I walked out one unexpectedly chilly morning last week and I was greeted with a bit of particularly bad news—as if the terrifyingly cold weather hadn’t already been bad enough. Flipping through The New York Times’ stellar and new pocket-news app, NYTimes Now, one of the top stories caught my eye. The headline read, “Supreme Court greenlights bid to rip out frail heart of American democracy.” Well, it might as well have.
The real April 2 headline read “Supreme Court Strikes Down Overall Political Donation Cap” and it detailed the final decision in the recent Supreme Court decision McCutcheon vs. Federal Election Commission (The New York Times, 04.02.14). The verdict of the conservative majority was to overturn all campaign finance regulation since the post-Watergate era by removing the biennial limits on donation. There are myriad reasons why the specific decision in the McCutcheon case signals doom and gloom across the American civil landscape, but one of the main issues I see with the decision was how it, like the Citizens United case before it, had served as a major springboard toward the conservative justices’ agendas; their ideologies are imposing themselves beyond the scope of the cases they review. With a 5-4 conservative-liberal split, and only that simple majority needed to decide any case, it’s no surprise that the conservative legal agenda is being advanced with great speed.
With the landmark Citizens United case of 2010, the court had already determined that the First Amendment prohibits the government from restricting independent political expenditures by large associations like corporations and labor unions (which it had restricted in the past). What was most surprising about the case was that, as pointed out by Justice Stevens in his dissent, Justice Anthony Kennedy’s majority opinion contained a claim of unconstitutionality that hadn’t been raised by the litigants themselves! By pointing to the First Amendment in order to protect political donations of all kinds, the majority not only pulled an argument out of thin air, but pulled out an argument that had far-reaching, foundational implications. According to Stevens, the Court’s majority decision had entirely discredited the definition of corruption in anything but the strictest, tit-for-tat terms; denying Congress the power to safeguard “the improper use of money to influence the result [of an election] is to deny the nation in a vital particular the power of self protection,” said Stevens. In other words, giving political donation of any amount complete protection under constitutional law might lead to less than favorable results for our election process.
Emily Bazelon, Truman Capote Fellow at Yale Law School and a Slate Magazine Senior Editor, argues that the Chief Justice Roberts in particular has long been a master of creating sweeping legal change in mild rhetoric. In the McCutcheon case: “Chief Justice Roberts declares that Congress may still ‘regulate campaign contributions to protect against corruption or the appearance of corruption,’” and then proceeds to “whittle [down] the definition of corruption down to a little nub that has nothing to do with how donors actually buy influence” (Slate, “The Devastating, Sneaky Genius of John Roberts’ Opinions,” 04.02.14).
Influence is not bought in tit-for-tat transactions, as the Roberts decision holds (and as Kennedy’s majority opinion in Citizens United hinted at, and Stevens rebuked), it is bought in access to top party officials and “friends.” Access becomes available as millions of dollars are funneled into a wide set of candidates, in reality then manifesting as donations to the party treasuries, and so transforming into invitations to dinners at party leaders’ houses, lunches with key candidates, a voice in the war rooms. Essentially, Roberts and the other conservative Justices (Alito, Scalia, Kennedy, Thomas) are placing the onus on Congress to pass legislation to reform voting law. A similar call came in 2013, as Roberts urged Congress to pass a new version of the Voting Rights Act. Much to the surprise of no one, Congress failed to pass the new bill, and the changes to voting law remained the same—in a deadlocked Congress, Roberts could count on their general inaction.
While the 1971 and 2002 amendments limited individual spending to a sum for each two-year election cycle ($5,200, up to $48,600 total), Todd McCutcheon and his lawyer group could quickly dispatch the limit by using the same constitutional framework established in Citizens United. McCutcheon did Citizens United one better and questioned whether or not there could even be a biennial limit on political donation, under the Constitution (i.e. First Amendment). The decision, of course, was that there couldn’t.
I doubt that the court, although conservative, will fall on the wrong side of history in granting full civil rights to gay citizens, or anything of a more social nature. However, their willingness to dissolve any and all campaign finance reform and regulation might hint at future de-regulating decisions. Perhaps kneecapping Obamacare under pretense of the 10th Amendment, or taking another look, with a conservative eye, at a Wall Street practice begging to be deregulated (the cyber trading that Michael Lewis elucidates in his new book, “Fly Boys”).
The reason to fight the Citizens United and McCutcheon decisions is twofold: First, that people vote for whoever is on the ballot. If you don’t have money, you won’t have a successful campaign to get on the ballot. Instead, everyone else in the race could be potentially handpicked by a single interest, say, a Todd McCutcheon, and those candidates, first and foremost, will be beholden to that interest. When all Democrats and Republicans alike become, truly, nothing more than mouthpieces for the opinions of billionaires, the individual vote means nothing. Less than nothing, even, because the vote would give the illusion of supporting your own interest when in fact there is only another, entirely separate set of interests at stake.
Second, protesting the decision is a protest against the business of the Court. Although nothing will change regarding the 5-4 split until a Justice retires, what can change is the pressure on the court from the public. There is a conscience even among those who are undemocratically appointed for life, I might hope. Right now they have the highest approval ratings of any branch of government—in 2013, a Gallup poll gave them a whopping 46 percent, a far cry from Congress’s 13 percent. When the public unanimously lambastes their decision in the case, as it should, the President (current or future) is pressured to appoint a justice that might conform more closely to public opinion and public interest, while the Senate is pressured to confirm the choice. It’s not a change that happens quickly, but interrogating the reason that we condemn Congress and the President, while leaving the Court relatively unscathed, might be a start.
—Chris Dietz ’17 is a student at Vassar College.