Opinion

The Great Debate

Roberts Court: Easier to donate, harder to vote

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.

McCutcheon: Should the rich speak louder?

On Wednesday, the Supreme Court handed down its most important decision on campaign finance reform since Citizens United. The decision, McCutcheon v. Federal Election Commission, seemed to divide along familiar ideological lines, with Chief Justice John Roberts writing the majority opinion for five conservatives and Justice Stephen Breyer, writing the dissent for the four liberals.

What really divided the court, however, wasn’t partisan politics pitting Republicans against Democrats but two conflicting views of the First Amendment. Which view you embrace depends on whether you see the McCutcheon decision as a principled triumph for unpopular speech or a First Amendment disaster that will ensure that a handful of the richest Americans can use their vast resources to drown out the voices of everyone else.

The First Amendment view embraced by Roberts and his conservative colleagues is rooted in individual liberty. There’s no right in our democracy more fundamental, Roberts began, than the First Amendment safeguards for “an individual’s right to participate in the public debate through political expression and political association.”

Why corporations don’t deserve religious freedom

On March 25 the Supreme Court will hear arguments in two cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, whose outcomes will decide whether corporations can exempt themselves from provisions of the Affordable Care Act (ACA), based on religious beliefs. The cases challenge a provision of the ACA that requires employer-provided insurance plans to include contraception coverage.

The rulings’ importance extends beyond the ACA, however. Hobby Lobby and Conestoga Wood, its companion case, are also about Citizens United — which established that corporate personhood includes freedom of speech, exercised, in part, by giving money to political causes. Now the court will decide whether corporations have freedom of religion as well, and whether on the basis of those rights, corporations can deprive services to others.

The court should reject this dangerous assertion. Corporations exist as separate legal entities precisely to distinguish their activities from those of their owners. It is that separation that Hobby Lobby threatens to erase.

Making every voter equal

The venture capitalist Tom Perkins recently suggested that he should have a greater voice than others in selecting our government because he’s rich. “You pay a million dollars in taxes,” he told the Commonwealth Club in San Francisco, “you get a million votes. How’s that?”

Perkins later insisted that he had intended to be outrageous. As most Americans understand politics, however, he was just stating the obvious.

Instead of extra votes on Election Day, we who are wealthy enough to give money to politicians get special access before, and influence after, as candidates pursue the cash that is the life’s blood of their election campaigns. The more you give, the more access and influence you have. It’s as simple as that.

When excessive wealth meets dysfunctional politics

The election is months away but figuratively, at least, the billionaires are voting early and often.

Paul Singer and Art Pope, and, of course, the brothers Charles and David Koch are busy punching ballots for the Republicans; George Soros and Tom Steyer, meanwhile, are arranging votes for the Democrats, or at least most of them, since Steyer, an environmental advocate, is focusing of climate change. Their minions are not, however, literally buying votes — the way Gilded Age operatives for George Hearst or Leland Stanford used to do.

That kind of exercise, though arguably more efficient in the “marketplace of ideas,” remains illegal. At least for now. Instead, money is transmuted into “speech.” As long as there is no specified quid pro quo from those elected with their money — and perhaps only electable because of their money — no one has broken the law.

Roberts: The ‘swing’ justice of election law

Tuesday’s oral argument in McCutcheon v. FEC, the latest high-profile campaign finance case, will likely generate familiar storylines about a fiercely ideological Supreme Court, where one justice drives the outcome of a close 5-4 decision. Public perception of the Supreme Court is that there are four conservatives, four liberals and Justice Anthony Kennedy in the middle — as the “swing” vote.

But that’s wrong — at least where voting rights and campaign finance cases are concerned. Though Kennedy’s vote dictates some outcomes when the court is split 5-4 along ideological lines, another justice has been the driving force behind current election law jurisprudence. In this matter, it is truly Chief Justice John Roberts’s court.

Since Roberts became chief justice in 2005, the court has issued 23 written opinions involving voting rights, redistricting or campaign finance. Roberts is the only justice who has been in the majority every time. In addition, he has written twice as many majority opinions in this field as any other justice — six, as compared to Kennedy’s three. Roberts has now written more than 25 percent of the election law decisions handed down since he joined the court.

The Supreme Court ‘s Gilded Age redux

The Supreme Court belongs to the small club whose members seem to assume that saying something makes it so. It deals in precedents — not the same thing as dealing in history. It prefers obiter dicta to the messiness of the past.

In his Citizens United opinion, Justice Anthony Kennedy wrote, “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Really? The equation of money with speech has gotten a lot of well-deserved attention, but the inelegant “not coordinated with a candidate” seemed attached only to define “independent.” Does the phrase mean that if expenditure was coordinated with a candidate it was not political speech and thus not protected?  We are about to find out.

The framers on campaign finance law — via Tumblr

How our nation’s founding fathers would feel about Tumblr is as impossible for the Supreme Court to know as how James Madison would have felt about violent video games. But fortunately there’s a new Tumblr blog available to help the justices understand how the framers of the Constitution felt about “corruption” in politics.

The blog, created by Harvard Law professor Lawrence Lessig, examines all the writings of the founding fathers’ and aggregates every mention of “corruption” to get an overview of their opinion. The answer could prove important to the court’s ultimate ruling in the latest post-Citizens United challenge to campaign finance laws.

The Supreme Court, in its controversial Citizens United decision, ruled that corporations have the right to spend without limit on ads and other political activity to support a particular candidate or party. The result was $1.5 billion in outside spending during the 2012 presidential election.

SEC should force companies to disclose their political spending

The explosion in hidden election spending is one of the most discussed phenomena in American politics today. What’s less known is that a large number of America’s leading corporations are disclosing their political spending, and that number is steadily growing.

More than 100 major corporations, including 60 in the S&P 100 index — comprised of the nation’s most influential companies — have taken this step, reaching agreements with shareholders to disclose their spending. Now it’s time for all public companies to report.

And it’s time that the Securities and Exchange Commission hastens universal disclosure by requiring publicly held companies to disclose their direct and indirect political spending with corporate funds. The Commission can do this by moving forward on a petition submitted by a bipartisan group of eminent law professors almost two years ago.

The real IRS scandal

The office for the Internal Revenue Service near Times Square in New York May 16, 2011.  REUTERS/Chip East

We just had five congressional hearings about the Internal Revenue Service, full of sound and fury, but, we now know, signifying nothing.

Despite all the hoopla and headlines about IRS personnel targeting conservative tax-exempt organizations, there is no real scandal here. IRS staffers acted not only legally but, given their impossible task, quite rationally.

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