How Chief Justice Roberts Dissembled, Obfuscated and Misled in his McCutcheon Opinion to Radically Change the Court’s “Corruption” Standard and Legalize the Use of Contributions to Buy Government Influence and Results

By Fred Wertheimer — President, Democracy 21  

In a Supreme Court decision last month dealing with affirmative action, Chief Justice Roberts responded to Justice Sotomayor’s sharp dissent to the majority opinion by stating that it “does more harm than good to question the openness and candor of those on either side of the debate.”

But what if a Supreme Court opinion dissembles, obfuscates and misleads?  Then it makes eminent sense to question the “openness and candor” of the “other side of the debate.”

And that is the case with the opinion Chief Justice Roberts wrote in McCutcheon v. FEC.

The Supreme Court decision in the McCutcheon case last month, and the Court’s decision in Citizens United in 2010, has left our campaign finance laws in shambles.

The McCutcheon opinion by Chief Justice Roberts overturned decades of national policy and Supreme Court precedent to strike down the limits on the total amount of contributions an individual can give to federal candidates and to party committees in an election cycle.

The decision paved the way for federal officeholders to solicit and influence-seeking donors to contribute million-dollar checks to support federal candidates and their parties, through the use of joint fundraising committees.

While public and media attention in the McCutcheon case focused on the contribution limits struck down, Chief Justice Roberts also used the opinion to try to set in stone a radical change in Supreme Court doctrine. He did so while pretending he wasn’t doing anything new.

The Chief Justice rewrote the Supreme Court’s position that had been in place for decades on the meaning of “corruption” for purposes of determining the constitutionality of contribution limits.

In doing so, Roberts abandoned thirty-eight years of Supreme Court jurisprudence on contribution limits and instead announced a new, greatly narrowed meaning of corruption that covers only quid pro quo corruption – which is already made criminal by bribery laws.

By making this fundamental change, Chief Justice Roberts legalized buying government influence and results. To put it another way, Roberts legalized government corruption.

In his McCutcheon opinion, Chief Justice Roberts stated:

Any regulation [of campaign contributions] must instead target what we have called “quid pro quo” corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.

This is the definition of criminal bribery.

In taking this position, Chief Justice Roberts misleadingly argued that his definition of “corruption” was merely carrying forward the definition of “corruption” the Court used in its landmark 1976 decision in Buckley v. Valeo.

The Chief Justice wrote, “The definition of corruption that we apply today, however, has firm roots in Buckley itself.” He further said:

Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. As Buckley explained, Congress may permissibly seek to rein in “large contributions [that] are given to secure a political quid pro quo from current and potential office holders.”

The Supreme Court in Buckley, however, took a quite different position, stating:

Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with ‘proven and suspected quid pro quo arrangements.’ But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action.

Thus, in direct conflict with Chief Justice Robert’s misleading claim in McCutcheon, the Supreme Court in Buckley explicitly rejected a constitutional justification for contribution limits limited only to quid pro quo corruption, or “bribery.”

In fact, the Supreme Court in Buckley went on to find that corruption is inherent in a system of unlimited campaign contributions. The Court stated:

And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.  (Emphasis added.)

The Court also said in Buckley:

Congress could legitimately conclude that the avoidance of the appearance of improper influence “is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.”  (Emphasis added.)

Thus, in the guise of carrying forward the Buckley definition of “corruption” for purposes of determining the constitutionality of contribution limits, Chief Justice Roberts used the McCutcheon opinion to radically change and narrow the definition.

The Chief Justice did so, furthermore, without providing any explanation or justification for why the Buckley approach was wrong.

It was not just the Buckley decision, however, that the Chief Justice rejected; he also rejected the Supreme Court’s jurisprudence in a host of other cases decided during the three decades that followed Buckley.  In case after case, the Supreme Court made clear that the power of Congress to limit campaign contributions went beyond quid pro quo corruption, or bribery.

In Shrink Missouri Government PAC (2000), the Supreme Court said in upholding the constitutionality of contribution limits:

In speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. (Emphasis added.)

In. Colorado Republican Federal Campaign Committee (2001), the Supreme Court used “undue influence” to describe the “corruption” standard for campaign finance laws. (Emphasis added.)

In Beaumont (2002), the Supreme Court found that “corruptionfor campaign finance purposes was properlyunderstood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment.” (Emphasis added.)

In McConnell (2003), the Court said:

Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judgment, and the appearance of such influence.’  (Emphasis added.)

                                                            ….

Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who made large financial contributions valued by the officeholder. (Emphasis added.)

Under Chief Justice Roberts’ new definition of “corruption,” buying influence is perfectly okay. The only circumstances in which contributions can be limited are when they threaten to result in quid pro quo corruption – an articulated exchange of political money for government actions.

As Justice Breyer stated in his powerful dissent in McCutcheon, the Roberts opinion “relies heavily upon a narrow definition of ‘corruption’ that excludes efforts to obtain ‘influence over or access to’ elected officials or political parties.”

The position taken by Chief Justice Roberts in McCutcheon is divorced from reality.

Large campaign contributions can and frequently have been used to buy influence with officeholders and government results, without ever articulating any “direct exchange of an official act for money,” Chief Justice Roberts’ requirement to justify contribution limits.

Large donors and officeholders readily understand this, even if Chief Justice Roberts does not.

Perhaps Chief Justice Roberts would better understand how influence-money corrupts American politics if he paid attention to the late Senate Finance Committee Chairman Russell Long, who once noted, “The distinction between a large campaign contribution and a bribe is almost a hairline’s difference.”

Faced with a string of Supreme Court decisions over three decades that were in direct conflict with his new, narrow definition of “corruption,” Chief Justice Roberts tried to disguise the radical change he was making by dissembling and obfuscating.

First, Chief Justice Roberts tried to make the case that his position was consistent with Buckley, by ignoring the plain language in Buckley that “corruption” goes beyond his bribery standard of quid pro quo corruption.

Second, Chief Justice Roberts simply ignored the numerous Supreme Court decisions that followed Buckley and that also had rejected the definition of “corruption” he set forth in McCutcheon.

Third, Chief Justice Roberts ignored the fact that his opinion in McCutcheon reversed the position he took in Randall v. Sorrell in 2006 that stare decisis, or adherence to established precedents, specifically applied to the Buckley decision.

In Randall, Chief Justice Roberts joined with Justice Breyer, in discussing adherence to Buckley, to state, “[T]he rule of law demands that adhering to our prior case law be the norm. Departure from precedent is exceptional, and requires ‘special justification.’”

In McCutcheon, however, Chief Justice Roberts cited neither “exceptional” reasons nor “special justification” for abandoning Buckley.

Instead, Roberts dissembled, arguing that his opinion in McCutcheon was consistent with Buckley, when in fact it was nothing of the kind. The McCutcheon opinion represented a fundamental departure from Buckley on both the meaning of “corruption” for purposes of contribution limits and the constitutionality of overall contribution limits.

Fourth, Chief Justice Roberts in McCutcheon relied on extraneous language about “corruption” found in the Citizens United decision. That language dealt with an issue that received little, if any, attention in the briefing or oral argument in the Citizens United case and made little difference to the case’s outcome, given the other positions taken by the majority.

Furthermore, the Citizens United decision dealt with independent expenditures and the majority made clear that the decision did not apply to contribution limits, which was the issue at stake in McCutcheon.  Beginning with Buckley and including Citizens United, the Supreme Court has drawn a sharp line in its constitutional analysis between expenditures and contributions.

There is an explanation, for the new Roberts definition of “corruption” in McCutcheon: a change in the makeup of the Supreme Court.

The appointment to the Supreme Court of Chief Justice Roberts in 2005 and Justice Alito in 2006 provided the Court with two new Justices who didn’t like the Court’s “corruption” standard. So they just changed it.

The two new Justices ignored more than thirty years of previous Supreme Court cases and provided no explanation for why the Court’s “corruption” standard had suddenly become wrong.

Thus, the Supreme Court fundamentally changed the Court’s longstanding meaning of “corruption” for purposes of the constitutionality of contribution limits based on nothing more than the personal biases, predilections and partisan ideology of Chief Justice Roberts and Justice Alito, along with the three other justices who joined them in the opinion.

Even under the Court’s new, narrow meaning of “corruption,” there should be room for contribution limits to be constitutional since unlimited contributions certainly present opportunities for quid pro quo corruption.  But given the Supreme Court’s campaign finance decisions since Chief Justice Roberts and Justice Alito arrived, there is no way to know just how far this Court is prepared to go to destroy the nation’s campaign finance laws.

The McCutcheon and Citizens United decisions have done enormous damage to the nation’s ability to prevent the buying and selling of government influence and results.

The opinions also have done great damage to the credibility and legitimacy of the Roberts Court. A recent poll by Greenberg Quinlan Rosner, for example, found that Americans by 80 to 18 percent oppose the Citizens United decision, decided by a 5 to 4 vote.

An analysis piece by Adam Liptak in The New York Times (May 10, 2014) examined partisan polarization on the Supreme Court and concluded that “the perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.”

In the end, the McCutcheon and Citizens United decisions will not stand the test of time.  One day, there will be a new majority on the Supreme Court that reflects the views about “corruption,” contribution limits and corporate spending in elections, held by the Supreme Court for decades until 2010.

The McCutcheon and Citizens United decisions will then disappear as they surely should.