sweeping rulings in a cloak of judicial minimalism. In keeping with this style, he notes, the ruling enables a much more dramatic erosion of the regulatory regime down the line:

[T]he court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rejects ingratiation and access as a problem, and says that this funnel of significant money to parties could serve the purpose of strengthening political parties and thus be a good thing. He writes: “When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.”

Building on Hasen’s argument, Emily Bazelon takes Roberts to task for handing Congress instructions he knows they won’t follow:

Roberts tells Congress it can still achieve the ends of fairer and cleaner elections, it just has to alter the means it chose for getting there. Never mind that this Congress will do no such thing, just as it has failed to take up Roberts’ invitation last June to pass a new version of the Voting Rights Act.

… Every time the rules of campaign finance loosen, money finds new ways to get to the giver’s intended recipient. Surely that will be the case this time, too. As Breyer says, “in the real world, the methods of achieving circumvention are more subtle and more complex.” Roberts waves away these concerns by telling Congress to just tighten up if it sees new problems emerging. Restrict transfers among candidates and political committees. Make it harder to earmark donations. Rely on the benefits of disclosure. It will be Congress’s fault, not the court’s, if politics tilt further toward the rich.

Dahlia Lithwick worries “that the court has located itself so outside the orbit of the 99 percent that it simply doesn’t matter to the five conservatives in the majority that the American public knows perfectly well what bought government looks like”:

Roberts honestly seems to inhabit a world in which what really worries the average Joe about the current electoral regime is not that his voice is drowned out by that of Sheldon Adelson, but that he might be forced to spend his millions “at lower levels than others because he wants to support more candidates” or that he is too busy making billions of dollars at work to volunteer for a campaign, or that he has Jay Z and Beyoncé on standby to perform at a house party in the event that his billions are tied up elsewhere this week.

Really, it’s weird. The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment.

Looking back at the previous holdings of the Roberts court, Waldman sees the total dismantling of the campaign finance regulations as its inevitable legacy:

Every time this Court has confronted a question of campaign finance, where there is a conflict between the freedom of wealthy donors to do as they wish on one hand and the integrity of the system on the other, it has sided with the wealthy donors. Every time.