In
response to Senator McConnell's attack on any limits on
contributions, Justice Ginsburg responded that the limits "promote
democratic participation" so that "the little people will count
some, and you won't have the super-affluent as the speakers that will
control the elections." Of course the "little people" are
persons who can now spend more annually than the U.S. median income
on buying politicians. So Justice Ginsburg must have meant to
distinguish by that phrase the "little" plutocrats as
distinguished from her "super-affluent" plutocrats. But Justice
Ginsburg's concern is too close to the prohibited anti-distortion
argument to gain traction with the Roberts 5.
When
asked whether there is no "special influence that goes along with"
a Majority Leader's solicitation of $3.6 million for "all the party
members," Senator McConnell's attorney replied that under "the
Citizens United decision ... gratitude and influence are not
considered to be quid pro quo corruption." This argument going to
the definition of corruption would prove to lie at the very heart of
the case.
The government's lawyer, Solicitor General Donald Verrilli, who has been criticized for his handling of other big cases, made a very useful paradigm shift near the end of his argument. He moved the frame away from the single politician getting enough money from an interested party by indirect means to raise the risk of quid pro quo corruption. Justice Alito narrowly pursued this question with him. But Verrilli chose instead to inform the justices how the real world of systemic corruption of money in politics actually works today. It does not depend on corrupting one individual at a time, as Alito could not seem to grasp.
Verrilli explained that "any candidate who sets up a joint fundraising
committee, says give to me and give to the rest of my team." Such
a solicitation can produce obligingly large funds from a single
contributor that flows through one powerful intermediary to other politicians on the
team who will be needed to fulfill the obligation. Thus retaining the
aggregate limits -- and presumably adding further limits as well -- would deter quid
pro quo
corruption, because the party receiving the large contribution these
days are essentially cartels, or teams, contesting for control of
Congress's salable goods. Such control is necessary to heighten each team-member's
effectiveness as policy salespersons. For example, when selected as
House Speaker, Boehner
was most famous
for distributing tobacco industry money right on the floor of the
House. This symbolized what defines leadership today. Ted Cruz's
candidate and "leadership" committees raised over a
million dollars
in the quarter covering his filibuster, about four times the average
amount needed for an incumbent to get reelected.
Verrilli describes how "the party leaders are often going to be the ones who solicit those contributions, and their authority depends on the party retaining or gaining a majority in the legislature." Since "every candidate is going to get a slice of the money and every candidate is going to know that this person who wrote the multimillion dollar check has helped not only the candidate, but the whole team ... that creates a particular sense of indebtedness." Verrilli did not explain that the congressional party leader, whose job it is to see that his team stays in the majority, or the committee chair who serves a particular profit sectgor, has very substantial favors to dispense in the nature of committee assignments and chairs, and legislative support, as well as money. Withholding of these favors can be used to discipline any team-member who fails to manifest the same gratitude that the party leader feels toward big investors.
Verrilli explains
that "every officeholder in the party is likely to be leaned on by
the party leadership to deliver legislation to the people who are
buttering their bread." Indeed the reality is that each individual
incumbent who is not also a fund-raiser for the party loses party
support. Eric
S. Heberlig and Bruce A. Larson, Congressional
Parties, Institutional Ambition, and the Financing of Majority
Control
(2012)
describe how fundraising
for the party has rapidly replaced more traditional criteria for
advancement and other rewards in Congress. "[A]dvancing [members']
individual goals require[s] their party to hold the majority," for
which purpose "cornering the political money market is essential."
Id. 12, 248.
Alito
responded by taking this analysis, which focuses on what looks like
party fundraising but includes any member like Cruz with leadership
ambitions, to mean that there is no problem connected with
circumvention of base contribution limitations by means of indirect
channeling of large contributions to an individual politician. Alito instead considered the problem to be with the party organization, when
actually it is individual incumbents who are doing the fundraising
for the party, which then distributes large amounts among its members
as necessary to retain the majority status required to deliver the
necessary wholesale legislative favors in return. Though it is not
actually either/or, Alito nevertheless proposed "these
aggregate limits might not all stand or fall together." He thus
suggests that possibly the aggregate limits would be struck down only
as to individuals, but remain in place for parties.
Breyer
tried to rescue Verrilli at this point by tossing him the Article III
(judicial power) softball -- since there was no record on either circumvention or systemic corruption techniques upon which a judicial decision immunizing individuals from aggregate limits could be
factually supported. General Verrilli did not give Breyer and
Ginsburg much help on the Article III issue, other than referring
them to the extensive record compiled for the unsuccessful first
facial attack on BCRA, in the McConnell
case. It is difficult to second guess why Verrilli shrugged off this
issue, but it could be that he knows the Roberts 5 have been
legislating routinely in violation of the separation of powers, and
that although this violates the Court's own prudential rules, it is
really up to Congress to make sure those rules are enforced when 5
justices deliberately refuse to play by the Article III rules.
A systemically corrupt Congress
has shown no inclination to defend its legislative powers from
judicial usurpation with the constitutional tools it has at hand.
Only the dissenting four-judge minority has consistently objected to
the Roberts 5 judges' transgression of their judicial powers in cases
like Bush
v Gore,
Citizens
United,
and Shelby
County. So
separation of powers has been a consistently losing argument in Court. Verrilli may have chosen
to take a pass on the separation of powers issue between Congress and
the Court because the executive branch has no dog in that fight. It
is unfortunate that it does not, because every great President from
Jefferson and Jackson to Lincoln and the two Roosevelts has fought
this battle against judicial usurpation of powers, and either taken,
or proposed, action to stop it.
Judicial
legislation in violation of the separation of powers has been the underlying cause
of political failure through much of American history, just as it is
today. But Verrilli's boss is Barack Obama. So he took a pass on
the separation of powers issue, likely in order to focus on what he
saw as his best potentially winning anti-corruption argument, an argument premised on accepting the Court's own narrow vocabulary for analysis.
That framework is legislative not judicial. Hence as one astute
commentator observed,
the oral argument itself "sounded
as if it were a debate that one might hear in Congress on potential
new campaign finance legislation, rather than a courtroom debate over
the limits of the First Amendment as applied to campaign
contributions."
At
this point Scalia returned to his proposition that there is a lot of
money spent legally in elections not just from judicially protected
independent expenditures, but from parties and PACS and even
"newspapers that spend a lot of money in endorsing
candidates and promoting their candidacy. ...
That is money that is directed to political speech." To impose an
aggregate limit only on parties, according to Scalia, is "to sap
the vitality of political parties and to encourage drive-by PACs
for each election." Scalia then provides an opening for a reality
check when he goes so far as to claim that "when you add all that
up, I don't think 3.5 million is a heck of a lot of money."
Verrilli responds to the opening Scalia hands him with the second lesson of his paradigm shift by refocusing on the cartel. He explains "a party's got to get $1.5 billion together to run a congressional campaign, parties and candidates together, and you've got a maximum of $3.6 million, that is about 450 people you need to round up." The math actually makes it closer to about 420. Verrilli continues, without "the aggregate limits ... there is a very real risk that ... the government will be run of, by, and for those" few political investors. The Solicitor General in this way completes his re-framing the "freedom of speech" vs individual corruption issue into a democracy vs plutocracy issue near the close of his argument. Due to the current plutocratic structure of influence that he describes "the risk of corruption is real. And we think it's in fact profound when you are talking about ... tak[ing] the lid off on aggregate contributions." With this argument the government executes the paradigm shift of identifying the current system created by the Court as risking systemic corruption, and further concentration of plutocracy itself with a "profound" risk of such corruption.
The
whole system created by the Court now runs as a bribery mechanism.
The paradigm of individual bribery that Alito and others assume is
entirely out of date. The government's paradigm shift left the unstated question
to be decided: Will the Supreme Court continue to act as a
super-legislature for the super-affluent by clearing away any remaining legal obstacle to this consolidation of "royal" power
over the former republic? Or will one of the Roberts 5 recoil from the
systematically corrupt plutocracy they have helped to build?
Conclusion
There is little reason to doubt that the Roberts 5 will continue its demolition of election integrity in McCutcheon, a case expertly designed for that purpose. One of them would need to have a conversion experience to deliver a contrary result. The question is how far they will go. As the Roberts 5 remove, either in McCutcheon or in a later case, the final bricks from the demolished and now very low and permeable legislative wall guarding elections and politicians from corruption, it is clearly past time for any who are suffering in one of many ways from, or who may even merely regret, the passing of democracy in America to take action. Such action will be useless if not seriously and intelligently focused on effective strategy to strip the Roberts 5 of jurisdiction, whether to overturn influence peddling prohibitions of any kind or to otherwise usurp legislative powers to act as "the Judge of the Elections," a power which was entrusted by the Constitution, Art. I, Sec. 5, cl. 1, to Congress, and not to the Roberts 5.
The Solicitor General's argument describing a systemically corrupt political system, in thrall to a small and shrinking number of plutocrats, evokes the need for systemic reform along with a thorough rejection of any further super-legislature role for the Supreme Court majority which has either ignorantly or criminally created that system. Though whatever the Court does in McCutcheon will have little importance for the impact on that system of 99% of Americans, what the Roberts 5 says to explain itself will very likely provide reason for targeting justifiable anger at the Supreme Court for having damaged the nation's cherished democratic heritage yet once again.
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