04/08/2014 10:01 am ET Updated Jun 08, 2014

The Tortuous, Corrupted Logic of the Last Supreme Court Ruling on Finance

The Supreme Court's Tuesday decision in McCutcheon to eliminate overall campaign giving limits not only shredded the remaining constraints on money in politics -- it also declared a constitutional right for the wealthy to corrupt -- as long as they stop short of explicit bribery.

The shard of hope that remains for democracy as most Americans --- and the Founders -- understood it, is that the vote was a divided 5-4, and enjoys not even a smidgeon of public legitimacy. A libertarian sponsored poll released the day after the Court decision found that 75 percent of Americans believe that politicians are corrupted by campaign contributions. If, as Progressive era humorist Peter Finley Dunne opined, the Supreme Court does follow the election returns, the cycle of public revulsion may turn the current trend around -- but only with a different court and a deeper public grasp of the threat.

This case is not primarily about campaign finance. It turned on a different, more fundamental question: are elected officials accountable to ordinary voters or donors? The Court majority argued that since money is speech, the First Amendment guarantees access and influence to wealth and power. The public's only check comes on Election Day; preferential loyalty to those who pay for elections is constitutionally protected. This is precisely the perceived threat to democracy that most worried Madison and the Founders -- but which the Roberts Court (and much of American conservatism) has embraced.

Here's how Chief Justice Roberts put it:

"Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption--"quid pro quo" corruption.... Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner "influence over or access to" elected officials or political parties. "

So there are types of corruption over which Congress has no authority -- including corruption which creates "influence over" elected officials.

In the minority opinion Justice Breyer makes clear that there is no foundation for this limitation of corruption to actual bribery in the Constitution, in Buckley, in McConnell, or in most other Supreme Court rulings on free speech, corruption and campaign spending.

This critically important definition of "corruption" is inconsistent with the Court's prior case law .... the Court has used the phrase "subversion of the political process" to describe circumstances in which "elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns..... Buckley upheld the base limits in significant part because they helped thwart 'the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions'.... In McConnell the Court found that limits on soft money giving "thwarted a significant risk of corruption--understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives...Our cases have firmly established that Congress' legitimate interest extends beyond preventing simple cash­for­votes corruption to curbing 'undue influence on an officeholder's judgment.'

But Breyer is forced to concede that in Citizens United Justice Roberts baited the trap which he sprung in McCutcheon. "Further, the (Citizens United) Court said that quid pro quo corruption does not include 'influence over or access to elected officials,'" because "'generic favoritism or influence theory... is at odds with standard First Amendment analyses.'" Breyer argues that this language was non-binding dicta -- but there is, sadly, ample precedent for such snares. When the Santa Clara Court ruled in 1886 that corporations were people, there was never a written opinion declaring that finding -- a paragraph was simply inserted into the majority opinion that the Supreme Court had already answered the question of corporate personhood, even though, in fact there was no previous ruling to be found.

Similarly, the Roberts opinion in McCutcheon states that the Court has already found that Congress can regulate only quid pro quo corruption -- even though there is, in fact, no record of such a finding being made.

One senses that even Roberts feels queasy about the enterprise, since he cobbles together this nonsensical assertion: "But there is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate--for which the candidate feels obligated--and money within the base limits given widely to a candidate's party--for which the candidate, like all other members of the party, feels grateful." There is no evident legal constitutional basis for this distinction -- between obligation and gratitude, since Roberts admits that gratitude creates influence, an ordinary English synonym for obligation.

Roberts concedes that large campaign gifts create "obligation." Obligation, the Court has repeatedly ruled, is corruption. But Roberts goes on to assert that if a contribution flows to the party, or the candidates of the party, it is not "identifiable" and therefore what is felt is a softer, constitutionally protected emotion -- gratitude -- which cleanses the transaction of any potential for corruption.

Really? Imagine a Congressperson seeking to be chosen as Speaker of the House. She creates a joint fund-raising committee, to benefit 300 incumbent and priority challenging congressional candidates of the party. Ten oil and gas industry billionaires give the maximum $2,600 gift to each of the 300 candidates -- so our would-be House Speaker has now greased her candidacy with $5,200,000 of "gratitude" from one industry. Grant, perhaps, that each recipient of only $26,000 from the oil industry feels mere gratitude. What does the potential future Speaker of the House, her candidacy blessed with more than $5 million in influence feel? Based on Roberts's own comment, I suggest that $5,200,000 to advance a candidacy for Speakership might create "obligation."

Roberts elaborate parsing of words to demonstrate that unlimited contributions creates no risk of corruption, strongly suggests that the wisest Justice of all was the late "Whizzer" White, who in dissenting from Buckley's original scrapping of spending limits, commented drily that "Congress was plainly of the view that these expenditures also have corruptive potential; but the Court strikes down the provision, strangely enough claiming more insight as to what may improperly influence candidates than is possessed by the majority of Congress that passed this bill and the President who signed it."

Justice Thomas, in concurring, actually blows the whistle: the logic of the Roberts' opinion effectively overturns previous Court precedents and Buckley in particular; "I adhere to the view that this Court's decision in Buckley v. Valeo, , denigrates core First Amendment speech and should be overruled..... Buckley relied on the premise that contributions are different in kind from direct expenditures. None of the Court's bases for that premise withstands careful review."

Thomas bells the cat Roberts would leave as a silent stalker of democracy. If money is speech, there is no logical basis for any limits on campaign giving at all. "Contributions do increase the quantity of communication by 'amplifying the voice of the candidate' and 'helping to ensure the dissemination of the messages that the contributor wishes to convey.'"

The staggering chasm that the Roberts court has opened up is, ironically, best illustrated by Roberts' use of famous quote by Edmund Burke who argued "in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his 'mature judgment,' but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents.' Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials."

Burke was, of course, addressing the electors of Bristol -- his constituency. Roberts, seemingly tone deaf to the irony, offers this quote to defend of the right of campaign contributors to preferential access to and influence over members of Congress for whom, by definition, they are not constituents! No person can constitutionally be the constituent of more than two Senators and one House member. The cumulative contribution limits the Court just threw out amply accommodated the ability of a donor to give the maximum allowable contribution to those three officials, plus a President and state and federal parties. What the limits did not allow as for the wealthy to spread their influence far beyond their own districts and states. And what Roberts is defending is the right of the wealthy to suborn, through campaign giving, the very "most unreserved communication with his constituents" which Burke defined as the essence of democracy.

This fear -- that access purchased by wealth through contributions will preempt the access of electors and constituents to their representatives -- is hardly hypothetical. Last summer an awkward document surfaced -- a Democratic Party manual for freshmen members of the House. It spelled out, in detail, how many hours the Member is expected to spend on each facet of their job. Number one -- warranting more hours than all of their official duties combined - is raising money, for themselves and the party committees. Democrats were told to spend at least four hours a day with donors. Republican House members have similar priorities.

So we know, as fact, not theory that those members of Congress who might be most responsive to constituent opinion -- because they are in contested seats -- spend more time with donors than with their voters. And in pondering if "access" can really be separated from influence, imagine a court, or a planning commission, in which only the side which made the largest financial contribution got to make oral arguments or testify at the hearing -- others had to make do with written submissions. Would we consider that a "fair" hearing? But that is the Congress the Roberts Court would create.

Madison would not, we can be sure. Indeed, both he and the other founders are turning over in their deist graves this week. He wrote clearly and passionately on the need to prevent greed from swamping democracy. Here's Madison on parliamentary democracy as practiced in the Great Britain of his day:
"A government operating by corrupt influence; substituting the motive of private interest in place of public duty; converting its pecuniary dispensations into bounties to favorites or bribes to opponents; accommodating its measures to the avidity of a part of the nation instead of the benefit of the whole: in a word, enlisting an army of interested partisans, whose tongues, whose pens, whose intrigues.... may support a real domination of the few under an apparent liberty of the many."

Comes the Roberts Court to turn Madison's First Amendment on its head, into a tool for the few, not the many. The wealth dominated political process Roberts has enshrined, down to its "tongues, pens and intrigues," bears a far closer resemblance to the corrupt English parliament the founders rebelled against than it does to Madison's vision for America: A government deriving its energy from the will of the society, and operating by the reason of its measures on the understanding and interest of the society.

But again, the hope remains -- we are only one vote away from restoring our democracy.

A veteran leader in the environmental movement, Carl Pope spent the last 18 years of his career at the Sierra Club as CEO and chairman. He's now the principal advisor at Inside Straight Strategies, looking for the underlying economics that link sustainability and economic development. Mr. Pope is co-author -- along with Paul Rauber --of Strategic Ignorance: Why the Bush Administration Is Recklessly Destroying a Century of Environmental Progress, which the New York Review of Books called "a splendidly fierce book."