Roberts Court: Easier to donate, harder to vote

April 4, 2014

Chief Justice John Roberts’ first sentence of his majority opinion in McCutcheon v. Federal Elections Commission, striking down important limits on campaign contributions, declares “There is no right more basic in our democracy than the right to participate in electing our political leaders.”

A look at the Roberts Court’s record, however, shows that this may not be its guiding principle.

Through a series of rulings, the court’s conservative majority’s rulings have instead made it easier for big-money donors to influence elections — while making it harder for many Americans to use the only political influence they have: their vote.

The court has done handsprings to accommodate claims that laws burdening donors’ ability to spend money in elections are unconstitutional. In Citizens United, for example, the court decided to schedule re-argument during a special court session — something very rare in the Supreme Court — to consider whether to strike down campaign finance restrictions on corporate expenditures as unconstitutional. (Which the court ultimately did.). The plaintiff in that case hadn’t even pressed such a radical argument, until the court explicitly invited it to do so.

The Roberts Court’s solicitude in protecting the ability of the super rich to participate in our elections through massive amounts of cash is, however, missing when it comes to protecting ordinary Americans’ right to vote free from discrimination. Last term, a divided 5-4 court struck down a section of the Voting Rights Act that had successfully prevented racial discrimination in voting since 1965.

With respect to the first part of the equation — making it easier to spend money in elections — the Roberts Court has been steadily moving to disassemble the system of campaign finance regulation created by lawmakers of both parties and upheld as constitutional for decades.

The 2010 Citizens United decision struck down limitations on how much can be spent independently of a candidate’s campaign, opening the floodgates of big-money super PACs. These political action committees can now raise unlimited amounts of money from individuals, corporations and unions to support or oppose a political candidate.

As now-retired Justice John Paul Stevens observed in his powerful dissent from the Citizens United decision, “while American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

The McCutcheon decision extended the Citizens United majority’s reasoning to strike down limits placed on the total amount an individual can give to federal candidates, party committees and PACs. These limits were first passed in the 1970s, in the wake of the Watergate scandal, to prevent corruption. Until McCutcheon, the court had never struck down a federal contribution limit.

One of the most disturbing parts of Roberts’ opinion is his cramped understanding of the government’s need to have campaign finance regulations. Roberts claims, contrary to long-standing court precedent and constitutional history, that the government can only pass narrow campaign finance laws, framed to prevent actions akin to bribery.

But our nation’s founders thought about the problem of corruption more broadly. They were concerned about officials or government institutions becoming dependent on special interests or big money — basically, dependent on anything or anyone other than the voters.

As James Madison explained, our democracy should belong to all citizens—“not the rich, more than the poor.”

The Roberts Court, however, rejected the beliefs of our Founding Fathers — concluding in McCutcheon that the government does not have a legitimate interest in preventing corruption from “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.”

With its overriding concern to ensure that everyone participates in the political process — especially people who want to donate a lot of money to candidates — surely the Roberts Court must be committed to upholding the right to participate in democracy the old-fashioned way: in the voting booth. Well, think again.

Last year, Roberts led a majority to strike down a key part of the 1964 Voting Rights Act, a statute that has protected the right to vote for millions of Americans. In Shelby County v. Holder, the court gutted a provision that required state and local governments with a history of voter discrimination to get approval from the federal government before making any changes in election laws.

Roberts concluded that the government’s interest was insufficient to support this provision of the voting rights law. Congress had not shown enough evidence, according to Roberts, to subject these states and localities to close scrutiny in order to prevent voter discrimination.

Justice Ruth Bader Ginsburg wrote a powerful dissent, noting that the Constitution expressly authorizes Congress to enforce the guarantee of the right to vote free from discrimination. Given this express constitutional authorization, the court’s job, Ginsburg wrote, was to defer to Congress and the extensive evidence it had collected to show that voting discrimination is still a serious problem in the affected states and localities.

But the court’s conservative majority held to its cramped vision of Congress’s power to ensure free and fair elections. Just as this same majority, in McCutcheon, insisted on its extremely narrow definition of the government’s interest in passing campaign finance regulations.

Roberts is correct that the “right to participate in electing our political leaders” is fundamental in our democracy.

But he is wrong to lead the court in the direction of greater protection for political participation when it comes to contributing campaign cash — and less protection when it comes to accessing the ballot box.


PHOTO (TOP): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young

PHOTO (INSERT 1): The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

PHOTO (INSERT 2): People wait in line to vote at a fire station near downtown, during the U.S. presidential election in Miami, Florida, November 6, 2012. REUTERS/Andrew Innerarity



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Excellent juxtaposition of the court majority’s skewed approach to electoral democracy. One must wonder what Judge Roberts gets from his remarkably open efforts to kiss up to the wealthy. Does he vicariously join their gilded lives, or is it something more concrete?

Posted by Oldbizeditor | Report as abusive

Same liberal tripe. There are NOT ANY restrictions on an individuals right to vote. One only has to look at the past national elections to see that.

The community activists ensured their constituency voted–even driving them to the polling stations. It’s only when the liberals do not get what they want do they complain of voter disenfranchisement.

I’ll tell you what disenfranchisement is…it’s when a career politician continues to loot the taxpayer for their personal gain by selling their vote to the special interests. It’s when a career politician diminishes my rights, protected under the Constitution, because they believe I am incapable of making my own decisions. It’s when a career politician mandates that I sacrifice my personal beliefs so that some secular agenda can be imposed. It’s when a career politician continues to fund an inferior school in order to protect teachers unions, while they send their children to private school. ad infinitum….

Posted by COindependent | Report as abusive

COindependent likes to comfort himself by erecting straw man arguments and then knocking them down in rapid succession, all the while his big-moneyed overlords buy the country out from under him as he unsuspectingly looks in the other direction for a fresh pile of straw. One day our children will look upon our generation in utter amazement as they come to terms with the reality that we heartily ushered in a return of the gilded age through our wanton ignorance and small-minded fears.

Posted by BlueInBama | Report as abusive

what’s interesting here is the near completion of the judicial activism plan launched during the w. bush administration. how quickly americans forget the scandals that brought down heather rep. wilson and sen. pete domenici in new mexico, upon exposure of their participation in firing democratic-appointed judges on the federal bench and replacing them with conservative ideologues. back in 2007-2008, this was news — how elected officials in the republican party were replacing liberal judges with those sympathetic to the conservative mission — pro-business, anti-consumer, anti-regulation and social conservatism — all the while painting progressive judges as “activist”.

in reality, these judges which replaced progressive leaning justices on a state-by-state and federal basis, were the tru activists — working in tandem with the chamber of commerce and the republican platform to reshape and forever alter the federal judiciary to one which rubber stamps the conservative agenda. we are seeing this all the way up to SCOTUS, with the bush appointees dominating the court and effectively dismantling campaign corruption legislation, and enacting a pro-corporate activism which has effectively eviscerated the america’s political system, from the state to federal levels (even as I write this, states across america are either abandoning state legislation limiting campaign contributions or challenging such restrictions in court — or both).

with the gutting of the voting rights act, the roberts court has given a blank check to the continued use of voter intimidation, gerrymandering and redistricting in order to assist the republican party with voter suppression. with citizens united and the mccutcheon ruling, they have canceled out the average american’s vote in favor of those with UNLIMITED cash to buy elections.

if america thought watergate was bad, we’ve just seen the complete dismantling of any shred of integrity, honesty and constitutional protections of our political system. the mega-elite, many of whom share dual citizenships with other nations, have unprecedented power over our elected officials.


democracy in america died this week, and the average american has seen their access to and legitimacy of the voting/political system destroyed. we are slaves. and our masters now own us all the way from the state legislatures to the office of the president and the supreme court.

congratulations, america. you are bought, sold, packaged and delivered to those who will do everything in their power to protect, secure and increase their wealth.

absolute power corrupts absolutely. and we now have the most corrupt political system in the western world.

Posted by tatman | Report as abusive

The recent voter restrictions have simply been common sense. Unless you are a liberal that is.

After new voter ID laws that liberals vehemently proclaimed would prevent voters from voting we had the largest voter turnout in about 10 year. And it was even stronger among minorities who were supposed to be hindered from voting.

Articles like these make for good political rhetoric but I have yet to see any basis in factual results.

Posted by libertas | Report as abusive

@Blue You will also note that I have always promoted term limits to reduce the impact of money and the consolidation of power within the Beltway. Should we not impose term limits at all levels of government, that will be the legacy your children and grandchildren rightfully should criticize our generation.

At least in Colorado, we have imposed term limits at the state level. The results have been extremely positive. The day of the professional politician within our state government is over. They just fade into the sunset.

Posted by COindependent | Report as abusive

These conservative supremes are either stupid or evil. They SAY that all this money in the system doesn’t even give the appearance of corruption. If they believe this, then they are stupid and/or deluded to the point where they have no business holding their office. If, as I suspect, they merely recognize that a highly cynical public serves the interests of their cronies — those elite few who should “count” in our society — then they are evil. In any case, while we may be cynical, we have not been fooled. I’d love to see one of them utter that statement about no appearance of corruption with a straight face.

Was listening to Diane Rehm the other day, and one of the conservative guests told the sad tale of McCutcheon (the plantiff) and how he is such a super-patriot that he likes to donate $1776 to his political candidates. But with contribution limits, he could only donate this amount to 16 candidates. Oh how sad!! He can only buy the favors of 16 public servants. Who should he pick? Apparently, there’s just no way around this dilemma without tossing a law that has helped keep the oligarchs at bay for 40 years. (Mr. McCutcheon, how about giving $17.76 to 1600 candidates?)

The oligarchs may have won, but we plain folk at least still have eyes to see and brains to discern what’s really going on. If only the same could be said of our supreme court justices.

Posted by Sanity-Monger | Report as abusive

libertas: the voter turn out was exceptional because of the blatant attempts to limit access which resulted in great anger. This ruling does the same. These actions are too obvious even for the lethargic american citizen. I believe the old right wing nuts knew that the american voter was best left asleep, but this new generation is many generation removed from any actual real life experience and has assumed it’s own rhetoric is correct. I suspect this move was meant to demotivate for the mid-term, but it will likely do the opposite. Sanity-Monger posits that the court is either stupid or evil. I would say their action is evil, but that’s because they are stupid. Anyway, good luck to you Mr. second level minion and hopefully you don’t feel too lonely as the numbers of people on the planet that could possibly consider what you say as legitimate is reduced naturally by their age induce disappearance.

Posted by brotherkenny4 | Report as abusive

So put on your big boy pants and vote. You don’t need to vote based on who spends more money; you can form your opinions like a real person.

Posted by jenni123 | Report as abusive