04/04/2014 03:49 pm ET Updated Jun 04, 2014

The Supreme Court's McCutcheon Decision and the 'Appearance' of Corruption

The 5-4 Supreme Court ruling in McCutcheon v. Federal Election Commission represents another step toward the complete capture of our political process by moneyed interests. In a blistering dissent, which he took the unusual step of delivering orally, Justice Stephen Breyer declared: "If the court in Citizens United opened a door, today's decision may well open a floodgate."

If money is speech, how long will it be until the Supreme Court declares that laws against bribery are unconstitutional? You think I'm kidding? It is certainly within the realm of freedom of speech for a billionaire to ask (does he have to ask nicely?) a politician to do something like, oh, I don't know, pass a law allowing the company he owns to pollute to its heart's content. Well, if money is speech, then how can the law prevent that billionaire from fully exercising his freedom of speech by topping off his request with a grand rhetorical flourish of the kind only a multi-million dollar campaign contribution can provide.

The idea that money equals speech comes from the Supreme Court's decision in Buckley v. Valeo, which overturned a whole host of limits on campaign and independent expenditures passed in the post-Watergate era, although it did uphold limits on campaign contributions.

The Court in that case found that our representatives could pass laws banning a direct quid pro quo of the kind I have described above. The Roberts Court, however, has found that Buckley v. Valeo didn't go far enough in other areas, and has removed most of those limits on contributions. Who is to say that a conservative majority wouldn't some day follow its own logic to the conclusion that laws banning bribery are unconstitutional, because money is speech?

In Buckley v. Valeo, the Court's majority also found that Congress did have the authority to pass laws on campaign finance in order to ensure that our system avoided "corruption or its appearance." It simply decided that spending by campaigns and individuals did not fall into those categories, and could not be restricted.

Of course, "appearance" is in the eye of the beholder. The dissenters in Buckley v. Valeo rejected the idea that money was speech, and further proposed that excessive spending could, in and of itself, be corruptive and corrosive to our democracy. They also argued that our lawmakers -- not the Court -- were charged with making that determination. Justice Byron White wrote in his dissent:

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. Those supporting the bill undeniably included many seasoned professionals who have been deeply involved in elective processes and who have viewed them at close range over many years.

As in Citizens United, five conservative Justices, led by the good ole' "umpire" John Roberts, decided that they know better than the nation's elected representatives whether one individual contributing millions to campaigns and parties creates the "appearance" of corruption. If that's not judicial activism, I don't know what is.

Finally, I'd argue that -- even if bribery remains technically illegal -- those massive contributions represent not just the appearance of corruption, but the reality of it as well.