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For the Roberts Court, Facts Are Malleable

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Sen. Patrick Moynihan famously noted that everyone is entitled to their own opinion, but not their own facts. Unfortunately, as the Supreme Court's recent opinion in the blockbuster McCutcheon v. FEC campaign finance case reminded us, someone forgot to tell the Roberts Court.

For the past several years, good government advocates have watched with dismay as the Supreme Court has systematically dismantled campaign finance laws, all while making it harder for individual Americans to secure their right to vote.

This pattern isn't just the result of the conservative justices' misreading of the Constitution. It also has required the justices to embrace a shaky and opportunistic relationship with facts.

In the magical thinking of the Roberts Court, democracy is strengthened when wealthy individuals and the groups that represent them are able to buy influence. In Citizens United v. FEC, the 2010 case that eliminated barriers to independent corporate spending to influence elections, the Court's majority chose to ignore extensive evidence that unfettered campaign spending can lead to harmful influence-buying that does grave damage to our democracy.

Dissenting in the case, Justice John Paul Stevens chided the majority for ignoring the extensive fact-finding record compiled by Congress when it passed the Bipartisan Campaign Finance Reform Act, also known as McCain-Feingold. That record, Stevens wrote, "stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other's backs -- and which amply supported Congress' determination to target a limited set of especially destructive practices."

Two years after Citizens United, a case from Montana offered the Court a chance to check its assumptions against reality. Four of the Justices pointed out that "[M]ontana's experience, like considerable experience elsewhere since the Court's decision in Citizens United casts grave doubt on the Court's supposition that independent expenditures do not corrupt or appear to do so."

They also pointed to the historical record the lower court had carefully examined, which showed that independent expenditures by corporations had, in fact, done exactly what the conservatives on the court claim they don't do. But the majority not only ignored the historical and current facts, they decided the case without even holding a hearing at which those facts could be discussed.

We saw a similar disregard for the voluminous factual record upon which Congress has based our nation's campaign finance laws in this month's decision in McCutcheon v. FEC, which eliminated Congress' ability to set an aggregate cap for individual donations to political campaigns. As Justice Breyer noted in his dissent, the Court's "conclusion rests upon its own, not a record-based, view of the facts."

Likewise, Roberts and his allies on the court dismissed the clear facts when they struck down the key enforcement mechanism of the Voting Rights Act, claiming that the Act's success in preventing attacks on voting rights meant that it was no longer necessary. The vast record before Congress when it renewed the law in 2006 showed otherwise. Justice Ruth Bader Ginsburg famously compared this reasoning to "throwing away your umbrella in a rainstorm because you are not getting wet." Immediately, states across the South moved forward on restrictive voting measures, sadly proving Justice Ginsburg right.

Conservative activists like to speak of judges "legislating from the bench" when they protect the right to marry for LGBT people or reproductive rights for women. They seem to be less interested when the Supreme Court ignores the factual findings of Congress to open our elections to the wealthiest and most powerful while barring the least powerful from the ballot box.

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