Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.


  1. Thanks. I guess this insures that we will have “The best government that money can buy”
    How on earth to we come back from all of this?

  2. Well, Pat, Albert Einstein said it was over in 1949. Princeton University confirmed it in the 80s as did Noam Chomsky. Thomas Piketty wrote an economics textbook about it several years ago and pinpointed our current state of economic affairs began in 1980 under Ronald Reagan.

    The problem is an economic one. Therefore, the solution must be an economic solution.

    You can’t fix economic solutions when you are fighting over social and political issues. Those are called convenient distractions – smokescreens.

    We’ll not get very far until Americans turn off their TVs and stop watching football and Kardashian booty. Until we have a press that can seek the truth and share it with us, we will continue to be divided by the next shiny bright objects.

    Sadly, we’ve had decades to right the ship but haven’t. We are now facing climate catastrophe leading to extinction though we may be saved from that harrowing experience by nuclear armageddon which seems more likely. Maybe if we eliminate enough humans, with nuclear warheads, our CO2 problem will be remedied overnight.

    Otherwise, take your pick, we burn up in space or kill each other with nuclear weapons?

  3. Excellent article.
    I am reminded of a quote from one of Ken Follett’s novels: “I am now a politician. I serve those who best serve me.”

  4. One of your most remarkable gifts, Sheila, in writing these daily reflections is your ability to combine your knowledge of law and political science, history and journalism. Today’s article draws on all those strengths. I wish the message weren’t so deeply sobering.

  5. Roberts couldn’t lead the way to a well marked exit, much less lead the justices to any sort of rational decision making. He is more concerned about the court’s reputation than about the dismal decisions his court is piling up.

  6. I see less and less of Anatole France’s idea of the law as the days go by. There is not much “majestic equality” for the homeless sleeping under the bridges, nor the poor begging at the entrances to Walmart, nor the hungry shoplifters at the local Kroger’s. Laws that allow Supreme Court justices to openly violate every ethical rule in the book and then give them voice to bitch about things just not being the same since Ginsberg left the scene are anything but “majestic”.

  7. In addition to opening the door to straight-up quid pro quo corruption (despite what might be said in the opinion), I can see a huge opportunity for money laundering. YUGE. Especially if there are no limits on how much a candidate can loan to his or her campaign. And if there are such limits, I’m sure those will be the next to go.

  8. This is the problem and why SCOTUS’s ruling is purely delusional and devoid of reality. As an independent court, they have failed. So has the free press because the Fourth Branch of Government was established to hold the government accountable to the people.

    Democracy isn’t “failing.” It has already failed.

    “The United States is the world’s largest enabler of financial secrecy, surpassing notorious tax havens like Switzerland, the Cayman Islands and Bermuda, according to an analysis by the Tax Justice Network released today.

    For the first time, the U.S. tops the biennial Financial Secrecy Index, TJN’s global ranking that measures how much each country’s financial system promotes money laundering and the shielding of assets. Rounding out the top three in this year’s index are Switzerland and Singapore.”

  9. The court is just a mirror of our country that has “lost its way”. I encourage all to read the last two chapters of Madeleine Albright’s last book, “Fascism – a Warning”, 2018. One is about “The Former”; the last talks about what could happen…and is now happening. What a President she would have made…

  10. Ahhhh, I’m so glad the uber-wealthy (and Supreme Court Justices) can’t sleep under bridges either. How comforting.

  11. Prof. K: Only a comprehensive public campaign funding system
    can drive out the Big Money corrupting our politics. Please post
    any plan you might have to secure such reform. Let’s compare!

  12. We are being led further and further down the road towards the destruction of liberal democracy by equating money and speech. In today’s society, with copious channels of pervasive and persuasive delivery of advertising content of all kinds, wealth invested in it brings huge returns in the ability to direct the herd.

    We all like to think that we are above being led, that we are individually independant souls, but the statistical facts don’t see that at all in us collectively. We are readily available to the wealthy for whatever, including giving up our liberal democracy when it stands in the way of wealth redistribution up.

    Conservatives and liberals know that but freedom is a liberal concept so they resist more. Conservatives prioritize winning financially so the whole process is invisible to them.

  13. Tom Strong – what’cha been smokin’? Ain’t gonna happen…use your energy to beat MAGA.

  14. As a very very last resort we can pack the court and reverse Marbury v. Madison, replacing the court’s members with a Commission on Liberal Democracy. The Cruz case amounts to an amplification of Citizens United and is an open invitation to legalized money laundering.

    Let’s do something I didn’t want to do but now want to do: Expand the court by four justices and reverse some of this court’s democracy-destroying decisions. I don’t remember electing the Federalist Society to choose a court that is making political decisions Republicans don’t have the numbers to do legislatively. Let’s have majority rule for a change.

  15. Gerald – what’cha been smokin’? Ain’t gonna happen…use your energy to beat MAGA.

  16. What I find fascinating, the courts can continue to relitigate and reinterpret laws that have been deemed acceptable and passed by Congress.

    Affirmative action can be demonized and eradicated from the books because it might give a minority an advantage? An advantage over white folks? Then, turn around and support some minority movement by white folks for the most part, to take control of over 50% of the populations personage?

    The courts can jam their hands in the pockets of the average citizen, but tell a small minority of wealthy, don’t worry about it, hide your money don’t pay taxes. Somehow wealthy seem to be able to deduct depreciation on their property taxes, or, find loopholes to pay no property tax at all!

    The family that developed the Philips head screwdriver has a huge mansion and one of the suburbs down the line. The main hallway is the length of a football field! They pay $700 in property taxes every year. Because they claim they allow their land to be used once or twice a year by bird watchers! I pay $10,000 a year, and, I’m retired with a fixed income. It’s gone up 50% in the past 4 years. But I am not allowed to use the open space tax loophole for my property, because it’s only 3/4 of an acre. Every single benefit that could help the average citizen is unavailable for the most part.

    We like to call this a democracy, but, it never has been! It never has been about freedom, fairness or equality! But, it definitely has been about power and control! What did Ian Fleming say? “The truth is shielded by a bulwark of lies” or something to that effect? Supposedly the truth is too complicated for the average sap, so a lie would be a better choice!

    All of this governmental sleight of hand, all of this obscuratism, just keeps people misdirected, confused, fighting amongst each other, taking attention away from where it needs to be! Everyone’s looking for the boogie man under the bed. In the meanwhile, the wealthy just keep looting the public treasury, and the government gives them the big assist!

    Keep people angry about gas prices, keep them angry about the cost of food, keep them angry about the taxes, keep them angry about anything at all! That way they will not focus their attention on the politicians as much. When you’re trying to live your life, when you are living hand to mouth, it makes it difficult to get involved in some sort of political movement. This is nothing new, our government’s been doing it in a cyclical fashion for centuries. 100 years ago, we had to great depression! The wealthy had driven that fiasco. And the wealthy are driving the next one.

    If you are betting on government or humanity in general to fix everything? That dog don’t hunt! You might as well brace for impact and stick your head between your knees! There won’t be a nuclear exchange, the world is too afraid of that. But society will collapse on a global scale! There will be functional governments in a way, but the people are going to be wailing in agony! Authoritarian, nationalistic, fascist, pick your poison!

    Things could be done, but unfortunately, governmental leadership seems oblivious and actually neutered when it comes to taking any sort of proactive action. Bad things are afoot, as Rachel says, mark this space.

  17. Yes! Reagan, again, and justly so!
    We are the biggest Banana Republic in the world. Does that make America great, again?

  18. Golfers do not like rain. Farmers love rain. One contributes nothing for the greater good. The other fills our grocery shelves with our daily bread. Guess who uses more water. Just add politics and you understand it all.

  19. “…take your pick, we burn up in space or kill each other with nuclear weapons?”

    I expect the Atlantic Sturgeon, swimming the Potomac River since the time of the dinosaurs, will survive.

  20. Thats correct. The liberal media plus big tech hid the Hunter Biden scandal. The Russian Dossier which is epically bigger than Watergate was peddled by the liberal media…..All to oust a billionaire President that was cuddled by celebrities to run for President, those like Whoopi Goldberg, Jon Stewart, and Stephen Colbert. Energy independence allowed people economic freedom.
    However the propaganda keeps the black community redlined without an ability to climb out of poverty, keeps them out of colleges, inable to invest as their dollars now go to fight inflation.
    We fought a war against Trump and those that truly lost are those that have no economic speech.
    What will become of those I served for two decades? Will the government continue to fail them like it is doing now? Abortion centers populate their communities… why? The disadvantaged have no economic speech because the real replacement theory is already in place today.

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