“Justice Roberts Defends The Embattled Rich In McCutcheon”: With Laundered Contributions, You Can Now Buy Off Whole Committees
Chief Justice John Roberts’s majority opinion in McCutcheon v. Federal Election Commission, in which the Supreme Court struck down aggregate limits on campaign donations, offers a novel twist in the conservative contemplation of what Nazis have to do with the way the rich are viewed in America. In January, Tom Perkins, the Silicon Valley venture capitalist, worried about a progressive Kristallnacht; Kenneth Langone, the founder of Home Depot, said, of economic populism, “If you go back to 1933, with different words, this is what Hitler was saying in Germany. You don’t survive as a society if you encourage and thrive on envy or jealousy.” Roberts, to his credit, avoided claiming the mantle of Hitler’s victims for wealthy campaign donors. He suggests, though, that the rich are, likewise, outcasts: “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he writes:
If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
So the problem is that even Nazis are treated better than rich people—less constrained by public anger in their ability to speak out. Or pick your analogy: when thinking about people who want to donate large sums of money to candidates, should we compare their position to that of the despised and defeated, like the Nazis in Skokie, Illinois, in the nineteen-seventies, or of scorned dissidents, like flag-burners, trying to get their voice heard with their lonely donations?
As in Roberts’s opinion in Shelby v. Holder, in which the Court overturned parts of the Voting Rights Act last year, the people we think of as having the power are, in fact, embattled, the victims of schemes, driven by popular opinion, meant to “restrict the political participation of some in order to enhance the relative influence of others,” as Roberts put it. “The whole point of the First Amendment is to afford individuals protection against such infringements,” he wrote, adding:
No matter how desirable it may seem, it is not an acceptable governmental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.”
There is, apparently, a fine line between efforts to keep our political system from being for sale and a social experiment in levelling.
Roberts’s opinion left intact limits on how much a person can donate to a single candidate or party committee, but it took away the limit on how much money in total a person can give directly to candidates. Until this case, the totals were $48,600 to individuals and $74,600 to committees per election cycle. (Shaun McCutcheon, the plaintiff, said he wanted to keep giving directly to Republicans after he’d reached his limits; the Republican National Committee joined him in the case, saying it would be happy to take his money.) Roberts recognized, as the Court long has, that the government has an interest in preventing corruption which allows it to limit the size of a check that one person can hand one candidate. Earlier decisions allowed the aggregate limits in order to prevent donors from using multiple contributions to get around the cap, by giving to numerous committees that might pass the money around and get it to the candidate anyway. Stephen Breyer’s dissent—he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—lays out a number of quite practical ways this could happen, but Roberts dismisses those arguments as silly.
“It is hard to believe that a rational actor would engage in such machinations,” Roberts writes, after examining how a person could donate to a hundred PACs to get money to a hypothetical candidate named Smith. He may simply be lacking in imagination here: the immediate effect of McCutcheon is likely to be the development of structures and vehicles for effectively laundering contributions through many small channels, and the emergence of specialists who know how to set these things up. Roberts might think that the complexity—the potential paperwork—is a guarantor against corruption, but he has too little faith. We’ve got the technology to get it done.
Roberts’s other argument is a little sad: “That same donor, meanwhile, could have spent unlimited funds on independent expenditures on behalf of Smith.” In other words, aggregate limits wouldn’t foster corruption, because using money to influence a campaign is much easier with the sort of independent expenditures that Citizens United makes possible.
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.
But then Roberts relies on a very narrow measure of corruption: “Ingratiation and access … are not corruption,” he writes, quoting Citizens United. (There are a number of citations of Citizens United in this decision.) The argument of McCutcheon, in effect, is that a political party itself cannot, by definition, 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.” The gratitude may only be for a place of safety where donors, assailed by the popular opinion of bitter, poorer people, can find a little bit of solace.
By: Amy Davidson, The New Yorker, April 2, 2014
“Can Liberals Trust John Roberts To Rescue Obamacare Again?”: A Pro-Hobby Lobby Ruling Would Be His Most Radical Decision
Most Supreme Court watchers are fixated these days on Sebelius v. Hobby Lobby—the important challenge to the Affordable Care Act’s contraception mandate scheduled for argument Tuesday. And why wouldn’t they be? With its potent mix of religion, sex, Obamacare, and prayerful corporations, it’s the blockbuster case of the term. It is also a crucial test of Chief Justice John Roberts’s leadership on the Supreme Court.
Just two years ago, Roberts cast the deciding vote to largely uphold the Affordable Care Act. While the country remains divided over whether he acted like a traitor or a statesman, all would have to agree that, given the level of public scrutiny on the Court and the case’s overall importance (both substantively and to the President’s legacy), Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher.
Chief Justice Roberts has often spoken about how important it is for the justices to maintain the legitimacy of the Court—by limiting divisive rulings, moving the law incrementally, and trying to stay above politics. For instance, in an interview with Jeffrey Rosen early in his tenure as chief justice, Roberts explained that the Court is “ripe for a … refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy.” Expressing admiration for the great Chief Justice John Marshall, Roberts added that, even as a committed Federalist, Marshall preferred to move the law “in a way that … wasn’t going to alienate people on the Court and turn the Court into another battleground.” While commentators certainly quibble over just how radical an effect John Roberts has had on the law—even Justice Antonin Scalia once attacked the chief justice’s approach in a pre-Citizens United campaign finance case as “faux judicial restraint”—there’s little question that Roberts himself prefers the image of the modest jurist to that of judge-as-hero (think Earl Warren) or judge-as-prophet (think Scalia).
He cultivated this image most dramatically in the first ACA case, joining with his progressive colleagues to uphold a Democratic president’s most important achievement—and in the middle of an election year, no less. Furthermore, just last term, the Roberts Court managed to reach an unlikely compromise in a blockbuster affirmative action case, and Roberts himself preserved the marriage-equality status quo in California with his majority opinion in Hollingsworth v. Perry. However, even in areas where Roberts has pushed the law dramatically to the right (like voting rights), he has tended to prefer a slower-moving, more incremental approach than his more radical colleagues, with seismic shifts (like Shelby County v. Holder) coming only after the political ground has already been prepared with previous, more modest decisions (like NAMUDNO v. Holder)—legal warning shots, if you will. He has also chipped away at progressive laws in a series of low-profile cases—for instance, those on the Court’s business docket. This strategy allows him to move the law to the right, while also preserving the institutional legitimacy of the Court.
Through this lens, Hobby Lobby presents a potential dilemma for the savvy Chief Justice. In the case, Hobby Lobby, a craft-store chain owned by Southern Baptists, is suing the government to seek religious exemption from the ACA’s requirement that it offer insurance plans to employees that cover contraception at no extra cost. On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.
On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution. First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans—something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice—a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.
In the decades leading up to the Supreme Court’s 1990 landmark decision in Employment Division v. Smith, courts heard many free exercise challenges. For the most part, they followed a familiar pattern: A law applied to everyone in a given jurisdiction; someone came to court and claimed a religious objection to that law; and the court ultimately rejected that challenger’s claim. This was true in the Supreme Court and, as explained by Professor James Ryan, it was also true in the lower courts. The bottom line—whether you were an Amish employer refusing to pay Social Security taxes or an army doctor wishing to wear a yarmulke while on duty, you were probably going to lose your free exercise claim.
Then along came Smith—a free exercise decision that hit the legal and political world like a thunderbolt. The case involved Native Americans dismissed from their jobs for failing a drug test. (They had smoked peyote during a religious ceremony.) Because of this drug use—religiously motivated or not—Oregon then denied them unemployment benefits. When they challenged this action on free exercise grounds, the Court rejected their claim. However, rather than simply applying the Court’s traditional balancing test (where the Court weighed a given law’s burden on religion against the governmental interest advanced by the law), Justice Scalia struck a radical pose, shelving it for a bright-line rule that was even less protective of religious objectors—and hence the controversy.
Of course, under the pre-Smith test, religious objectors were already losing these cases. Following Smith, they were only slightly more likely to do so. Nevertheless, Congress responded to Scalia’s decision by enacting a new law explicitly overturning Smith and restoring the pre-Smith status quo, but all that really did was reestablish an environment where free exercise claims rarely succeeded.
Given this legal backdrop, the key question for Roberts leading up to the Hobby Lobby argument is whether he’ll stick with this traditional approach or adopt a new, more stringent test—one even stricter than anything that existed in the pre-Smith world. If the chief justice takes the more radical path—and, more importantly, if he convinces at least four of his colleagues to go along with him—Hobby Lobby could, indeed, live up to the hype and become a truly revolutionary case.
For instance, such a ruling would entangle lower courts and the Roberts Court itself in knotty free exercise challenges (and a lot of them)—challenges that would potentially require judges to define what counts as “religious belief,” assess the sincerity of those beliefs that pass muster, and apply the traditional balancing test with serious bite. Courts have balked at going down this path in the past—and for good reason. Furthermore, the Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees—an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.
In the end, however tempted Chief Justice Roberts may be to strike a blow to Obamacare in this highly publicized, blockbuster case—and however much his conservative colleagues may be pulling him in that direction—Roberts can’t give in to these pressures without tarnishing his carefully cultivated image as a cautious jurist and, in the process, unleashing a wave of unpredictable (and risky) consequences.
By: Tom Donnelly, Counsel at Constitutional Accountability Center; The New Republic, March 24, 2014
Chief Justice Roberts wishes a Happy New Year to all those losers who will not get health care insurance, thanks to his clever reading of the Constitution. There are 4.8 million of these losers and 2.6 million of them are people of color, black and Hispanic mainly. Not that the Chief Justice and his right-wing colleagues on the Supreme Court would make racist distinctions. No, no, no. They assure us their decision is solely driven by a matter of high comstittional principle—States Rights.
The problem with these people is that they are low-income adults without dependent children—not quite poor enough to qualify for Medicaid nor old enough to qualify for Medicare. President Obama’s original legislation took care of them by expanding Medicaid coverage and putting up the federal money to pay for it. The Roberts decision insisted that state governmednts have a constitutional right to reject this financial aid from Washington. And twenty-five states took him up on the offer.
This odd failure will probably be blamed on Obama but should rightly be called the “Supreme Court gap” in unversal health-care coverage. Because these folks do not not quite earn enough to qualify for Obamacare’s tax credits to help people purchase health insurance. A report from the Kaiser Family Foundation outlined the consequences. “Most of these individuals have very limited coverage options and are likely to remain uninsured,” the foundation explained.
Of course, they could get a job that pays more. Or maybe get married and have children that would qualify them for Medicaid. State governments set many of the rules for Medicaid coverage and some conservatives think fedeal aid saps individual initiative and rewards indolence. It is not entirely a coincidence that many of these rejectionist states are the same states that defied the Supreme Court half a century ago and resisted racial integration and equal rights for minorities. Some of them are the very states that went to war to defend slavery. Republicans are sometimes called a “neo-confederate party.” After the Supreme Court gutted the voting-rights act, the neo-confederates were free to pass restrictive laws designed to shrink minority voting, and so they did.
The Kaiser Foundation doesn’t get into any of that but simply observed, “These continued coverage gaps will likely lead to widening racial and ethnic as well as geographic disparities in coverage and access.”
Don McCanne of Physicians for A National Health Program circulated the Kaiser report with this comment: “What a terrible way to start the first of the year of what is essentially the full implementation of the Affordable Care Act. It seems pretty obvious what our New Year’s resolution should be. Let’s bring health care to everyone through an improved and expanded Medicare for all.”
Democrats ought to call out Republicans on these questions. And citizens generally ought to call out the Roberts court. The Supremes have done quite a lot in the last fifteen years to mess up our already weakened democratic system. They stole the presidential election in 2000. They cut loose big money to swamp elections by destroying lawful restraints. They are trying step-by-step to restore hoary old legalisms that favor capital over labor, corporations over individuals. Shouldn’t we be talking about how to stop them?
By: Wiliam Greider, The Nation, December 31, 2013
“The RNC Reflects On Ending Racism”: The Republican Party No Longer Qualifies For The Benefit Of The Doubt
For all of its many benefits, Twitter’s brevity can cause trouble for plenty of political voices. Yesterday, for example, the Republican National Committee decided to honor the anniversary of Rosa Parks’ “bold stand,” which seemed like a perfectly nice gesture. The RNC added, however, that Parks played a role “in ending racism.”
Not surprisingly, the message was not well received. Despite what you may have heard from Supreme Court conservatives in the Voting Rights Act case, racism hasn’t ended, it certainly wasn’t vanquished on a bus in Montgomery, Alabama, in 1955.
A few hours later, realizing that they’d made a mess of things, RNC officials returned to Twitter to say, “Previous tweet should have read ‘Today we remember Rosa Parks’ bold stand and her role in fighting to end racism,’” which was a welcome clarification, though the damage was done.
In fairness to the Republican National Committee, it’s hard to believe the party was trying to be deliberately offensive. For that matter, I rather doubt the RNC believes Rosa Parks helped end racism 58 years ago. This was likely the result of clumsy tweeting, not ignorant malice.
But in the larger context, stories like these resonate because the party no longer qualifies for the benefit of the doubt. Too many incidents come quickly to mind: the Nevada Republican who’d embrace slavery, the North Carolina Republican whose appearance on “The Daily Show” became the stuff of legend, the birthers, the fondness for Jesse Helms, the widespread voter-suppression laws that disproportionately affect African Americans, the Maine Republican who wants the NAACP to kiss his butt, the former half-term Alaska governor who’s comfortable with “shuck and jive” rhetoric, etc.
The RNC, in other words, can’t lean on its credibility on racial issues to easily dismiss poorly worded tweets. The fact that the party can’t even say a nice thing about Rosa Parks without screwing up and getting itself in trouble only helps reinforce the extent to which race is a systemic problem for the party.
By: Steve Benen, The Maddow Blog, December 2, 2013