Fred Wertheimer for Huffington Post
The Supreme Court began its fall term this week.
This seems like a good time to pause for a moment and revisit how decisions by Chief Justice John Roberts and four of his Supreme Court colleagues during the past five years have given the nation a system of legalized bribery.
On January 21, 2010, the Supreme Court issued a 5 to 4 decision in Citizens United that rewrote the rules of American politics and did enormous damage to the nation’s anti-corruption campaign finance laws.
There is no particular reason to believe the five Justices knew the political chaos they were unleashing. The Justices’ naïveté is reflected in Justice Kennedy’s opinion, which asserted that there is nothing wrong with using political money to obtain access and influence and that “the appearance of access and influence will not cause the electorate to lose faith in this democracy.”
Justice Kennedy’s strange prediction about the faith of the electorate, without citing any basis for his prophecy, and his view that there is nothing wrong with donors buying access and influence have been overwhelmingly rejected by the American people.
According to a New York Times article (June 2, 2015) describing a New York Times /CBS News poll, “Americans of both parties fundamentally reject the regime of untrammeled money in elections made possible by the Supreme Court’s Citizens United ruling and other court decisions.” Eighty-five percent of respondents to the poll supported the position that fundamental change or a complete overhaul of the campaign finance system is needed.
According to a Bloomberg News poll (September 28, 2015), an overwhelming 78 percent of the public reject the Citizens United decision and believe it should be overturned.
The Supreme Court in 1976 essentially agreed with these views of the American public in warning in Buckley v. Valeo against the dangers of unlimited contributions. The Court found that candidate contribution limits were necessary “to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions.” (Emphasis added.)
That Supreme Court recognized that giving a candidate a large contribution creates the opportunity for the donor to buy influence over government decisions from the officeholder in return – without any need for an articulated exchange, or quid pro quo transaction.
Thus, the Court in Buckley made perfectly clear that in establishing corruption as the grounds for upholding the constitutionality of contribution limits, the Court was talking about more than just quid pro quo corruption or bribery.
The Court stated that “making criminal the giving and taking of bribes deals with only the most blatant and specific attempts of those with money to influence governmental action.”
In other words, the Court said that its view of corruption in the context of campaign finance laws went well beyond quid pro quo transactions.
In Shrink Missouri Government PAC v Nixon (2000), the Court reaffirmed its Buckley position, in again upholding contribution limits, stating that “In speaking of ‘improper influence’ and ‘opportunities for abuse,’ we recognized a concern not confined to bribery of public officials.”
However, this did not stop Chief Justice Roberts in the McCutcheon case (2014) from wrongly claiming that Buckley limited the corruption rationale to “‘quid pro quo’ corruption,” or “a direct exchange of an official act for money.”
Chief Justice Roberts clearly misstated the Buckley decision in McCutcheon, when he also asserted that “the definition of corruption that we apply today, however, has firm roots in Buckley itself.”
In 2007, with the additions of Chief Justice Roberts and Justice Alito to the Supreme Court, a new 5 to 4 majority emerged on the Court extremely hostile to campaign finance laws.
This led to the Citizens United decision and the McCutcheon decision, which together have blown a massive hole in the campaign finance laws big enough for an army to drive through.
Citizens United also directly influenced the D.C. Circuit Court of Appeals decision in SpeechNow (2010), which stated it was based on Citizens United and which struck down the limits on contributions to PACs that make only independent expenditures.
Citizens United overturned a century of national policy and decades of Supreme Court decisions to hold that corporations could make expenditures in elections as long as they were made independent of the candidates being supported.
McCutcheon overturned a key holding of the Buckley decision and twenty-eight years of Supreme Court jurisprudence to strike down the aggregate limit on total contributions by an individual to all candidates and parties.
Meanwhile, the SpeechNow decision, based explicitly on Citizens United, gave birth to the Super PAC and to the individual-candidate Super PAC, in which donors give unlimited contributions to a Super PAC that is supporting only one candidate and that is controlled by associates of that candidate.
The individual-candidate Super PAC essentially allows a donor to give and a candidate to receive the benefit of unlimited contributions. Thus, it bypasses the candidate contribution limit of $2,700 per individual donor and has recreated the very system of unlimited candidate contributions that the Supreme Court in Buckley correctly described as inherently corrupt.
Today, in essence, individuals, corporations and labor unions can give huge, unlimited contributions through individual-candidate Super PACs to benefit a specific candidate and obtain in return the opportunity to buy government influence over government decisions from that candidate.
In other words, today, donors can give and candidates can receive legalized bribes.
Perhaps the best explanation of the enormous damage that the Roberts Court has done to the country was provided by conservative Judge Richard Posner of the Seventh Circuit Court of Appeals, seen by many as the nation’s most influential judge outside of the Supreme Court Justices.
In an interview with NPR, Judge Posner said, “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”
Judge Posner has written on his blog that “[I]t is difficult to see what practical difference there is between super PAC donations and direct campaign donations, from a corruption standpoint.”
Chief Justice Roberts’ notion that contribution limits can be justified only by quid pro quo exchanges, or bribery, is a joke and is divorced from reality.
Common sense and history tells us that if an individual can contribute $500,000 to an officeholder’s individual-candidate Super PAC, the donor, in return, will be able to obtain influence over government decisions from that officeholder, without any need to articulate that the money was given in exchange for that influence or decision.
The Supreme Court recognized this in 1976 and then repeatedly for the following thirty-four years. The Roberts Court’s new view that corruption means only quid pro quo exchanges is completely out of touch with the real world.
The system of legalized bribery created by Chief Justice Roberts and his four Supreme Court colleagues is corrupting our democracy and fundamentally undermining the faith of the American people in our government.
The Roberts Court’s campaign finance decisions are a national disaster. They must, and eventually will, be overturned in order to restore the integrity of our constitutional system of representative government.