McCutcheon, Citizens United, the Supreme Court, and “The United States of John Roberts”


Back in November of 2010, I wrote an article for Res Ipsa Loquitor titled Citizens United Ruling Brings on “Tsunami of Sewer Money.” In it, I quoted a question posed by Joe Conason in a Salon article he wrote about Citizens United : “Was the Supreme Court ruling in Citizens United naively mistaken–or cynically partisan?”

In his Citizens United opinion, Justice Kennedy wrote, “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Karl J. Sandstrom, a former FEC commissioner who provides advice to Democrats on election law didn’t seem to agree with Justice Kennedy. Sandstrom said: “The biggest change this year is that it is no longer possible to identify the individuals who are responsible for funding election communications.” Sandstrom believed that Justice Kennedy’s opinion was naïve and reflected a “very uninformed view of how disclosure works.”

Conason thought that Kennedy and the other conservative Justices on the Court never attempted “to inform themselves about the realities of donor disclosure before overturning the century-old restrictions on corporate cash.” He contended that the Justices could have easily discovered that under Section 501 c (4) of the IRS code nonprofit groups are permitted to register as “social welfare” organizations. That allows the groups to support “independent” campaign advertising without being required to disclose the names of donors—as long as political activity is not their “primary activity.”

David G. Savage thought that Kennedy and the Justices who joined him in the majority were wrong. In a Los Angeles Times article, Savage wrote the following:

“Because of loopholes in tax laws and a weak enforcement policy at the Federal Election Commission, corporations and wealthy donors have been able to spend huge sums on campaign ads, confident the public will not know who they are, election law experts say. Corporate donors have been able to hide their contributions despite the opposition of shareholders and customers—the very groups cited by Kennedy.”

Savage also pointed to the high court’s ruling as helping to fuel the rise of a number of nonprofit political actions groups—like Karl Rove’s Crossroads GPS.

We now have the recent Supreme Court ruling in McCutcheon. It certainly does appear that our country’s campaign finance laws may have been “eviscerated”—as Justice Breyer appears to believe. Breyer wrote in his McCutcheon opinion that the ruling “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Dahlia Lithwick (Slate), in writing about Chief Justice John Roberts after the court’s ruling in the McCutcheon case, said that it seemed weird: “The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment.”

Amy Davidson (The New Yorker) said that Roberts relied on a very narrow measure of corruption in the McCutcheon ruling: “Ingratiation and access … are not corruption.” She added that the argument, in effect, is that political parties themselves cannot be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.”

United States of John Roberts (Mark Fiore)

Roberts wrote, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” Roberts explains what isn’t “quid pro quo” with regard to spending large sums of money on elections:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.

Amy Davidson (The New Yorker) wrote the following after the McCutcheon ruling:

Citizens United or no, McCutcheon will set up a large-scale experiment in how money is used and passed around, with new kinds of mega-bundling, and how coördinated donations either impose uniformity on a party’s far-flung candidates or help to solidify regional or ideological blocs. It may be a different kind of leveller than Roberts imagines; it could also be a way to financially fuel intra-party civil wars. And that is quite separate from the new potential for influence peddling. Instead of targeting a single Congressman, you can try to buy off a whole committee.


Chief Justice Roberts and McCutcheon v. Federal Election Commission (Res Ipsa Loquitor)

Citizens United Ruling Brings on “Tsunami of Sewer Money” (Res Ipsa Loquitor)

The predictable tsunami of sewer money (Salon)

Corporate campaign ads haven’t followed Supreme Court’s prediction (Los Angeles Times)

Justice Roberts Hearts Billionaires: The chief either doesn’t believe, or doesn’t care, that money corrupts politics. (Slate)

The Devastating, Sneaky Genius of John Roberts’ Opinions: His McCutcheon decision pretends to be mild but then wrecks what remains of campaign-finance law. (Slate)

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact (Moyers & Company)

Justice Roberts Defends the Embattled Rich in McCutcheon (The New Yorker)

The John Roberts Project (The New Yorker)

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8 Responses to McCutcheon, Citizens United, the Supreme Court, and “The United States of John Roberts”

  1. RTC says:

    How did you do that?

  2. Elaine M. says:


    How did I do what?

  3. RTC says:

    Frankly, I think Conason gave the majority too much credit by saying they didn’t bother informing themselves about the realities of undoing campaign finance restrictions. At best, they’re guilty of willful ignorance.

    I haven’t read the McCutcheon decision, so the parts that are quoted here strike me as insanely facile in their logic. Like saying things will just work themselves out.

  4. RTC says:

    No, I mean, uh, I was on the other site and it linked to this page. Not that I’m complaining, mind you, it just strikes me as incredibly sophisticated, that’s all.

  5. Elaine M. says:


    When I link to an article previously posted at RIL, it shows up as a comment at RIL. It happens automatically. Taint nuthin to do with sophistication!

  6. RTC says:

    Pretty cool, nonetheless.

    I’d be interested in reading more legal analysis about electoral process as a result of these campaign finance decisions; about the dissents, where they got it right, where they got it wrong; and what the possible cures are, other than a constitutional amendment.

    Anybody know a good lawyer?

  7. Elaine M. says:

    John Roberts and the Color of Money
    Applying the history of white supremacy in America to the Supreme Court’s McCutcheon decision
    Tom Levenson
    Apr 16 2014

    There has been plenty of talk about the Ta-Nehisi Coates-Jonathan Chait argument over the term “black culture” in the context of the ills of poverty and the question of progress as seen through the lens of the actual history of America.

    A drastically shortened version of Coates’s analysis is that white supremacy—and the imposition of white power on African-American bodies and property—have been utterly interwoven through the history of American democracy, wealth and power from the beginnings of European settlement in North America. The role of the exploitation of African-American lives in the construction of American society and polity did not end in 1865. Rather, through the levers of law, lawless violence, and violence under the color of law, black American aspirations to wealth, access to capital, access to political power, a share in the advances of the social safety net and more have all been denied with greater or less efficiency. There has been change—as Coates noted in a conversation he and I had a couple of years ago, in 1860 white Americans could sell children away from their parents, and in 1865 they could not—and that is a real shift. But such beginnings did not mean that justice was being done nor equity experienced.

    Once you start seeing American history through the corrective lens created by the generations of scholars and researchers on whose work Coates reports, then it becomes possible—necessary, really—to read current events in a new light. Take, for example, the McCutcheon decision that continued the Roberts Court program of gutting campaign-finance laws.

    The conventional—and correct, as far as it goes—view of the outcome, enabling wealthy donors to contribute to as many candidates as they choose, is that this further tilts the political playing field towards the richest among us at the expense of every American voter. See noted analyst Jon Stewart for a succinct presentation of this view.

    But that first-order take on this latest from the Supreme Court’s right wing misses a crucial dimension. It isn’t just rich folks who benefit from the Roberts Court’s view that money equals speech. Those who gain possess other key identifiers. For one thing, they form a truly a tiny elite. As oral arguments in McCutcheon v. FEC were being prepared last fall, the Public Campaign delivered a report on all those who approached the money limits the court struck down. They amount to just 1,219 people in the U.S.—that’s four in every 1,000,000 of our population.

    Unsurprisingly, most of the report simply reinforces the main theme of the reaction to the Supreme Court’s decision: This is one more step toward securing governance of, for, and by rich people and their well-compensated servants. One of the most troubling aspects of the story is that the top donors in this country simply don’t encounter ordinary folks, the middle class no more than the poor:

    “Nearly half of the elite donors (47.6 percent) live in the richest one percent of neighborhoods, as measured by per capita income, and more than four out of every five (80.5 percent) are from the richest 10 percent.”

    Equally unsurprisingly, the world of top donors is overwhelmingly male:

    “Of donors for whom gender data were available, only 25.7 percent of the elite donors in 2012 were women, even lower than the paltry one-third of donors giving at least $200 to a federal campaign that election cycle. Also, 304 superlimit donors have a spouse or other family member as another member of list, which could indicate either a very politically interested family or a way for one donor to circumvent the existing limits through contributions in his or her spouse’s name. Of the donors without another family member on the list, only 17.7 percent are women.”

  8. Elaine M. says:

    Jon Stewart Skewers Scalia And The Supreme Court Over McCutcheon Ruling

    Jon Stewart skewers the Supreme Court for another Citizne’s United type ruling in the case of McCutcheon v. FEC, which opens the flood gates of money into politics that gives wealthy donors much more power in selecting who they want in government.

    Stewart: What rationale did the court use to justify this 5-4 split decision

    Scalia; Just to put that in perspective. How much money was spent by political parties and PAC’s in all elections throughout the country? When you add all that up I don’t think 3.5 million dollars is a heck of a lot of money.

    Stewart: Antonin Scalia, the strict constructionist justice argument seems to be sure 3.5 million dollars sounds like a donor is making it rain until you compare that to the monsoon season of money that we unleashed in our previous Citizen’s United ruling, allowing corporations and unions to donate to super PACs. I believe the limit was whatever the f&*k they want. You may even think that sure there are billions of dollars in politics, surely millions can still have some corrupting effect, no? And aren’t we by attempting to try and limit contributions, just trying to limit the corrupting influence of money?

    (NOTE: You can watch the Daily Show video at the link posted above. It’s about ten minutes long.)

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