Civil and Human Rights

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 1964.


With respect to the first part of the equation — making it easier to spend money in elections — the Roberts Court has been steadily moving to disassemble the system of campaign finance regulation created by lawmakers of both parties and upheld as constitutional for decades.


The 2010 Citizens United decision struck down limitations on how much can be spent independently of a candidate’s campaign, opening the floodgates of big-money super PACs. These political action committees can now raise unlimited amounts of money from individuals, corporations and unions to support or oppose a political candidate.


As now-retired Justice John Paul Stevens observed in his powerful dissent from the Citizens United decision, “while American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”


The McCutcheon decision extended the Citizens United majority’s reasoning to strike down limits placed on the total amount an individual can give to federal candidates, party committees and PACs. These limits were first passed in the 1970s, in the wake of the Watergate scandal, to prevent corruption. Until McCutcheon, the court had never struck down a federal contribution limit.


One of the most disturbing parts of Roberts’ opinion is his cramped understanding of the government’s need to have campaign finance regulations. Roberts claims, contrary to long-standing court precedent and constitutional history, that the government can only pass narrow campaign finance laws, framed to prevent actions akin to bribery.


But our nation’s founders thought about the problem of corruption more broadly. They were concerned about officials or government institutions becoming dependent on special interests or big money — basically, dependent on anything or anyone other than the voters.


As James Madison explained, our democracy should belong to all citizens—“not the rich, more than the poor.”


The Roberts Court, however, rejected the beliefs of our Founding Fathers — concluding in McCutcheon that the government does not have a legitimate interest in preventing corruption from “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.”


With its overriding concern to ensure that everyone participates in the political process — especially people who want to donate a lot of money to candidates — surely the Roberts Court must be committed to upholding the right to participate in democracy the old-fashioned way: in the voting booth. Well, think again.


Last year, Roberts led a majority to strike down a key part of the 1964 Voting Rights Act, a statute that has protected the right to vote for millions of Americans. In Shelby County v. Holder, the court gutted a provision that required state and local governments with a history of voter discrimination to get approval from the federal government before making any changes in election laws.


Roberts concluded that the government’s interest was insufficient to support this provision of the voting rights law. Congress had not shown enough evidence, according to Roberts, to subject these states and localities to close scrutiny in order to prevent voter discrimination.


Justice Ruth Bader Ginsburg wrote a powerful dissent, noting that the Constitution expressly authorizes Congress to enforce the guarantee of the right to vote free from discrimination. Given this express constitutional authorization, the court’s job, Ginsburg wrote, was to defer to Congress and the extensive evidence it had collected to show that voting discrimination is still a serious problem in the affected states and localities.


But the court’s conservative majority held to its cramped vision of Congress’s power to ensure free and fair elections. Just as this same majority, in McCutcheon, insisted on its extremely narrow definition of the government’s interest in passing campaign finance regulations.


Roberts is correct that the “right to participate in electing our political leaders” is fundamental in our democracy.


But he is wrong to lead the court in the direction of greater protection for political participation when it comes to contributing campaign cash — and less protection when it comes to accessing the ballot box.

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