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.