“The General Public Will Not Be Heard”: John Roberts Shows He Has No Idea How Money Works In Politics
Shaun McCutcheon is the kind of donor that the Republican Party can’t get enough of. The CEO of Coalmont Electrical Development in McCalla, Alabama, McCutcheon made a small fortune from his work in the mining industry and dedicated much of his life to electing Republicans. The Chairman of the Alabama State Republican Party said that McCutcheon was great at “supporting conservative candidates, getting conservatives elected to office.” Upset that he couldn’t donate more than the federal limit of $46,200 to individual candidates, he teamed up with Senator Mitch McConnell at a CPAC conference in 2012 to launch the latest assault on campaign finance law.
In today’s Supreme Court decision, the Roberts Court, in another 5-4 decision, tore down the aggregate donation restriction. Going forward, donors like McCutcheon can donate up to $3.6 million per cycle, as long as the donations are done in $2,600 blocks to individual candidates.
In reality, the case may not have a huge impact on elections. By tearing down any restriction on the amount that an individual can donate to a Super PAC, Citizens United already opened the spigot on unlimited money in our electoral system. Today’s decision builds on Citizens United but the harm to democracy has already been done.
What is striking about the opinion is how completely off-base Chief Justice Roberts is in his understanding of the role of money in politics. Roberts struck down the law, framing the attempt to limit the flow of money into politics as an attempt to stifle unpopular speech. Just as 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.” For the Roberts Court, wealthy donors are under attack as a minority and need the protection of the Supreme Court. Under the Citizens United framework that money is speech, the court in McCutcheon struck the aggregate limit as a violation of the First Amendment.
The Court comes off as remarkably uninformed when it comes to the relationship between wealthy donors and elected officials. Roberts says that legislation cannot seek to limit what he calls the “general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Roberts said “spending large sums of money” would not “give rise to such quid pro quo corruption.” The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of “dependence corruption” in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence.
The reality, as Justice Breyer stated from the bench, is that the decisions in Citizens United and McCutcheon “eviscerates our nation’s campaign finance law.” We are left with an inability to regulate the flow of millions into the campaign finance system and a Court that is unwilling to stand up to anything but the most blatant forms of corruption.
Conservatives will celebrate today’s decision as a victory for the First Amendment but the reality is that the right to political speech is under assault from the torrent of money pouring into our elections. This is a point that Justice Breyer captured in his dissent; “Where enough money calls the tune, the general public will not be heard.”
The Supreme Court is now controlling how the Congress can limit the electoral process but, remarkably, not a single Justice has ever held elected office. Since Justice Sandra Day O’Connor, a former State Senator in Arizona, resigned from the Supreme Court in 2005, we have not had a Justice with any experience in elected office. Since she left the Court, Justice O’Connor has openly critiqued the decision in Citizens United, and has argued “we’re in a bit of trouble in this whole area.” While putting elected officials on the Supreme Court has fallen out of fashion, due in part to the extensive voting records they are forced to defend, the Court’s decision in McCutcheon is a reminder that it may be quite valuable to have a Justice who can tell his or her colleagues how a campaign actually works and the impact of money in our electoral system.
If there is any silver lining in this decision, it is that it can help to draw public attention to the outsized role that large-scale donors are playing in our electoral process. The backlash to Citizens United demonstrated that the public does care about this issue and after today’s decision there will be a demand for further action. The decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system; all we have left, as Justice Breyer noted today, is “a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” We are living in a brave new world of elections, a world where millionaires and billionaires speak loudly and the rest of us do the listening.
By: Sam Kleiner, Fellow at Yale Law School’s Information Society Project; Published in The New Republic, April 2, 2014
“BobbyCare”: Jindal’s Generic Obamacare Alternative
If congressional Republicans need a fresh excuse to delay settling on an Obamacare “replacement” plan, Bobby Jindal’s given them one by throwing another plan into the mix. But on further examination, the Genius’ proposal is sort of the ultimate Generic Conservative Plan, complete with a Generic Conservative label, the Freedom and Empowerment Plan. It was released by Jindal’s pocket “think tank,” America Next.
Is there any hoary conservative health policy pet rock this plan omits? I don’t see any on a quick examination. You got your interstate insurance sales. You got “tort reform.” You got new incentives for setting up Health Savings Accounts. You got state-run high-risk pools for those with pre-existing conditions. You got a shift in the tax code from deductions for employer-sponsored health insurance to individually purchased health insurance. There’s a Medicaid block grant, and for extra measure, borrowed from the Ryan Budget, there’s Medicare converted to a premium support system for private insurance instead of single-payer government-supplied insurance.
There are a couple of wrinkles that stand out. Unlike, say, John McCain’s 2008 health care proposal, which BobbyCare resembles, Jindal would deploy not tax credits for insurance purposes but a new standard deduction. Wouldn’t that be regressive in its impact? No problem, says Jindal: po’ folks with little use for a tax deduction could share the state-run high-risk pools designed for those with preexisting conditions, providing an appropriately fenced-off health insurance ghetto for the poor and the sick (I’m sure that would fare really well in the federal and state appropriations processes).
Jindal’s plan is also a little vague about the transition to voucherized Medicare, though he suggests traditional Medicare should include a cap on “catastrophic” health expenses, presumably to reduce reliance on Medigap policies.
One provision isn’t vague at all:
[R]epeal of Obamacare will remove the law’s anti-conscience mandates, and the funding of plans that cover abortions. But true health reform should go further, instituting conscience protections for businesses and medical providers, as well as a permanent ban on federal funding of abortions, consistent with the Hyde Amendment protections passed by Congress every year since 1976.
BobbyCare is the work of a genius only if hunting and collecting past proposals is a brilliant endeavor (indeed, he seems concerned to take credit for Medicare as Premium Support away from Ryan by noting the 1999 commission he chaired proposed something similar). It will probably undercut support for more novel and politically feasible Republican proposals like the Coburn-Burr-Hatch plan. But no matter: the Legend of Bobby Jindal, Boy Genius, will get another layer of thin varnish.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, April 2, 2014
“SCOTUS Sanctioned Corruption”: In McCutcheon, Justices Advance Troubling Vision Of Democracy
The Supreme Court’s McCutcheon decision today dealt another serious blow to the regulation of money in politics. In its 5-4 decision, the Court struck down the federal aggregate contribution limits, which restrict the amount one person can contribute to all candidates, parties, and political committees combined. As a result, one person can now give more than $3.6 million to one party’s candidates and committees in a single election cycle (under the limits, one could give “only” $123,200 per election cycle). With a sufficiently sophisticated joint fundraising apparatus, this money could be given in response to a solicitation from a single party leader.
While this is troubling by itself, the more sinister part of the decision lies in the groundwork the decision laid for future money in politics cases.
The Court doubled down on its holding that corruption only includes contributions given with the expectation of receiving official action in return — essentially a direct bribe in the guise of a political contribution. The Court also acknowledged that contributions can be used to gain ingratiation with and access to government officials while not reaching the level of outright bribery. But the Court praised this relationship rather than condemning it:
“We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. . . . They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
This vision of the Constitution is wrong. It elevates wealthy donors who can afford to buy influence over 99.99 percent of Americans, who have an equal right to representation. Although the Court may talk in the language of protecting constituents, the outcome is clear — big donors can give to however many candidates they want, regardless of whether they can vote for those candidates or would be constituents of those candidates. This case is about big money, not constituents.
Beyond this, the overtones of the decision suggested that contribution limits may be subject to harsher constitutional scrutiny in the future. If the Court changes this standard for review, it will be more difficult to successfully defend contribution limits from First Amendment challenges in future cases. The Campaign Legal Center’s Trevor Potter describes this danger in a blog post that predates the McCutcheon decision.
There are still meaningful ways to limit the power of big money in our political system. We need to enact disclosure laws to eliminate dark money, elevate the voices of ordinary voters through small donor public financing, strengthen rules against coordinated spending and the circumvention contribution limits, and ensure existing rules are enforced.
But until then, even more money will flow directly to candidates, further marginalizing average voters at the expense of the wealthy. While this is just the latest step in a long line of recent cases weakening our campaign finance system, the decision strongly signals that more is still yet to come.
By: David Earley, Brennan Center For Justice, April 2, 2014
“Laying It All Out On Medicare”: No Mistaking Paul Ryan’s Policy
The release of a new Paul Ryan budget plan is always the occasion for a lot of ridicule from liberals, for a whole bunch of reasons, and this year’s will be no different. Ryan’s budgets always manage to combine a remarkable cruelty toward poor people with a sunny optimism that draconian cuts to social services will result in a veritable explosion of economic growth, allowing us to balance the budget without taking anything away from the truly important priorities (like military spending) or, heaven forbid, forcing wealthy people to pay more in taxes.
I’m sure there are other people preparing detailed critiques of the Ryan budget, but I want to focus on one thing this brings up: the question of how we talk about Medicare. As he has before in his budgets, Ryan proposes to repeal the benefits of the Affordable Care Act, like subsidies for middle-class people to buy insurance and the expansion of Medicaid, but he’d keep the tax increases and Medicare cuts that the bill included in order to pay for it all, which helps him achieve his “balanced” budget.
Yes, it’s true that when Ryan was running for vice president, he joined Mitt Romney in condemning those very Medicare savings. But nobody really believed he was doing anything at the time but being a team player. So we can give him credit for taking at least a step toward putting his money where his mouth is on Medicare. Sure, it may be couched in some misleading words (the document refers to “strengthening Medicare” no fewer than ten times), but there’s no mistaking the policy.
Because the rest of his party is, to put it kindly, of two minds when it comes to the program. On one hand, they will tell you, Medicare is unsustainable, a ravenous beast that will devour the entire nation’s financial well-being if we don’t find a way to suppress its appetite. In Washington-speak, this is translated as “doing something about entitlements.” We have to Do Something About Entitlements! If you don’t want to Do Something About Entitlements, you’re just not serious about our nation’s fiscal challenges.
On the other hand, Republicans believe that Medicare is utterly sacrosanct, a jewel whose every facet is so perfect that even the most modest attempt to curtail its costs should be met with howls of anguish and outrage. Or at least that’s what they believe at election time, when they’ll air one ad after another condemning Democrats for cutting the Medicare seniors so desperately need. Democrats all over the country have been subjected to ads saying, “Congressman Fnurbler voted to cut $716 billion from Medicare!” over a picture of an elderly couple sitting at the kitchen table, looking over their bills with an engulfing despair, then meeting each other’s eyes in a tragic look that says, “Thanks to Congressman Fnurbler, all is lost. If only we had been able to pay our gas bill so we could stick our heads in the oven and end it all right now.”
Republicans are so deeply opposed to the idea of cutting Medicare that they can’t even stomach anyone trying to see if Medicare is spending its money wisely. Mention the Independent Payment Advisory Board, a component of the ACA that was designed to restrain Medicare costs if they rose too fast, and steam will come out of their ears. (The IPAB would make recommendations to Congress on ways to save money, and Congress would have to act on them. But since Medicare spending has slowed dramatically in the last couple of years, the requirement has yet to kick in, and President Obama hasn’t bothered to appoint anyone to what is still a theoretical board.) They waged a virtual war on comparative effectiveness research, effectively saying that it was dangerous to even ask which competing treatments work well and which don’t.
In other words, most Republicans believe we must, must, must reduce the cost of Medicare—excuse me, Do Something About Entitlements—but are adamantly opposed to every step that has been taken to reduce the cost of Medicare. I’m sure that lots of them are sympathetic to Ryan’s vision, which is to essentially turn the program into a voucher system, in which the government helps you buy private insurance, and over time costs magically go down (and if you’re thinking that sounds a lot like what people are getting on the Obamacare exchanges, any Republican will tell you that it’s totally different because freedom).
So let’s give Paul Ryan some credit. Sure, his numbers might not add up. But when he puts out a budget, there’s no mystery about where he’s coming from and what he wants to do.
By: Paul Waldman, Contributing Editor, The American Prospect, April 1, 2014
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