The potential returns on owning the government of the United States are so great, why should not competition for maximizing those returns result in a single winner who can pay the full going price to take it all? The exploitation of its various policy components can be efficiently subcontracted for a price, much like feudal kings subcontracted to the nobility the control of feudal estates in land -- which were the politically-generated asset of that era. As the Court's further campaign finance jurisprudence unfolds, this is now the most relevant question. For the Roberts 5 will eventually address the question that the Court left open by denying certiorari in Danielczyk.
This question could be answered as early as the Court's decision in McCutcheon, due to the way its managers, the parties and the Court below, designed the case as more of a legislative petition than a lawsuit. Now that the Roberts 5 has mostly completed the doctrinal scaffolding that assures government at all levels can be freely bought, and Congress has adapted to the model, the Court may argue, in effect, that it really makes little difference anymore how the elections are bought, as a rationale for denying constitutional significance to Buckley' s distinction between indirect contributions spent for or against candidates ("independent expenditures") and direct contributions to them.
As one academic has said, "Citizens United renders all campaign finance limitations silly and ridiculous." The complex regulations that remain have negligible impact on the systemic corruption of U.S. politics, while they do present barriers to entry to the business of political corruption that the Roberts 5 has created under its "money is speech" banner. Justice Scalia at oral argument in McCutcheon made both of these points. As mentioned above, he complained that "campaign finance law is so intricate that [he] can't figure it out" while also observing that "if gratitude is corruption ... don't those independent expenditures evoke gratitude? It's not that we're stopping people from spending big money on politics." After making the further point that the groups making independent expenditures have an advantage over parties due to the aggregate limits on the latter but not the former, Scalia completes the argument for striking down all controls on money in politics, at least so far as limits on parties are concerned: "I'm not sure that that's a benefit to our political system."
Justice Scalia's argument is a double-edged sword which could also justify the Court withdrawing its counterfactual and dysfunctional ruling freeing all independent expenditures from regulation under the unsupported theory that they do not corrupt, which Scalia now seems to reject. However, when Justice Kagan responded "if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law," it was treated as a laugh line. The Solicitor General more cautiously said "I'm not here to debate the question of whether the Court's jurisprudence is correct with respect to the risks of corruption from independent expenditures." Justice Kennedy tried to push the General into a concession that the question is "settled" and "that's the law," just because the Court once said it was. But the General preserved his higher ground when he responded to Justice Kagan's laugh line with one of his own: "far be it from me to suggest that you don't [change that part of the law], Your Honor."
Overruling the more democratic half of Buckley would be couched by the Court in terms of freeing "speech" (i.e. money), so voters may hear what plutocrats have to sell them without restriction or relief, excepting only those plutocrats so inept as to be caught and prosecuted for quid pro quo bribery . Eliminating all regulation of money in politics could be labeled the "royalist" option since it inherently limits success in the corruption game to those who can invest the very largest sums.
Justices Thomas, Kennedy and Scalia have consistently supported this position, as pointed out by the Danielczyk Petition for a Writ of Certiorari, at 34, which sought such a ruling. It is difficult to imagine that Justice Alito would not agree. Indeed either he or Justice Roberts, or likely both, must already agree with the elimination of one or both aggregate contribution limits, since at least 4 votes were necessary for the certiorari decision to review McCutcheon. There is no conflict between the McCutcheon district court's decision and any circuit court decision, while the factual record is very poorly developed. Four judges would only choose to hear McCutcheon in order to begin, if not to complete, the demolition of limits on contributions in a case well-designed for the purpose of Supreme Court reversal.
The Court normally reverses about 2/3ds of the cases it takes. But since the Robert's Court's special mission in American history seems to be to corrupt its elections beyond redemption, thereby heralding in the second Gilded Age with a Supreme Court membership to match, the probability would have to be assessed as approaching virtual certainty, in this particular case, that the Court will either abandon the aggregate limits on contributions or go the whole way to the "royalist" option of invalidating any limits on contributions whatsoever, just as it has on expenditures. This policy even has the support of one of America's foremost election law scholars.
In a dramatic gesture the chief matador of political corruption, Senator Mitch McConnell himself, symbolically entered the ring to ritually place the sword neatly into the neck of an exhausted democracy. Senator McConnell asked the Court to "revisit the bifurcated standard of review for political contribution and expenditure limits and hold that strict scrutiny applies to both." This is First Amendment legalese for striking down all limits on direct contributions to politicians. In a rare theatrical gesture, reminiscent of Republican Senator Lyman Trumbull stepping outside the Senate to give Reconstruction life support by arguing Ex parte McCardle (1869), Senator McConnell asked for and was given permission to argue this point before the Court, which he did symbolically through his lawyer.
6. Political caution?
Harvard's Prof. Feldman opined that the Supreme Court is "[f]aced with this dilemma of following principle and being condemned as political, or acting out of political caution and being ridiculed as hypocrites." But if McCutcheon is to be described as facing the Court with a "dilemma" it is one that at least four of the justices created themselves, and were only too eager to embrace. Each of the four could have obviated any such "dilemma" by simply voting in accordance with the Court's prudential rules, which clearly pointed toward denying certiorari, and thereby leave the law undisturbed. Since the case is a facial attack this would not prevent the Court from later hearing a challenge to the law as applied in a different case. So it is clear that at least these four are not troubled in the least by counsels of "political caution" that Prof. Feldman thinks might prevail to sustain the lower court's decision.
There is, in fact, little reason why they should be concerned. There is no significant public attention to the crafting of effective strategy -- let alone any effective political action pursuant to such a strategy -- aimed at reining in the Roberts 5's authority to remake election integrity law according to their own political lights. This has undoubtedly instilled confidence in four if not all the Roberts 5. The Roberts 5 embark on their annual ideological foray as super-legislators against any, even if now mostly symbolic, constraints on plutocracy, notwithstanding overwhelmingly adverse public opinion on the merits of the issue itself. Few have challenged the authority of the Court itself as the source of the problem.
The strategy vacuum for mobilizing public opinion has attracted professional activists who advance the counterproductive and futile approach of a constitutional amendment -- which only serves to deflect attention from the culprits: five plutocratic justices. Seeking an amendment blames their victim, the Constitution. Even worse is the most misguided version of an amendment which invokes the antiquated but marketably oxymoronic "corporate personhood" concept. While actually playing no role in any of the Roberts 5's campaign finance decisions, this soundbite has been popularized since Citizens United as if it did.
The Roberts 5 are thus aware that their jurisprudence of plutocracy has to date met with feeble, uninformed, misguided, diversionary, even counter-productive opposition, mostly sending would-be opponents on the extended fool's errand of seeking various poorly-drafted constitutional amendments, primarily by signing petitions that pad mailing lists and sending money to the activists who misguide them. Any of these amendments to date could serve to even further empower the Roberts 5, that is, provided one could be proposed by 2/3 of Congress and ratified by 3/4 of the states -- which would otherwise be all but impossible. Senator Fritz Hollings could not get such an amendment through just the Senate alone, after he tried to do so in eight successive less corrupted sessions of Congress from 1989 to 2003, a time when mounting public sentiment was sufficiently strong and mobilized to obtain BCRA from Congress.
The Roberts 5 surely know what Yale constitutional scholar Prof. Bruce Ackerman - probably the foremost scholar of movements for constitutional change - teaches as common knowledge, as he puts it, among "[e]very constitutional movement ... that Article Five [constitutional amendment or convention] is a road to nowhere, and that it should concentrate its energies on the creation of landmark statutes and judicial super-precedents." 103 Nw. L. Rev. 63, 129-30 (2009).
With opponents who lack even such common knowledge of how to make fundamental change, and with politicians already systemically corrupted by their jurisprudence of plutocracy, the 5 justifiably feel no effective political constraint on their ability to continue their annual assault on election integrity until they consider their jurisprudence complete. They must instead be encouraged by what they see of the opposition. Overturning yet another campaign finance law now almost looks more like an ideological end-zone spike for the Roberts 5 than an important change in the law.
Even if this latest exercise puts no significant new points on the board for plutocrats as a whole, it does celebrate the absence of an FDR to call out and challenge the "economic royalists" and to obtain a "switch in time" and resignation by threatening to pack their court. The Court can also celebrate the lack of any counterpart to the masterfully strategic abolitionist, women's suffrage or civil rights movements, or progressive era single issue movements, to stop their complete triumph of plutocracy. McCutcheon can be seen as their victory lap, consisting of one further unimpeded encroachment on legislative power over the subject of election integrity to firmly cement plutocracy in place.
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