The Wall Street Journal editorial board was quick to support a Supreme Court decision on campaign finance, in which the conservative justices once again ignored legal precedent and usurped the role of Congress to legislate complicated policy.
On April 2, the Supreme Court decided McCutcheon v. FEC (also known as "the next Citizens United"), and held that overall campaign contribution limits -- previously set at $123,200 -- were unconstitutional. Although the Court did not rule on the individual campaign limits of $5,200 per candidate in the two-year election cycle, the conservative justices struck down the aggregate limits, allowing future contributions to be spread among an unlimited amount of candidates, political parties, and PACs. Although Congress had set those overall campaign limits in the wake of the Watergate scandals to guard against institutional corruption or the appearance of corruption -- a goal repeatedly upheld by the Supreme Court -- the Court in McCutcheon ignored this precedent, judicially narrowing future regulation so that “Congress may target only a specific type of corruption -- 'quid pro quo' corruption.”
The WSJ, which has been misinforming about this case from the beginning, was predictably pleased with the outcome in McCutcheon. Although the WSJ editorial board lectures about fidelity to the law when it comes to legal decisions that might affect corporate wealth, it was not so bothered at the Court's rejection of precedent in McCutcheon. In an April 2 editorial, it celebrated the decision as a win for “the core promise of American liberty” and applauded the Court for “walking back” a “historic blunder.” In fact, the WSJ really only had one complaint about the McCutcheon decision: why didn't conservative Chief Justice John Roberts go even further?
In its original First Amendment sin, Buckley v. Valeo in 1976, the Court said government can regulate political contributions to limit the risk of “quid pro quo” corruption. That is, money in return for a political favor. But Congress has gone well beyond that narrow definition of corruption to include trying to limit some donors but not others or simply the amount of money in politics.
We wish the Court had gone further and overturned all of Buckley, as Justice Clarence Thomas urged in his concurring opinion. As he put it, Buckley is now “a rule without a rationale” given how much the Court has eroded its original logic. But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress. Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case.
We hope it's soon given the pernicious doctrine laid out in the dissent joined by all four liberals. “The First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters,” wrote Justice Stephen Breyer (his italics).
“Collective speech” sounds Orwellian as a legal doctrine that invites government as a leveller of free speech and is alien to the U.S. constitutional tradition. The scary thought is that the Court is only one heart attack away from gutting the core promise of American liberty.
Much like Roberts' plurality opinion, which was joined in the judgment by Justice Clarence Thomas (who would have explicitly overruled all the prior cases that Roberts instead re-interpreted), the WSJ ignores the reality of modern day elections and campaign finance regulation. In McCutcheon, Roberts dismissed Congressional concerns about institutional corruption in politics by deciding that only outright bribery is prohibited, rather than the influence that comes with a contributor's $3.6 million dollar check being carefully directed to a preferred candidate. To justify this new perspective of campaign finance, Roberts insisted this sort of money doesn't easily flow through the system, even though the dissent of Justice Stephen Breyer, the Federal Election Commission, and actual campaign finance experts (repeatedly) have explained how it does. Even worse, according to legal expert Dahlia Lithwick, “without even acknowledging that it is doing so, the Roberts Five has overturned 40 years of policy and case law,” a Roberts habit that even conservative Justice Antonin Scalia has previously mocked as "faux judicial restraint."
This is not the first time Roberts has waved his magic wand in this way to obscure radical changes in constitutional law that dismantle decades of bipartisan legislation. In his decision in Shelby County v. Holder, which infamously struck down key provisions to the Voting Rights Act, Roberts and the conservative majority made the long history of minority voter discrimination simply disappear. In that opinion too, Roberts rejected the extensive findings and expertise of Congress for his own. Ari Berman of The Nation quickly observed that the same right-wing interests benefit from both of Roberts' rulings: “These are not unrelated issues -- the same people, like the Koch brothers, who favor unlimited secret money in US elections are the ones funding the effort to make it harder for people to vote. The net effect is an attempt to concentrate the power of the top 1 percent in the political process and to drown out the voices and votes of everyone else.”
In McCutcheon, Roberts insists that eliminating the overall campaign donation limits makes perfect sense, because “if there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801.” But as Justice Breyer pointed out in his dissent in McCutcheon, Roberts' view of corruption in politics -- apparently shared by the WSJ editorial board -- is seriously flawed, because it misunderstands how easily these initial transfers can be subsequently shuffled to other sources and even funneled to one (Breyer's instantly famous "Example Two"):
[The Court's] conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.
It may be that current campaign finance law is outdated. Money might always find its way around this system of limits, so perhaps campaign finance reform should instead focus on public financing and disclosure initiatives. But as the majority decision in McCutcheon amply demonstrated, this is not a decision for the Court, but rather for the elected representatives of Congress, informed by experts and real world data. Cheered on by right-wing media, the conservative justices are rapidly constructing a world of case law untethered to either the past or present, but it's the rest of the American electorate who have to live in that ill-informed future.