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Commentary: The court knows, and we're worse off

by on April 10, 2014 10:20 AM

The latest Supreme Court ruling — defending the rights of billionaires to try to rent, if not buy, the gratitude and votes of unlimited numbers of politicians — has just provided fresh evidence that helps us finally answer a central question that has divided the experts.

It focuses on what the conservative justices are really up to in their activist judicial campaign to remake The Founders’ concept of free speech and democracy in today’s age of television and Internet.

Some experts politely contend the five conservative justices who now rule the court’s decisions on campaign financing simply don’t know what they are talking about.

Other experts politely disagree, saying of course they know what they are talking about — and how it will change the way Washington really works.

While I don’t consider myself the ultimate learned hand on the complexities and nuances of the Supreme Court, I sure understand how Washington really works. And why it often doesn’t.

Now, thanks to Chief Justice John Roberts’ written opinion explaining the court’s April 2 ruling in the case of McCutcheon v. the Federal Election Commission, we are all better prepared to render our verdict on whether they know what they have done.

Here we go.

First, in its 1976 ruling (in Buckley v. Valeo), the Supreme Court ruled, in a decision that still sounds paradoxical, that campaign spending is free speech. Government cannot limit the right of the rich to buy as much free speech (including television ads) as they can afford. With one key exception: there can be limits to guard against corruption.

Ever since then, the court has defined the corrupting influence of political money most narrowly — as spending given as a “quid pro quo” — something for something, in Latin. But ever since then, all politicians and special-interest lobbyists who finance their campaigns have meticulously avoided making specific quid pro quo promises in exchange for money.

Checks are given with winks and nods and elbows in ribs. Checks are accepted and special interests get access to senators, representatives, presidents and their aides. Ultimately, special interests get tax breaks, waivers and look-the-other-ways, and thus reap huge profits on money they invested in politicians’ campaigns.

Meanwhile, ever since 1976, the court has repeated its vows to combatting corruption by preventing quid pro quo contributions. Never mind that this is akin to banning lobbyists from standing on running boards while a candidate’s car is moving.

In 2010, Justice Anthony Kennedy seemed to set the indoor record for political na￯vet← in his opinion in the Citizens United decision that allowed unlimited spending on so-called independent politicking ads and efforts that favored a candidate or issue.

Kennedy wrote that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. ... In fact, there is only scant evidence that independent expenditures even ingratiate. ... Ingratiation and access, in any event, are not corruption.”

Some experts consider that as proof the conservative justices don’t really know what they are talking about in campaign finance decisions. But wait. Chief Justice Roberts just wrote two paragraphs in his McCutcheon case opinion that show he knows exactly what he is doing.

First Roberts said “disclosure of contributions minimizes the potential for abuse of the campaign finance system ... (and could) deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. With modern technology, disclosure now offers a particularly effective means of arming the voting public with information.”

But in the next paragraph, Roberts quietly reversed himself, explaining we may now see less helpful disclosure, not more of it.

“The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure. Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech. Individuals can, for example, contribute unlimited amounts to 501(c) organizations, which are not required to publicly disclose their donors.”

Roberts, demonstrating a flare for a journalistic future, even reported: “Such organizations spent some $300 million on independent expenditures in the 2012 election cycle.”

In his defense, the chief justice clearly knows what his modest political gift for billionaires will do for them — and the rest of us. He probably even knows he’s just caused our Founding Fathers, who merely wanted to assure we could all voice our views openly in a public park, to spend a new aerobic eternity, whirling in their places of rest.



Martin Schram is a veteran Washington journalist, author and TV documentary executive. His column is distributed by McClatchy-Tribune News Service.
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