Just Shy of Bribery: The Roberts Court Embraces Francis Underwood’s View of Washington

Posted in: Constitutional Law

In Season 1 of the Netflix Original Series House of Cards, Kevin Spacey masterfully portrays Francis Underwood, whose scheming and manipulation take him from House majority whip to the Vice Presidency. Season 2 centers around a money-laundering scheme. An increasingly malevolent American billionaire partners with a shady Chinese businessman to funnel illegal contributions through a Native American casino and to Congressional campaigns. Underwood uses the scandal and misuses various people in order to further his career.

House of Cards is over-the-top fiction, but it succeeds because it exaggerates real people to fashion its characters, rather than creating them from whole cloth. When he makes his first appearance in Season 1, the simple-living Midwestern billionaire Raymond Tusk is a passable imitation of Warren Buffet. Underwood’s career appears to be based on Lyndon Johnson’s path to power, while his relationship with his wife (played by Robin Wright) brings to the small screen some of the more lurid speculation about the relationship between Bill and Hillary Clinton.

House of Cards is at its best when its characters do and say extreme things that contain more than a kernel of truth. For example, in the penultimate episode of Season 2, Underwood’s successor as whip, an Iraq-War-veteran-turned-ruthless-Congresswoman, appears to balk at Underwood’s boldest play for power. “What you’re asking,” she objects, “is just shy of treason.” Unfazed, Underwood replies: “Just shy, which is politics.”

Much of what Underwood himself does is not simply politics, of course; it’s criminal. But the suggestion that anything shy of treason is politics, the viewer understands, is meant to be a characterization of Washington politics even as practiced by ordinary Washington politicians.

Sadly, that cynical view of American politics was on full display last week in the real-life Supreme Court of the United States. In its latest dreadful ruling, the Court’s Republican-appointed majority invalidated the limits on the total amount of money an individual may contribute to federal candidates and party committees. Five Justices thought that restricting donors to giving $123,200 per two-year election cycle—on top of the unrestricted millions that they may spend on “independent” expenditures—was a violation of the First Amendment.

As I shall explain in this column, last week’s decision in McCutcheon v. Federal Election Comm’n is poorly reasoned as a matter of legal craft. But beyond that, it reveals a Court with an utterly benighted view of politics.

Fast and Loose With Precedent

The modern constitutional case law regarding campaign finance regulation begins with the 1976 ruling in Buckley v. Valeo. To oversimplify somewhat, Buckley invalidated limits on how much money a candidate can spend, but upheld limits on how much money an individual may contribute to a campaign. The Court’s theory was that limits on campaign expenditures directly limit political speech, whereas someone who contributes to somebody else’s campaign is not directly speaking, but rather giving money to others to use as they see fit, including in shaping campaign speech. Accordingly, the Buckley Court applied the most demanding First Amendment test of “strict scrutiny” to the expenditure limits, but a more permissive standard to contribution limits.

In the ensuing thirty-eight years, Buckley’s line between expenditures and contributions has been criticized from both ends. Proponents of vigorous campaign finance regulation argue that money is not speech and that even though money can facilitate speech, the same interests that justify contribution limits also justify expenditure limits. Meanwhile, proponents of a wide-open campaign finance regime argue that current case law provides insufficient protection for campaign contributions.

In McCutcheon, only one Justice voted to eliminate the expenditure/contribution distinction. Justice Clarence Thomas did not join the lead opinion, writing only for himself that he would overrule Buckley and apply the strict scrutiny standard to contribution limits as well as to expenditure limits.

Justice Thomas’s concurrence in the judgment had the virtue of honesty. By contrast, the lead opinion, written by Chief Justice John Roberts and joined by Justices Scalia, Kennedy, and Alito, purported to adhere to Buckley’s expenditure/contribution line, but in fact dissolved it.

The Buckley Court applied the following standard to contribution limits: they must advance “a sufficiently important interest and employ[] means closely drawn to avoid unnecessary abridgement of associational means.” Although that language may sound demanding, constitutional lawyers know it as “intermediate scrutiny”—a test that is considerably less demanding than the strict scrutiny standard applicable to direct censorship.

Beyond the fine verbal distinctions, we know that the Buckley standard for judging contribution limits is only moderately demanding because the Buckley Court itself upheld contribution limits. Indeed, it also upheld the predecessors to the very aggregate contribution limits that were challenged in McCutcheon.

Chief Justice Roberts evades the Buckley standard through two dubious maneuvers. First, his McCutcheon plurality opinion quotes the intermediate scrutiny language of Buckley in the way that a layperson might. To the untrained ear, that language does sound almost as rigorous as the strict scrutiny standard, and so the Chief Justice says it is unnecessary to “parse the differences between the two standards.” But that assertion appears at best disingenuous to anyone who has carefully studied the Court’s case law.

The Chief Justice’s path around Buckley’s direct precedential force is also unconvincing. He begins by saying that the Buckley Court had only devoted three sentences to explaining why the aggregate contribution limits were constitutional, and therefore that it provides only limited “guidance” on the issue. Prior cases do not, however, establish a minimum word length for precedential force.

To be sure, the plurality opinion also contends that circumstances have changed since Buckley. Whereas the Buckley Court thought that the aggregate limits served to prevent donors from circumventing individual limits, additional restrictions adopted since Buckley now supposedly provide assurances against circumvention, so that the aggregate limits are no longer necessary.

As I shall next explain, however, the plurality’s views regarding circumvention rest on a set of deeply flawed, and deeply myopic, assumptions.

The Court’s Myopia

The plurality opinion in McCutcheon, like the majority opinion in Citizens United v. FEC, repeatedly characterizes the permissible goal of campaign finance regulation in extraordinarily narrow terms. The government may restrict campaign contributions in order to avoid the reality or the appearance of a quid pro quo, the conservative majority states, but not in order to limit the broader corrupting influence of money on politics.

On the contrary, the Court’s conservative majority treats that broader influence—the ability of wealthy individuals (and in other contexts, corporations) to “speak” to elected officials and the public by spending their fortunes promoting or attacking candidates or causes—as at the heart of the First Amendment. Frank Underwood says anything short of treason is politics. John Roberts thinks that anything short of provable bribery is constitutionally protected freedom of speech.

Dissenting in McCutcheon, Justice Stephen Breyer, writing for himself and Justices Ginsburg, Sotomayor, and Kagan, strongly criticizes the plurality’s apparent naïveté. Wealthy donors, he explains, “buy” politicians even when they do not reach an explicit agreement.

In a remarkable Appendix to his dissent, Justice Breyer provides numerous examples of coordinated fundraising by members of Congress and political parties. His examples show how, even without any quid pro quo, political donors buy access and influence. More directly to the narrow question of circumvention, they show how parties and their candidates work together.

Chief Justice Roberts takes issue with Justice Breyer’s evidence, arguing that it does not show that aggregate limits are necessary to block circumvention of the individual contribution limits; other mechanisms may suffice, the Chief Justice says. But even if that were so, it would only address the circumvention concern, rather than the broader purpose of the aggregate limits.

Aggregate limits do not serve only to prevent political donors from funneling more than the maximum individual contribution (currently $5,200 per election cycle) to an individual member of, or candidate for, Congress. Indeed, that is not even their main justification.

The public may legitimately worry that a wealthy donor who gives money to individual members of Congress does so in the hope of influencing legislation. The fact that his contribution buys influence with an individual member of Congress is chiefly worrisome insofar as that member’s vote may tip the net balance for or against a bill becoming law. The ability of a donor to buy more members of Congress makes that outcome even more likely.

Accordingly, rather than serving to backstop the individual limits, aggregate limits are best understood as the primary line of defense against wealthy donors buying Congress as a whole. The Court’s focus on circumvention is therefore misguided. A donor who comes to party leaders with two million dollars to spread among party organizations and candidates—as McCutcheon now allows him to do—can have that much more influence over national policy than one who is legally constrained to donate “only” $123,200.

Raymond Tusk and Frank Underwood surely get it. They understand that more money buys more influence. So do non-fictional figures like Senator John McCain and former Senator Russ Feingold. The wonder is that five Justices of the Supreme Court do not get it—or worse, that they do get it, but that they think that a Congress that is super-responsive to the interests of the super-rich is a cherished feature of our Constitution, rather than a pathological bug that desperately needs to be fixed.

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