Before 2010's notorious Citizens United stirred up public attention to the Roberts 5 plutocracy project, the 5 had already decided three cases that fatally wounded campaign finance laws, by:
1) prohibiting states from setting sufficiently low limits on election spending and contributions that might have allowed, say, some of the upper middle class to compete financially in funding and influencing candidates, Randall v. Sorrel (2006);
2) giving corporations and others the unlimited capacity to buy elections under the thin disguise of sponsoring "issue" ads, FEC v. Wisconsin Right to Life, Inc. (2007); and
3) helping plutocrats like New York's Mayor Bloomberg buy their own elections with their personal fortunes, while also implicitly undercutting any effective public financing of elections. Davis v. FEC (2008).
Immediately after the 2008 presidential election seemed to threaten a new direction for appointments to the Court, the Roberts 5 voted to hear a case that would become the Court's centerpiece campaign-finance ruling, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The narrow question presented in Citizens United about the legality of subsidizing with an indeterminate amount of corporate money the pay-per-view broadcast of a non-profit's anti-Hillary Clinton video, which was arguably an extended "issue ad," was expanded in scope by the Court for a rare summer re-argument after oral arguments were heard in March 2009. While the outcome of the case was never in doubt, the Court signaled it wanted to use the case to make a far broader legislative ruling beyond the narrow facts of the case, in time to influence the 2010 elections.
A filibuster-proof 2009-10 Senate Democratic majority -- which was lost by a February 4, 2010, Republican upset in the contest for the remainder of Ted Kennedy's term -- briefly threatened to reverse the current Court's 5-4 balance in favor of plutocracy. The ultimate decision in Citizens United on January 21, 2010, allowed unlimited electioneering expenditures, whether made by for-profit corporations or anyone else, if considered "independent" of the candidate. Citizens United acquired name recognition, although elections were already awash in money, including corporate money, before the Court allowed corporations this fuller participation in influence peddling.
Certain doctrinal developments signaled in Citizens United were more important than the case decision itself, which had the fairly modest impact of authorizing Super Pacs, which made exclusively "independent" expenditures, to receive around 12% of their funds from for-profit businesses. These changes included the Roberts 5's:
counter-factual decree, unsupported by any judicial fact-finding process, that the Constitution must be read to establish for all time, in all contexts, and without specific definition of the term, that any political investments capable of being labeled "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption;"
confining of legislative power over political corruption solely to the prevention of bribery and not to influence peddling of the "undue influence" variety;
instruction to Congress that the Constitution does not permit it to foster equality ("anti-distortion") in its regulation of election integrity; and
blatant violation of the constitutional separation of judicial from legislative powers that the Court's reversal of legislative fact-finding and law-making on these essentially political questions involves.
The next year, 2011, the Court, without much fanfare, fulfilled the promise of Davis by gutting Arizona's exemplary public-funding initiative, thereby preventing the public from taking effective countermeasures against corruption through a system of matching plutocrats' electioneering expenditures dollar for dollar. Arizona Free Enterprise Club (2011) accords a plutocrat-supported candidate the all but certain confidence of winning the power to repay investors by outspending any amount of funding fixed for a publicly funded candidate. Exceeding what a challenger spends by about 200-300% buys an incumbent more than a 90% chance of victory .
In 2012, again without much public attention, the Roberts 5, in American Tradition Partnership v. Bullock, 567 U. S. (2012), suppressed the prairie rebellion threatened by the Montana Supreme Court's courageous and well-reasoned refusal to apply Citizens United to state elections. This "very important sequel to Citizens United," which would have allowed states and local governments to opt out of the system of corruption mandated by the Court for federal elections, was egregiously mishandled by Montana's then Attorney General, now Governor, Steve Bullock. AG Bullock violated his oath of office to uphold the Constitution, Art. VI, cl. 3, if not also legal ethics, by adamantly refusing to raise Montana's constitutional state's rights defenses.
AG Bullock's office refused to give any credible explanation for sacrificing what even he seemed to admit was the state's most effective argument for defending its challenged law. The Court therefore reached the expected conclusion, in the absence of an assertion by Montana of the available distinctive state issue to support its Supreme Court's decision, that there was no constitutionally relevant difference between Montana's anti-corruption law and the similar federal law overthrown in Citizens United. Justice Breyer's dissent on behalf of four justices who voted against any review on the merits of the Montana Supreme Court's decision proved that securing the vote of just one of the Roberts 5 for denying review on constitutional states rights grounds could have won the day for Montana, and for democracy.
At least four of the Roberts 5 had each in other less compelling contexts applied state sovereign immunity to protect a state from Supreme Court jurisdiction over such suits. Just a year after its Montana decision, in Shelby County v. Holder (2013), the Roberts 5 would strike down what it viewed as federal interference in state elections under the 15th Amendment which had revoked states' rights to descriminate. Quoting a 1970 ruling. the Court held that "the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections."
The Montana Supreme Court plainly showed that the state's sovereign interest in enforcing its election integrity regulations was profound. The State had recovered its democratic sovereignty from corrupt Copper Barons, and then protected it for a century, due to Montana's now federally-invalidated 1912 anti-corruption law. Montana's unclaimed right not to be hauled into any federal tribunal to defend a suit that strikes at the heart of such a sovereign interest possessed the potential to place a Montana Rockies-sized constitutional obstacle in the way of the Roberts 5's further corruption of state elections and, derivatively, federal elections as well. But AG Bullock's incompetent handling of the state's venerable constitutional defense to any federal court interference in its sovereign elections allowed the Roberts 5 to make a molehill out of the case by summarily reversing the Montana Supreme Court decision, without even according Montana the sovereign dignity of a plenary hearing at which AG Bullock might have made a last-minute course correction of his litigation error. The Court's quick disposal of the case cut off that opportunity and also dampened public knowledge of its important anti-state's rights decision in service of plutocracy.
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