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John Roberts Shows He Has No Idea How Money Works in Politics

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Shaun McCutcheon is the kind of donor that the Republican Party can’t get enough of. The CEO of Coalmont Electrical Development in McCalla, Alabama, McCutcheon made a small fortune from his work in the mining industry and dedicated much of his life to electing Republicans. The Chairman of the Alabama State Republican Party said that McCutcheon was great at “supporting conservative candidates, getting conservatives elected to office.” Upset that he couldn’t donate more than the federal limit of $46,200 to individual candidates, he teamed up with Senator Mitch McConnell at a CPAC conference in 2012 to launch the latest assault on campaign finance law.           

In today’s Supreme Court decision, the Roberts Court, in another 5-4 decision, tore down the aggregate donation restriction. Going forward, donors like McCutcheon can donate up to $3.6 million per cycle, as long as the donations are done in $2,600 blocks to individual candidates.

In reality, the case may not have a huge impact on elections. By tearing down any restriction on the amount that an individual can donate to a Super PAC, Citizens United already opened the spigot on unlimited money in our electoral system. Today’s decision builds on Citizens United but the harm to democracy has already been done. 

What is striking about the opinion is how completely off-base Chief Justice Roberts is in his understanding of the role of money in politics. Roberts struck down the law, framing the attempt to limit the flow of money into politics as an attempt to stifle unpopular speech. Just as the First Amendment protects, “flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” For the Roberts Court, wealthy donors are under attack as a minority and need the protection of the Supreme Court. Under the Citizens United framework that money is speech, the court in McCutcheon struck the aggregate limit as a violation of the First Amendment.

The Court comes off as remarkably uninformed when it comes to the relationship between wealthy donors and elected officials. Roberts says that legislation cannot seek to limit what he calls the “general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Roberts said “spending large sums of money” would not “give rise to such quid pro quo corruption.” The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of “dependence corruption” in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence. 

The reality, as Justice Breyer stated from the bench, is that the decisions in Citizens United and McCutcheon “eviscerates our nation’s campaign finance law.” We are left with an inability to regulate the flow of millions into the campaign finance system and a Court that is unwilling to stand up to anything but the most blatant forms of corruption.

Conservatives will celebrate today’s decision as a victory for the First Amendment but the reality is that the right to political speech is under assault from the torrent of money pouring into our elections. This is a point that Justice Breyer captured in his dissent; “Where enough money calls the tune, the general public will not be heard."

The Supreme Court is now controlling how the Congress can limit the electoral process but, remarkably, not a single Justice has ever held elected office. Since Justice Sandra Day O’Connor, a former State Senator in Arizona, resigned from the Supreme Court in 2005, we have not had a Justice with any experience in elected office. Since she left the Court, Justice O’Connor has openly critiqued the decision in Citizens United, and has argued “we’re in a bit of trouble in this whole area.” While putting elected officials on the Supreme Court has fallen out of fashion, due in part to the extensive voting records they are forced to defend, the Court’s decision in McCutcheon is a reminder that it may be quite valuable to have a Justice who can tell his or her colleagues how a campaign actually works and the impact of money in our electoral system.

If there is any silver lining in this decision, it is that it can help to draw public attention to the outsized role that large-scale donors are playing in our electoral process. The backlash to Citizens United demonstrated that the public does care about this issue and after today’s decision there will be a demand for further action. The decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system; all we have left, as Justice Breyer noted today, is “a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” We are living in a brave new world of elections, a world where millionaires and billionaires speak loudly and the rest of us do the listening. 

Sam Kleiner is a fellow at Yale Law School's Information Society Project.