American Justice 2014. Garrett Epps

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СКАЧАТЬ thus refuse to disclose documents under a statutory provision protecting “personal property.” Roberts wrote,

      In ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. . . . [Thus] the noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read”; “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” which has little to do with “corn” (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness.”

      The statute’s “personal privacy” protection, he concluded, “does not extend to corporations. We trust that AT&T will not take it personally.”

      During OT13, Roberts authored four high-profile opinions in cases that concerned the federal government’s power to make and enforce treaties, the states’ power to protect abortion facilities from disruptive protest, the right of the police to search the contents of a cellphone when they have arrested its owner, and the federal government’s power to limit contributions to federal election campaigns.

      The campaign-finance opinion, called McCutcheon v. Federal Election Commission, was his signature work for OT13. The case followed the court’s 2010 decision, Citizens United, in concluding that the First Amendment was an all but impassable obstacle to efforts to limit the role of concentrated wealth in politics.

      Citizens United had dealt with the issue of “independent expenditures” by for-profit corporations during federal elections. The Bipartisan Campaign Reform Act (“McCain-Feingold”) prohibited corporations from spending money to influence elections—in that case, by buying television time to advertise a film critical of then Senator Hillary Rodham Clinton—within thirty days of the vote. The court concluded that Congress could put no limits on these “independent expenditures” by corporations, because they could not possibly create “corruption or the appearance of corruption.” Everyone understood that they were independent. “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Justice Kennedy wrote for the majority. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

      But Citizens United was simply one major battle in the conservative legal movement’s long war against any limitations on money in politics. The court had specifically refused to discuss a different issue: whether direct contributions—where an individual or corporation puts a check into the outstretched hand of a political candidate—can be limited because of the interest in preventing corruption. Thus the stage was set for McCutcheon.

      The specific issue in McCutcheon was whether Congress could enact “aggregate contribution limits” on political donors. Since the reforms of the 1970s, individuals may contribute to campaigns and party committees but only in limited amounts. (Direct contributions by corporations are forbidden, for now.) McCain-Feingold limited individual donors in how much they can give to individual candidates or party committees. These limits, called “base limits,” were not at issue in McCutcheon. But the act also limited the “aggregate amount” any one donor could give to all federal candidates and committees in a given election cycle—a total of $48,600 to individual candidates and $74,600 to committees.

      Shaun McCutcheon, an Alabama businessman, wanted to give more than that—he was maxed out on his aggregate limit but wanted to give contributions patriotically denominated $1,776 each to a total of a dozen more candidates during the 2014 cycle. He brought suit, alleging that the aggregate limits burdened his First Amendment rights.

      Four justices of the court (Roberts plus Antonin Scalia, Anthony Kennedy, and Samuel Alito) agreed that the aggregate limits violated McCutcheon’s rights; Clarence Thomas provided the fifth vote for McCutcheon but wrote separately to suggest that both base and aggregate limits are unconstitutional.

      John Roberts wrote the opinion. It combines the best and worst of his judicial style. The prose is self-assured and clear. The legal conclusions are more debatable; the disregard for precedent is not. Roberts first brushed aside the court’s first major campaign finance-reform case, Buckley v. Valeo (1976). That case held that “aggregate limits” were justified by the possibility that wily donors would use multiple contributions to “circumvent” the limits on direct contributions. That part of the Buckley opinion, he wrote, was only “a total of three sentences”—hardly worth noticing, really. He didn’t overrule it; he made it disappear.

      Without the Buckley precedent, Roberts then weighed the government interests at stake in the aggregate limits and found them, in essence, nonexistent. Congress, Roberts repeated, cannot seek to “‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’” Thus, he said, its only legitimate reason for regulating campaign finance is “preventing corruption or the appearance of corruption.”

      Roberts, however, defined “corruption” only as what lawyers call “quid pro quo” (“this for that”) corruption. That requires a bargain like, “I will give you $200,000 to vote for my subsidy.” Roberts did not deny that the objects of McCutcheon’s bounty were likely to feel grateful to him and to desire to please him while in office. This took the analysis back to Citizens United. In that case, the Court had noted that candidates who benefited from corporate “independent expenditures” might feel grateful to the corporations that made them. Once in office, they might even give those corporations special access. So what? “Ingratiation and access . . . are not corruption,” Kennedy had written for the majority. Now Roberts applied the same logic to direct contributions. True, a candidate would feel grateful to McCutcheon and might be eager to please him, might give him special access, might consult him in preference to others who had not contributed. What’s your point? asked Roberts in his opinion. That’s not corruption; it’s democracy at work.

      “There is no right more basic in our democracy than the right to participate in electing our political leaders,” Roberts began. “Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”

      McCutcheon, then, was seeking only his due as a citizen—the right to take part in politics. Aggregate limits discriminated against him by limiting the number of candidates he could support. Here is the heart of the opinion and perhaps of John Roberts’s view of democracy:

      The individual may give up to $5,200 each to nine candidates, but the aggregate limits constitute an outright ban on further contributions to any other candidate. . . . At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance. . . . It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.

      As a matter of logic, this conclusion is demonstrably false. The limits do not require a donor “to contribute at lower levels than others”; they mean that, no matter how rich a donor may be, he or she can give no more than any other citizen. But Roberts meant something different: the donor limits meant that McCutcheon would be at a disadvantage among the other wealthy donors to a specific candidate. Some would be able to give the full amount, while McCutcheon would give less because he wanted to support СКАЧАТЬ