Continuing Judicial Assault on Democracy

By GENE NICHOL

In October, the Roberts Court will hear yet another case designed to allow it to work its unfettered magic on American campaign finance. McCutcheon v. Federal Election Commission will consider whether to unleash billions more dollars into the political system. As Ron White would put it, “now there’s some good news.” 

McCutcheon asks, specifically, whether the almost 40-year-old aggregate limit on the amount any contributor can give directly to federal candidates and parties – now set at $123,200 – must fall. In what will likely be the Court’s most fateful campaign reform decision since Citizens United, there’s little doubt the cap will go.  

Having already laid waste to expenditure limitations in Citizens United, McCutcheon will, for the first time, invalidate a federal campaign contribution limit. It won’t be the last.

Charles Fried, Ronald Reagan’s Solicitor General, has written that the McCutcheon case is “a not very thinly disguised first step to try to get an absolute, anything goes, no limits, regime on campaign contributions.”

It’s hard to believe, to be candid, that the uber-rich have a lot more they want to say politically. But apparently there is a good deal more they seek to buy. And on this potent and democracy-debilitating mission, John Roberts and The Four are just their huckleberry.

One might think the purveyors of cash register politics would be satisfied with a system that allows private equity titans to pay half the income tax rate of fire fighters; gives massive subsidies to corporate farms as it slashes food stamps; and bails out Wall Street while it increases the payroll tax; but not so. More is, after all, better. And all is, apparently, best.

The practical question for resolution in McCutcheon is not whether the federal aggregate limit will perish, but how. Somewhat modestly, the Roberts majority could conclude that an aggregate cap might be permissible, but that this one is too low. [Though one wonders why.]

More likely, and more ambitiously, they could rule that aggregate ceilings – as opposed to caps on contributions to individual candidates – violate the Constitution.

Or, most lustily, the Court’s strongest activists could strike at the wall that has existed between contributions and expenditures for many decades. As Sen. Mitch McConnell (R-Ky.) argued in his brief: the Roberts Court “has not hesitated to overrule decisions offensive to the First Amendment,” citing exhibit one, Citizens United.

Whichever path it chooses, two things are certain. First, if one wants to eventually abolish all limits on campaign contributions, it’s best to start, strategically, with aggregate ceilings. Second, no matter which choice the Roberts majority opts for, it will have nothing to do with the text, the original intention, the structure, the purpose, or the jurisprudence of the United States Constitution. This is politics pure and simple. Loyal and trusted service to the already powerful and privileged. An odd but, Franklin Roosevelt would remind, an ancient role for the United States Supreme Court. 

It also dovetails, perfectly, with this year’s ruling in the Shelby County case – invalidating section four of the Voting Rights Act. There the same justices announced, with keen insight, that the days of racial discrimination in voting are long past us. With the starting flag thus waved, Texas, North Carolina and a bevy of Republican controlled state governments immediately undertook to do exactly what the wise men said they don’t do anymore. No one, not even John Roberts, could have been surprised.

With friends like the United States Supreme Court, the American democracy needs no enemies.

Gene Nichol is Boyd Tinsley Distinguished Professor of law and director of the Center on Poverty, Work and Opportunity at the University of North Carolina and President Emeritus of College of William & Mary.

From The Progressive Populist, October 15, 2013