With Liberty and Justice for Sale.
Yesterday the Supreme Court of the United States issued a ruling so corrupt, so fundamentally wrong that one has must go back over 150 years to find its equal. To find a decision so blatantly dishonorable and clearly orchestrated to produce a desired end its only equal is the year when President Pierce stated no efforts must be made to overturn a SCOTUS decision. A few months later incoming President Buchanan took time at his inauguration for a sidebar conversation with Chief Justice Taney. Buchanan then announced as part of his Inaugural Address that he was prepared to honor whatever decisions the Supreme Court made and treat them as the unalterable law of the land. Three days later Taney announced that slaves would remain enslaved no matter how long they lived in free territory as long as they were purchased in slave territory, that the Missouri Compromise was unconstitutional, and that Congress had no authority to limit the spread of slavery into the territories or any states that should be incorporated from them.
Yesterday, in spite of the fact that 80% of Americans saw the Citizens United decision as fundamentally wrong, Chief "Justice" John Roberts proclaimed that money can only be seen as corrupting if there is a provable prior arrangement to trade money for a given outcome. True, the majority left in place a pale ghost of restrictions on campaign contributions, but just as Citizens United was carefully crafted to lay the groundwork for a further assault against campaign financing restrictions, McCutcheon v FEC gives a clear map toward future lawsuits which can be expected to sweep away any restrictions on open purchase of the government of We the People.
As Richard Hasen argues, the decision is pretty awful insofar as it ignores precedent and opens the door for the next challenge to campaign finance reform (and the next one after that). Without even acknowledging that it is doing so, the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle. But the opinion also offers up such a supremely cramped notion of “corruption” as to rely almost exclusively on the quid pro quo bribery favored in the Gilded Age, wherein robber barons casually left fat sacks of cash around in exchange for political influence. Roberts has not been historically blind to the effects of public outrage on the legitimacy of the court; indeed, some have argued that this was the reason for his vote in the health care cases. So it’s interesting to read his opinion today as a meditation on electoral corruption, or what electoral corruption might look like to the rest of us. What does Roberts think Americans are worried about in the current political climate? Well, it seems we’re worried about how to most effectively spend our billions.
Roberts honestly seems to inhabit a world in which what really worries the average Joe about the current electoral regime is not that his voice is drowned out by that of Sheldon Adelson, but that he might be forced to spend his millions “at lower levels than others because he wants to support more candidates” or that he is too busy making billions of dollars at work to volunteer for a campaign, or that he has Jay Z and Beyoncé on standby to perform at a house party in the event that his billions are tied up elsewhere this week.
Really, it’s weird. The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment. We. All. Know. This. So how can the chief justice blithely assume the following:
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 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.
And since the chief can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption—or appearance of corruption—afoot.
What's truly sad about this is the transformation of thought among rank and file Conservatives on this subject. In the immediate aftermath of Citizens United 80% of all Americans and 76% of Republicans opposed the ruling, and 72% supported Congressional action to overturn it. Today, because Conservatives are willing to do whatever they believe will aid Conservative electoral success most will cheer a major expansion of open corruption in government.
“I freed a thousand slaves. I could have freed a thousand more if only they knew they were slaves.” – Harriet Tubman