It constitutes a blatant and unconstitutional act of judicial legislation for the Supreme Court to decree that the public has no valid concern in criminalizing more sophisticated forms of public corruption that may fall short of the shifting legal definitions of bribery -- a crime which is notoriously difficult to prosecute -- but which nevertheless have the same ultimate effect on undermining democracy and public integrity. Such a proposition is nowhere remotely suggested by any text in the Constitution, or its history, and obviously not by the phrase "freedom of speech." The survival of the consent of the governed cannot hang on the willingness of a perennial plutocrat like Sheldon Adelson, as described in the New Yorker, "to write large checks to politicians without receiving assurances that, if elected, the recipients will dutifully oppose online gambling and a two-state solution."
Roberts, as the Court has done in every decision legalizing political corruption, hides his judicial legislation behind a distorted interpretation of the abstraction embodied in the three words "freedom of speech," claiming that those three words allow the Supreme Court to mandate a system where elections may be freely purchased by plutocrats. Justice Breyer points out the original purpose of the First Amendment was to enable the People "to form a public opinion that can and will influence elected representatives." Corruption does not enable but rather undermines such freedom of speech. Breyer explains:
"Corruption breaks the constitutionally necessary 'chain of communication' between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress' concern that a few large donations not drown out the voices of the many."
After McCutcheon, corruption can theoretically trump the effective speech of all but those 400 plutocrats who already own as much wealth as half the nation. They can now legally steal even more from the other half by dominating the Supreme Court's lucrative pay-to-play system, without any regard for what the public may think or say about the policies enabling their plunder. Neither the Constitution nor any law of Congress gave the Court the authority to create such a system. But there is no obstacle on the horizon designed to stop them.
Justice Breyer's dissent demonstrates in several hypotheticals how, in the absence of aggregate limits, the PAC system can be used creatively by a single contributor to channel to a candidate all the money needed to win an election. Such manipulation, contrary to the view of Roberts who simply brushes aside this salient fact as unlikely to occur in practice, can easily violate even the Roberts-endorsed quid pro quo bribery interest. Surely a sole contributor can be expected to demand and systematically receive nearly anything a wholly-owned politician has to give, just as plutocrats owned politicians in the first Gilded Age. To support his argument that all will be well under his expanded license to corrupt, Roberts also blithely relies upon "the intricate regulatory scheme" of FECA, without any recognition that the agency with authority to enforce that scheme has proven to be an impotent paper tiger.
More importantly, Roberts provided no adequate response to the Solicitor General Donald Verrilli's most powerful point in oral argument: the model of individual bribery that the Roberts 5 justices address is a thing of the distant past, having been replaced by systemic corruption facilitated by the parties. Without "the aggregate limits" Verrilli explained "there is a very real risk that ... the government will be run of, by, and for those" plutocrats who help put the "$1.5 billion together to run a congressional campaign, parties and candidates together."
Roberts quotes Buckley (1976) to support his truncated concern with the "'abuse inherent in a regime of large individual financial contributions' to particular candidates." This sort of retail corruption, recently depicted in the film American Hustle, was the problem in 1976, when political corruption was pursued one politician at a time. But now, several decades after Buckley legalized wholesale corruption, we have parties that are systemically corrupt and operate as shakedown gangs and rent-a-parties. All within the law, corrupt policies are now sold at the party level where actual results can be routinely and efficiently delivered to those who pay large sums toward offsetting the $1.5 billion needed for a governing party to win control. Control of Congress provides policy products to sell, which in turn enables incumbents to raise enough money to blanket the mass media with enough lies and deception to remain in office, notwithstanding the extreme public disdain for Congress as a whole.
The party now acts as an enforcer of this corrupt system by recruiting ambitious incumbents to dial for dollars nearly full-time as the price for powerful committee assignments, legislative influence and "leadership." Snagging $3.6 million each from a few of the 400 plutocrats will give both the fundraising incumbent and the contributors of such amounts more focused clout with the governing party's leaders who control and sell the political agenda. Verrilli explained that "any candidate who sets up a joint fundraising committee, says give to me and give to the rest of my team." Breyer understood that "large contributions from wealthy donors ... will help increase the party's power, as well as the candidate's standing among his colleagues." Party leadership is no longer earned, it is purchased by leadership PACs funded by plutocrats.
Roberts closes his opinion by addressing this reality as merely a "new rationale for the aggregate limits" rather than a new reality that supersedes his convenient but mismatched paradigm of retail corruption borrowed from the distant past. The new reality of systemic corruption shakes the foundations of the whole small-bore edifice of his plutocratic jurisprudence. He claims, without offering any cogent reason, that Verrilli's "new" rationale "does not wash." Roberts does accurately observe that this concern with the reality of wholesale corruption is different than the Court's historical, but now long-outdated, concern with retail corruption addressed in Buckley. He worries that the concern with systemic corruption "dangerously broadens the circumscribed definition of quid pro quo corruption articulated in our prior cases, and targets as corruption the general, broad-based support of a political party." Roberts then states the further truism that effective regulation of such party-based corruption "would dramatically expand government regulation of the political process," as if that were a self-explanatory reason not to undertake the regulation of this " dangerously broaden[ed]" and far more effective and pervasive system of corruption.
There can be no question that it will take a far more comprehensive legislative effort, what has been described as a "big bang," to rid the country of the systemic corruption that defines the New Gilded Age plutocracy created, and faithfully maintained, by the Supreme Court majority. Systemic corruption affects every aspect of government and policy. Movement Republican Peter Schweizer, Extortion: How Politicians Extract Your Money, Buy Votes, and Line Their Own Pockets (2013) 8, 122 writes: "Every aspect of regulatory life is now involved in the extortion racket." Such a system is not easily rooted out.
The piecemeal reforms to which Roberts would limit Congress are ineffectual against systemic corruption, and often counter-productive. The scope necessary for reform of a systemically corrupt government to be effective is certainly no reason, as Roberts implies, to make the problem worse. It is far more reason to turn back over to Congress this now vastly more expansive task of cleaning up what is now an exponentially larger mess than the Court found in 1976, when it first started violating the political question doctrine to tinker with election integrity. It will take the equivalent of the PATRIOT Act and a renamed Homeland Integrity department both re-targeted at the corrupt takeover of the government by plutocrats to restore government to We the People. It is time for these security forces to begin fulfilling their oath to support the Constitution.
The Solicitor General had pointed out that by eliminating the aggregate limits the Court will make it easier for smaller numbers of plutocrats to buy the parties which deliver actual results in the corrupt system that exists. By limiting legitimate concern solely "to particular candidates," without any explanation except that is how the justices have always viewed the problem, Roberts willfully chooses to inhabit a different world than the real world of systemic corruption knowledgeably described by the Solicitor General. Left in his imaginary world without a functioning operational paradigm, Roberts therefore does not acknowledge the contraction of the size of the ruling class that McCutcheon effectuates. He deliberately ignores the reality of systemic corruption which simply does not exist in his frozen 1976 worldview.
Roberts' outdated view of the most important issue facing the country -- an national emergency self-inflicted by the Supreme Court -- is reminiscent of F.D. Roosevelt's attack on the "horse and buggy" theories of judges which he sought to remedy by adding new judges who would "infuse new blood into all our Courts." Roosevelt identified the same problem with the 1937 anti-New Deal Supreme Court that currently infects the Roberts Court: its failure to "presume in favor of the validity [of a law] until its violation of the Constitution is proved beyond all reasonable doubt," quoting this well-accepted doctrine from the separate opinion of George Washington's nephew and heir, Justice Bushrod Washington in Ogden v. Saunders (1827). As early as Hamilton (Federalist, No. 78) it was understood that only in the event of "irreconcilable variance between the two ... the Constitution ought to be preferred to the statute." By violating this venerable rule, Roosevelt explained, "the Court has been acting not as a judicial body, but as a policy-making body." The judicial supremacist Roberts 5 has recreated the same constitutional crisis as the one Roosevelt described and mastered in 1937 in order to sustain his New Deal program.
Breyer invokes this illegitimacy of the Court's unsupported speculations that the aggregate limits do not serve a legitimate governmental interest in controlling political corruption. He notes, in a judicial euphemism for saying Roberts either does not know what he is talking about or is deliberately dissembling, that "this Court's expertise does not lie in marshaling facts in the primary instance." Not only did Roberts fail to "prove beyond all reasonable doubt" that aggregate limits violate the Constitution, he does not even bother following the necessary judicial processes by which such proof could be legitimately assessed by the judicial branch. Breyer's substantially less than "blistering dissent" stops short of drawing the necessary conclusion that the Roberts 5 are therefore acting beyond their constitutional judicial powers in McCutcheon. According to Madison ( Federalist 47): "The accumulation of all powers legislative, executive and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."
The lower Court decision was deliberately constructed by movement Republican judges to avoid any fact-finding at all by dismissing the case solely on legal grounds. Otherwise, Mr. McCutcheon might have been subject to cross-examination on precisely how buying more politicians would provide him more "free speech" rather than more profits. He may have been asked about policies he purchased in the past, and profits made. Previous test cases like this one often involved newly formed organizations in order to avoid such questions and keep the facts on an aspirational and theoretical plane remote from the grit of political corruption.
Breyer points out that in every previous case involving such a fact-free record the Court remanded to the District Court for judicial fact finding to adduce evidence that would justify rejecting Congress's politically more legitimate findings to which deference is traditionally owed. In this case five justices were content to simply invent whatever facts they needed to spin their unsupported legal arguments. These five judicial supremacist justices made no pretense of making legitimate judicial findings of fact that should be worthy of any deference by the elected branches.
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