Is the Supreme Court Capable of Discerning the Corruption they Engender?

Oddly, Citizens United v FEC retains the focus, and ire, of campaign finance reform devotees. Recent Supreme Court cases, of which two will be examined here, are barely mentioned. It's as if CU v FEC is a black hole, drawing all debate to it, or has generated such cynicism and exasperation, one can not dare to contemplate the deterioration which has followed from Citizens Uniteds' basic premise: the Robert's Court is determined to demolish any restriction imposed on campaign donations.

And so, sensing an opportunity, Shawn McCutcheon, a businessman, engineer, and Republican activist, sued the FEC in 2014, with the support of the Republican National Committee. In McCutcheon v. Federal Election Commission his lawyers argued one of the restrictions originally imposed by The Federal Election Campaign Act of 1971 and enhanced by Bipartisan Campaign Reform Act violated his 1^st Amendment right to unrestricted speech.

McCutcheon argued the limit on the biannual aggregate contribution was unconstitutional. While the government could restrict the amount he might donate to any individual, he conceded, it could not prevent him from donating to any number of individual up to the imposed limit.

This very issue had been debated in Buckley v. Valeo, and the eight justices (one recused himself), decided with six in favor, of upholding a biannual limit on total contributions. But, in a decision which invalidated the prior ruling, the five conservative judges overruled their predecessor's decision. Justice Thomas, who had already made himself plain in prior decisions, wrote a concurring decision where he indicated his desire to eliminate all contribution limits.

Though it did not overturn individual limits, SCOTUSblog (a joint effort of lawyers and law professors), had this to say about McCutcheon v. FEC: “The notion of 'corruption' has become a narrowly defined one that will be hard to prove.” The joint authors, Ronald Collins and David Skover, concluded that the only possible corruption related to campaign finance would be quid pro quo. Justice Kennedy had already concluded as such in his Citizens United v FEC opinion. How wrong they were.

In the same year, a public official was convicted by a federal jury for corruption. This case clearly relates to both the concept of donations and corruption in the United States. Bob McDonnell, Governor of Virginia, was convicted of corruption for accepting gifts totaling more than $175,000 from Jonnie R. Williams Sr, founder of Star Scientific, and peddler of the company's “dietary supplement”. In exchange for these gifts, which included paying for McDonnell's daughter's wedding, flights in a private jet plane, exclusive jewelry, and Final Four tickets, the Governor arraigned meetings and promoted the bunk and junk Jonnie was selling.

Incredibly, disgustingly, gifts such as the McDonnells received are legal, but collusion, and favors in return, are not. The federal jury discerned enough cooperation between Jonnie and Bob to send the Governor (no punishment for Jonnie) to jail for a measly two years for betraying the sacred public trust. Until the Supreme Court intervened.

In 2016, the Justices heard McDonnell v. United States, and ultimately determined in an eight to zero conclusion, there was not enough evidence for a conviction. The Justices said that McDonnell's favors, setting up meetings and urging subordinates to support Star Scientific, did not constitute corruption. Specifically, the law under which McDonnell was sued said “it a crime for a public official to 'receive or accept anything of value' in exchange for being 'influenced in the performance of any official act.'”

The dilemma revolved around the definition of “official act”, and though McDonnell had organized meetings between Jonnie and a top state health and human services official, the Supreme Court declared this was insufficient to convict. McDonnell's lawyers helpfully reminded the court of Citizens United where the majority opinion declared, “ingratiation and access” were “not corruption”. Kennedy had said the appearance of corruption was of no importance, only actual quid pro quo. But now Supreme Justices couldn't recognize it when they saw it. In defense of the opinion, Chief Justice Roberts said, “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf and include them in events all the time”. But citizens know they only do it for expensive Rolex watches. SCOTUSblog marked the acquittal (actually a remand, returning the case to a lower court with the instruction to take a narrow view of “official acts”) with an astonished comment: “Mostly, though, it was a bad day for Americans, as eight Supreme Court Justices all but told us that we must tolerate some level of “pay to play” politics in democratic governance.”

Of course, as I hope I've shown in the last couple articles, this system, by which those who can afford to pay, receive all the benefits are neither new, but certainly under renewed attack since 1971. First, the Supreme Court determined a citizen could use an unlimited amount of their own money to fund their personal campaign. Then they declared in favor of corporations spending an unlimited amount on campaign advertising. In 2014, the Justices determined it was unconstitutional to have a cap on biannual donations, and in 2016 they said, only the most obvious forms of “quid pro quo” were corruption. The original statement in defense of campaign finance reform is dead, a pathetic reminder to a time not long gone, when the people were protected from oligarchs. The court not longer believes campaign finance protects the “integrity of our system of representative democracy,” finding limits an important method for “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office.”

Summary: Supreme Court Justices on Buckley/McConnell/Citizens United/McCutcheon, "We Will Not Tolerate Corruption" - On McDonnell, "Nothing to See Here!"

Perhaps, as unelected officials they're inured against the massive amount of funding their fellows in the House, Senate, and the White House require to continue in office. Their decisions though, have only made the quest for funds more essential, as the price of office has risen with each Supreme Court decision. The result makes sense, as the more money allowed, the more that will be spent. It is imperative, before the process reaches it logical conclusion, to question the Robert's court endgame. Are the conservative justices as determined to eliminate all restrictions as Thomas, concealing their true beliefs in the interest of a slow destruction, or are they oblivious to the damage they wreck on public confidence in both their Institution and the elections of the President, Senate, and other lesser positions?