Chapter 4

Who Broke Our Democracy?

How Courts Have Struck Down Limits on Money in Politics

The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the first amendment.

—US Supreme Court, Buckley v. Valeo, 1976

If money is speech, as the Supreme Court says, then more money must be more persuasive speech, and those ideas with the most money behind them will tend to prevail. This is un-American.

—US Senator Barbara Boxer

When Senator James Buckley lost a political battle on the floor of the Senate in 1974, he didn’t get mad. He got even.

Senator Buckley strongly opposed the new campaign finance rules passed by Congress in the wake of Watergate. When President Gerald Ford signed the Federal Election Campaign Act (FECA) of 1974 into law, Buckley followed a great American tradition of sore losers.

He sued.

But before telling that story, let’s first meet James Buckley.

Who Is James Buckley?

James Buckley inherited a small fortune as part of his family’s oil and gas services company, Catawba, in 1958. His father, William F. Buckley Sr., founded Catawba to exploit oil and mineral rights in Venezuela and Mexico. Like oilman Fred Koch, who passed on extreme wealth and extreme politics to his sons Charles and David, Bill Buckley Sr. was heavily invested in politics as well as oil and gas. James ran for the US Senate from New York in 1968 at the urging of his well-known brother, columnist William F. Buckley Jr. Running as a member of the Conservative Party, a marginal player in New York politics, he spent little money and received 16 percent of the vote.

Buckley tried again as a Conservative Party candidate in 1970 against a sitting Republican incumbent. During a televised debate, he agreed that campaign spending should be limited,⁹³ and yet he spent $1.8 million on his campaign—a huge sum at the time. James Buckley won the three-way race with 38 percent of the vote.

After the Watergate reforms, Buckley reversed his public support for campaign spending limits. Instead of backing spending limits as he had promised, Buckley personally went to court to void the law his colleagues had just passed.

Political extremes on the left and the right joined Buckley in the lawsuit, including the liberal Eugene McCarthy, the Socialist Labor and Socialist Workers parties, the American Conservative Union, and the American Civil Liberties Union (ACLU). The case became known as Buckley v. Valeo, legally pitting Buckley against Francis R. “Frank” Valeo, the clerk of the Senate. Although he won in court, Buckley lost his reelection campaign in 1976 as well as a 1980 Senate race in Connecticut. After losing decisively in the arenas of public opinion and elections, James Buckley received a lifetime appointment as a federal judge from President Ronald Reagan in 1985.

Court Rulings before Buckley

For nearly two hundred years of US history, judges had not significantly meddled with campaign finance law. State and federal laws limiting campaign spending had been on the books for more than seventy-five years prior to Buckley with little litigation.

The First Amendment did not suffer during that time.

In 1898, the Ohio Supreme Court upheld campaign spending limits and removed John Mason from office for violating the limits.⁹⁴ In 1921, Truman Newberry was convicted for violating campaign spending limits during his 1918 race for the US Senate. The US Supreme Court overturned his conviction in the case Newberry v. United States, which held that Congress could limit spending in general elections but not during primaries and party nominations because those were private affairs.⁹⁵ But the Court reversed this ruling in 1941 in the case United States v. Classic.⁹⁶

Congress passed new limits in 1925 for general election campaigns by amending the Corrupt Practices Act. These limits were not struck down by the courts, but they also were not enforced by the executive branch.

Facts Be Damned—but Lower Courts Uphold the Law

After the Watergate scandal, Congress enacted tough new limits on campaign contributions and spending.⁹⁷ To ensure the new law would be in effect for the 1976 elections, Congress included a provision proposed by Senator Buckley for expedited legal review.

Normally a law must take effect before somebody can challenge it in court, so that there is a track record of how the law actually works for the court to consider. Not in this case. Lawyers simply fabricated claims about how they expected the law would work.

On January 24, 1975, US district court judge Howard Corcoran certified the constitutional questions involved in the case without making any effort to ascertain any facts. On August 15, an eight-judge panel of the US Court of Appeals upheld almost all of the law.⁹⁸ The court’s logic was straightforward:

The power of Congress to regulate federal elections embraces, in our view, the power to adopt per candidate and overall limitations on the amount that an individual or political committee may contribute in the contest of federal elections and primaries.⁹⁹

The court noted that the problem of money in politics had grown so substantial that “the situation not only must not be allowed to deteriorate further, but that the present situation cannot be tolerated by a government that professes to be a democracy.”

Given the additional deterioration since then, where does that leave our democracy now?

The appeals court concluded by noting that the new law’s provisions “should not be rejected because they might have some incidental, not clearly defined effect on First Amendment freedoms. To do so might be Aesopian in the sense of the dog losing his bone going after its deceptively larger reflection in the water.”¹⁰⁰

The US Supreme Court wasted no time in dropping the bone.

Supremely Unusual Proceedings

The Supreme Court issued its final ruling on January 30, 1976, with campaigns already underway for November. Contrary to Court custom, no justice signed the Buckley opinion.

Perhaps nobody wanted to take responsibility for it. Multiple authors drafted it, most likely Justices William Brennan, Potter Stewart, and Lewis Powell, who were the only three who agreed with the entire opinion. Powell had been put on the court by President Nixon shortly after writing a secret memo describing how business interests needed to take over the judiciary.¹⁰¹ Stewart was a centrist. Brennan was one of the Court’s leading liberals.

It is quite possible Justice Brennan later regretted his part in the ruling, as the legal think tank founded in his honor by his former clerks made overturning the Buckley ruling one of its first priorities.¹⁰²

In the Buckley ruling, each justice had his own dramatically differing view about what the First Amendment says. Some justices saw the word “money” in the First Amendment—perhaps written in invisible ink because others did not see it there. There were multiple dissents and concurring opinions, which allow us to see how the votes broke down regarding the different pieces of FECA.

Six justices supported the limits on contributions from donors to candidates, while seven opposed the overall limits on what a candidate could spend. You might think that when the members of the Supreme Court cannot agree amongst themselves about what the Constitution says, they would defer to people who know much more about political campaigns than they do—like legislators. Instead, the justices thought they knew better than everyone else.

Mistake #1: Money = Speech

As the centerpiece of its 76,000-word opinion in Buckley v. Valeo (the longest in Court history), the Supreme Court majority argued that spending money to disseminate speech is the same thing as the First Amendment freedom of conscience and the ability to publish one’s thoughts through the free press. This, the Court said, is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”¹⁰³

While this is mostly true, Buckley wrongly assumes that the speaker must spend the money to convey an idea, not the listener.

Perhaps because it was so rushed to issue an opinion, or perhaps simply because different justices asserted their own personal ideologies, the Buckley court fundamentally conflated free speech with paid speech. Whether by accident or design, the Court ignored the distinctions I’ve drawn in chapter 2.

Judge Skelly Wright, one of the lower-court appellate judges who upheld the law, understood the difference between paid speech and free speech. He later observed, “The Court told us, in effect, that money is speech. … [This view] accepts without question elaborate mass media campaigns that have made political communications expensive, but at the same time remote, disembodied, [and] occasionally … manipulative. Nothing in the First Amendment … commits us to the dogma that money is speech.”¹⁰⁴

Misreading King Solomon, the Court Splits the Baby

King Solomon famously found the truth when two women quarreled over who was the real mother of an infant. After saying the baby should be split in two, he noticed that the real mother immediately gave up her claim in order to save the child’s life. Solomon then gave the baby, unharmed, to her.

When members of the Supreme Court quarreled about whether the post-Watergate limits on money in politics voided the First Amendment, they gave up on the truth. Instead, they actually split the baby, handing back only half a law to Americans.

To negotiate a compromise that a majority on the court could support, the Buckley ruling upheld campaign contribution limits but removed the spending limits that were central to the law’s success. In doing so, it effectively destroyed the efforts of citizens and Congress to reclaim our democracy and our liberty for the next forty years. That’s something no foreign invader or terrorist has ever managed to do.

The logic of Buckley barely held together at the time: How could money sometimes be speech and sometimes not? It has since been ridiculed by both supporters and opponents of campaign finance reform.

Only four justices agreed with treating contributions and spending differently. A fifth, Justice Thurgood Marshall, agreed in principle but thought that a candidate’s contributions, such as Donald Trump’s, to his own campaign should be limited.¹⁰⁵ Chief Justice Warren Burger understood that half of a baby will not survive, saying prophetically, “The Court’s attempt to distinguish the communication inherent in political contributions from the speech aspects of political expenditures simply will not wash. … The Court’s result does violence to the intent of Congress.” He was right.

The Court’s Untenable Justification

The Buckley court then needed to justify its compromise. Money was always speech, Buckley inferred, but some reasons to limit speech were very good and others just weren’t good enough.

The Court concocted a twisted, narrow definition of corruption (discussed in chapter 3) as an explicit agreement to trade a campaign contribution for a government favor. This risk of bribery meant that there was a good reason for contribution limits. The Buckley opinion then noted there was no chance that candidates could bribe themselves, so limits on how much personal wealth a candidate could spend were rejected.

Buckley went on to void all candidate campaign spending limits, reasoning that nobody is bribed just because somebody spends five times as much as somebody else to disseminate one viewpoint.

The Buckley opinion went out of its way to reject political equality as a good reason for spending limits—even though we enforce equal time requirements in town halls, on the floors of Congress, and even within the Supreme Court itself. To explain themselves, Buckley’s anonymous authors made up a bald-faced assertion:

The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.¹⁰⁶

Buckley was correct on the goals of the First Amendment but flat-out wrong that limiting campaign spending doesn’t further those goals. In fact, as chapter 1 discussed, spending limits allow the widest possible dissemination of information from diverse and opposing sources. By equating campaign spending with free speech and then ignoring the reasons to limit that spending, the Court’s decision opened the floodgates to corruption, inequality, and foolishness in politics.

Is Corruption in the Eye of the Beholder?

Beyond its narrow definition of quid pro quo corruption to justify limits on campaign contributions, the court added another broader reason: the “appearance” of corruption. In other words, we don’t have to know for sure that each and every campaign contribution leads to a specific bribe; we can limit campaign contributions if overall a system of large contributions undermines people’s faith in our government.

It sounds okay on the surface, but this rationale of limiting money in politics whenever it “appears” corrupting has proven to be a can of worms.

The problem is, as we discussed in chapter 3, different people have different definitions of corruption. We now have the Roberts Court telling the citizens of the United States that we do not get to decide for ourselves what appears corrupting to our own eyes. Rather, five unelected judges who have zero experience with political campaigns will substitute their judgment for ours.

Corporations Become People—Long Before Citizens United

Striking down half of the post-Watergate campaign finance law was only the beginning of Buckley’s tyranny.

Two years later, the Supreme Court used Buckley’s twisted logic to destroy a Massachusetts Corrupt Practices Act provision from the early 1900s that the legislature had recently updated. The law banned CEOs from using shareholder funds for candidate and ballot measure campaigns. As with Buckley, lower courts upheld the law and the Massachusetts Supreme Court found it constitutional.

A majority on the US Supreme Court disagreed.

The First National Bank of Boston v. Bellotti opinion, written by Justice Lewis Powell, a former corporate lawyer, claimed that for-profit corporations were to be treated as people under the Fourteenth Amendment. That amendment, meant to protect the rights of former slaves, guaranteed equal protection of the law to all people. Powell went on to argue that “the inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”¹⁰⁷

Tell that to Kai Newkirk, who John Roberts had arrested for speaking without permission. The Supreme Court finds no value in the speech of real people if they are not members of the Supreme Court bar association—their speech has no inherent worth based on their identity.

The Bellotti ruling to allow unlimited corporate spending in ballot measure campaigns split the court along a controversial 5–4 vote—a sure sign that so-called constitutional experts can disagree about what is corrupting even while citizens largely agree. Conservative justice William Rehnquist dissented, noting that the Court should not ignore the consensus of the federal government and thirty state governments that had banned corporate money from being used in elections.

Ballot Measures Go Up for Auction

A few years later, in 1981, lower courts extended the logic in Bellotti and struck down a local ordinance in California that limited real people’s contributions to ballot measure campaigns. The court reasoned that because no elected officials are involved in ballot questions, there was nobody to bribe and therefore no reason to limit campaign money.

Of course, there were reasons other than bribery, such as ensuring the wisdom of the crowd by hearing from all sides of the issue. But the courts didn’t want to hear about those reasons. As a result, the citizen initiative process in California and twenty-three other states has become overwhelmed with big money.

It’s ironic that a tool that was created a hundred years ago to help citizens take back control from corrupt legislatures has been converted into a tool for corporations and billionaires to parade their ideas before voters. Clever candidates have begun using ballot measure campaigns as a way to circumvent contribution limits on their own campaigns—they can accept unlimited donations to put themselves in TV ads so long as they talk about the ballot measure instead of their own election.

The Other Shoe Drops as Courts Gut Contribution Limits

Although the Buckley v. Valeo ruling did uphold the federal limit of $1,000 on contributions to candidates, that limit was so high at the time it restricted very few donations. It was a bit like upholding a 200-mile-per-hour speed limit—only a few cars can go that fast anyhow.

When voters in the 1990s began passing state and local voter initiatives that limited contributions to amounts that were within striking distance of what many Americans could afford, some judges balked.

In 1995, a federal appellate court overturned a lower court ruling and struck down Missouri’s Proposition A, which 74 percent of voters passed to limit legislative contributions to $100. The court left in place slightly higher contribution limits enacted by the legislature, which would again be challenged five years later, in a case known as Nixon v. Shrink Missouri Government PAC.

In 1996, a federal court overseeing the District of Columbia struck down the low contribution limits that had been approved by voters four years earlier. The court noticed that the limits reduced overall spending by candidates who couldn’t raise as much money as they had previously.¹⁰⁸ Therefore, the court thought the contribution limits acted in fact as a spending limit.

The DC court noted that while Buckley had allowed for limits on contributions, those were only okay because they were so high that only 5 percent of contributions had previously been over that limit. We’ll never know if higher courts would have agreed with the local judge because the incumbents on the city council took the opportunity to gut the initiative that voters had approved and put in place much higher limits.

In 1997, the Oregon Supreme Court also struck down low contribution limits passed in Measure 9, after the law had been in place for one election cycle. The court didn’t care that 72 percent of Oregonians thought that limiting the paid speech of each person would allow more people to be heard and reduce the “undue influence” of wealthy donors. The Oregon court didn’t even bother with a trial to examine evidence as to how the law had worked in practice. The judges simply decided they knew better than Oregonians did about how they should govern themselves.

The judicial assault on democracy kept rolling. In 1998, California district judge Lawrence Karlton struck down Proposition 208, passed by voters in 1996 to set contribution limits of $250 for legislative candidates. As in the District of Columbia, when it appeared likely Karlton’s ruling would be reversed upon appeal, the California legislature moved to enact much higher contribution limits, deceptively telling voters that they were better than nothing.

The “Can’t Vote, Can’t Contribute” Rule

Imagine if citizens in a New England town meeting had to listen while out-of-state lobbyists talked for hours until everyone had to go home. They’d never allow it.

Or imagine if foreign nations or corporations could spend unlimited amounts to influence US elections. That’s wrong—outsiders shouldn’t be spending money to influence elections they cannot vote in.

Well, in 1996, a federal court struck down Oregon’s Measure 6, which prevented candidates from accepting contributions from people who lived outside the candidate’s district. The court found the “can’t vote, can’t contribute” rule a violation of the First Amendment. Using Buckley’s strained logic, the court said contributions from outside the district weren’t any more likely to bribe a legislator than contributions from within the district, therefore they must be allowed. Only one judge disagreed, saying “states have a strong interest in making sure that elections are decided by those who vote.”¹⁰⁹

The Supreme Court of Alaska took a different view on out-of-state campaign money. That court rejected an ACLU lawsuit challenging limits on the amount of funds a candidate could accept from sources outside of Alaska. It found that “nonresident contributions may be individually modest, but can cumulatively overwhelm Alaskans’ political contributions. Without restraints, Alaska’s elected officials can be subject to purchased or coerced influence which is grossly disproportionate to the support nonresidents’ views have among the Alaska electorate.”¹¹⁰

Albuquerque’s Defiance

Rather than repealing its voter-enacted spending limits after the Buckley ruling, Albuquerque, New Mexico, just left them on the books. By the late 1990s, the limits had been indexed to $79,476 for mayor and $7,947 for city council, and they were working well.

Since 1974, when the limits were enacted, the city had seen an average voter turnout in local elections of 44 percent, while other cities in the region typically saw turnout rates of 10 to 12 percent.¹¹¹ Rather than protecting incumbents, as some argue, the limits had benefited challengers. In fact, incumbent mayors were defeated four times under the limits.

Mayoral candidate Joe Diaz wanted to spend more than the limit—he wanted to have more speech than anyone else. The chance to say whatever he wanted in more than fifty free community candidate forums wasn’t enough; he wanted to use paid speech to force-feed his message to those who didn’t want to hear it. So, Diaz went to court. A judge suspended the law and Diaz spent all he wanted to. He lost anyway and then dropped his lawsuit, which allowed the limits to go back into effect.

In 2001, Rick Homans again challenged the limits as part of his campaign for mayor. A lower court again suspended the law and this time the ruling was upheld by an appeals court, leaving them unenforced. Albuquerque appealed to the US Supreme Court.

Unlike the federal post-Watergate law, which the Supreme Court considered on an expedited, fact-free basis, Albuquerque provided a track record for the Court to consider. Judges didn’t need to guess what appeared to be corrupt; there were surveys demonstrating what voters thought was corrupt. They didn’t need to guess whether the limits would harm challengers or make it impossible to campaign for office; Albuquerque’s experience proved otherwise. But the Supreme Court wasn’t interested in evidence. It refused to hear Albuquerque’s appeal, allowing the lower court ruling to stand.

In 1998, a federal appeals court struck down Cincinnati’s spending limits in city council elections. Unlike Albuquerque’s law, which had been on the books for decades, Cincinnati passed its law in 1995 in open defiance of the Supreme Court. The National Voting Rights Institute took up Cincinnati’s case.

The Center for Responsive Politics conducted a study, which found that “the rise in the overall cost of city council races has caused a corresponding rise in the influence of wealthy donors in the City’s elections, with such donors increasingly dominating the campaign financing process … and small donors … becoming marginal players in that process.”¹¹²

An opinion survey agreed, finding that most city residents felt large contributions wielded undue influence, that ordinary voters could not participate politically on equal footing, that big money candidates drowned out other candidates, and that money undermined the fairness and integrity of the political system. The lower court said that none of these problems amounted to bribery, so under Buckley’s precedent the spending limits had to go.

The two judges who signed the Cincinnati opinion actually believed that the Supreme Court was wrong in Buckley and that “the government has an important interest in leveling the electoral playing field by constraining the cost of federal campaigns.”¹¹³ The opinion agreed with Supreme Court justice Byron White’s dissent in Buckley, which said, “It is quite wrong to assume that the net effect of limits on contributions and expenditures—which tend to protect equal access to the political arena, to free candidates and their staffs from the interminable burden of fund-raising, and to diminish the importance of repetitive 30-second commercials—will be adverse to the interest on informed debate protected by the First Amendment.” But these judges didn’t think they should uphold the Constitution as they read it. Like most federal judges, they felt their job was to uphold the US Supreme Court’s precedent in Buckley, even if it was wrong.

A Brief Moment of Hope

For a while, it looked like the 2000s would be different than the 1990s.

On January 24, 2000, the US Supreme Court reinstated Missouri’s contribution limits in the case Nixon v. Shrink Missouri Government PAC. These were no longer the $100 limits approved by voters, but rather $250 limits that the legislature had put in place in an attempt to head off the citizens’ initiative. The Court ruled, correctly, that a state may adopt whatever contribution limits it sees fit so long as they are not “so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.” Had the Court continued to use this commonsense standard to evaluate limits on paid speech, the political landscape over the last few decades might have been quite different.

Based upon the Missouri ruling, lower courts upheld contribution limits of $100 per election in Montana and $200 per election cycle in Vermont. The Montana court noted that two witnesses

testified that they had to work harder and talk to more people in order to raise the same amount of campaign money. While this may be true, it is precisely the purpose behind contribution limitations; for candidates to acquire a broad and diverse base of support to eliminate undue influence, or the appearance thereof, from large contributors.¹¹⁴

The Vermont court found that “contribution limits may in point of fact actually improve candidate-voter communication by lessening the need for candidates to concentrate on wooing big donors. By diminishing the need for targeted pandering, these limits arguably enhance, rather than limit, a candidate’s freedom to communicate.”¹¹⁵

Then, in 2003, the Supreme Court upheld most of the federal Bipartisan Campaign Reform Act (a.k.a. McCain-Feingold) by a vote of five to four. In upholding a ban on using corporate and union treasury funds even in independent campaigns, the Court went beyond Buckley’s narrow definition of corruption.

The Court recognized what Justice Souter noted in the Missouri ruling as “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”¹¹⁶ The Court also relied on a previous opinion, Austin v. Michigan Chamber of Commerce, which noted the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”¹¹⁷ When large donors call the tune or distort the debate, they don’t necessarily bribe anyone; they just have unequal influence—something the Buckley court refused to acknowledge.

Good-Bye Frying Pan; Hello Fire

By 2006, the court flip-flopped again for the worse. President George W. Bush replaced retiring justices Sandra Day O’Connor and William Rehnquist, both conservatives who had upheld limits on big money in politics, with Samuel Alito and John Roberts. All four were appointed by Republican presidents, but Alito and Roberts proved to be much more in sync with big money and corporations than their predecessors. Although our Founders never intended it, changing personnel on our Supreme Court in effect now changes our Constitution.

The Supreme Court took up Vermont’s law and examined mandatory spending limits for the first time since 1976. Not only did the court reject the spending limits, but it reversed the course it set in Missouri and struck down Vermont’s contribution limits as well.

In 2007, the Court again backtracked on its recent tolerance of campaign finance laws. In FEC v. Wisconsin Right to Life, the new 5–4 majority on the Roberts Court said that a nonprofit corporation could fund political attack ads so long as they could be reasonably interpreted as anything besides an effort to defeat that candidate. An ad telling viewers to “call their senator” and tell her to stop supporting an unpopular issue could be construed as an effort to persuade the senator on the issue, not un-elect her. This led to a renewed explosion of the so-called “issue ad loophole” that 527 organizations (political advocacy groups) had begun to exploit in the 1990s.

The Immaculate Conception of Citizens United

James Bopp, the lawyer who had brought the case from Wisconsin, then saw a strategic opening in David Bossie’s cause.

While he was a congressional staffer, Bossie had uncovered some unflattering history about Hillary and Bill Clinton. After House Speaker Newt Gingrich forced him to resign over ethical lapses, Bossie became president of a nonprofit group calling itself Citizens United. Bossie promptly filed a complaint at the Federal Elections Commission alleging that a Michael Moore film criticizing President Bush violated new campaign finance laws. When that complaint went nowhere, Bossie and Bopp figured they had found yet another loophole in the law.¹¹⁸

Bossie produced a film called Hillary: The Movie, which was critical of Senator Hillary Clinton, then running her first presidential campaign. The movie itself was clearly part of the free press, not paid speech, by the simple fact that viewers sought out the opportunity to watch it through a pay-for-view cable network. But Bossie wanted to use unlimited funds not only to pay for thirty-second TV ads that both promoted the film and attacked Hillary Clinton but to subsidize the pay-for-view cable channel—paying it to abandon its normal marketplace practices and instead offer the movie for free. The ads alone violated the McCain-Feingold provision against using corporate funds to attack a candidate within sixty days of an election. Citizens United sued the Federal Election Commission, asking the courts to step in.

The Supreme Court could have done two fairly reasonable things. First, it could have told Bossie that he could use Citizens United’s anonymous and unlimited donations from corporations and others to pay for production costs of the film because that was protected under freedom of the press. Second, the Court could have held that any funds to pay for the thirty-second TV ads and otherwise promote the film would need to come solely from individuals and be disclosed through a political committee. These two things were all Citizens United needed to produce and promote the film, and the case would have been insignificant.

John Roberts actually drafted a narrow ruling that would have done exactly these two things and no more.¹¹⁹ Anthony Kennedy wrote a more radical opinion arguing that the Court should go further and invalidate the McCain-Feingold law. Roberts used Kennedy’s opinion as an excuse to flip-flop, and he joined Kennedy’s sweeping decision to gut most of the law.

More Highly Unusual Proceedings

Justice Souter then wrote a scathing dissent that accused Chief Justice Roberts of violating the Court’s operating principles in order to manufacture an outcome that fit his personal ideology.¹²⁰ Courts, you see, are only supposed to rule on the case in front of them, not reach out and make policy above and beyond the issues in the case. Souter’s dissent never became public, because Roberts struck a deal with him to do something courts almost never do.

Rather than ruling on the narrow issue in front of it, as judges are supposed to, the Supreme Court told David Bossie he hadn’t asked for enough. Roberts ordered Citizens United to come back in the fall and argue that the Court should reverse its own recent precedent and allow unlimited corporate spending for any political attack ad, not just Bossie’s movie.

To justify its 180-degree reversal from recent precedent, the Roberts Court brazenly invented its own version of reality. Five justices decided that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”¹²¹ Never mind that most Americans thought otherwise—these five men in black robes were going to decide for us what appeared corrupt and what didn’t.

“To justify its 180-degree reversal from recent precedent, the Roberts Court brazenly invented its own version of reality.”

They might just as well have declared that the sky shall not appear blue.

The decision to substitute the Court’s own judgment of what is corrupting for the people’s judgment was the same thing the Court had done in Buckley. Justice Byron White, in dissenting to Buckley, noted that corruption should have been a good enough reason to limit campaign spending and questioned the Court’s decision to swap its own definition of corruption for Congress’s definition:

Congress was plainly of the view that these expenditures also have corruptive potential, but the Court strikes down the provision, strangely enough, claiming more insight as to what may improperly influence candidates than is possessed by the majority of Congress that passed this bill and the President who signed it.¹²²

The Citizens United court explicitly overruled not only its recent ruling upholding McCain-Feingold, but also the earlier Austin v. Michigan Chamber of Commerce ruling upholding a ban on using corporate treasury funds for political campaigns. Citizens United actually harkened way back to the 1886 case Santa Clara County v. Southern Pacific Railroad. In that ruling, the chief justice at the time claimed that corporations were entitled to Fourteenth Amendment protection as persons. (In fact, that case never actually said this, but that is beyond the scope of this book.)¹²³

The Age of Super PACs

Contrary to popular belief, the Citizens United ruling did not create super PACs—the supposedly independent campaigns that collect unlimited checks on behalf of candidates—although its bizarre logic that it was impossible for independent spending to corrupt legislators did pave the way for their rise and impact.

Super PACs were born from a case known as Speech-Now.org v. FEC, which came a few months later. In this case, a lower court struck down the $5,000 limit on contributions to political action committees (PACs) that had been established by Congress in the 1974 post-Watergate law. This meant that any PAC that didn’t make direct donations to candidates no longer faced contribution limits—they became super PACs. Presidential candidates in the 2012 election began having their allies and family members set up super PACs to receive massive checks and spend them to benefit a single candidate—effectively gutting the candidate contribution limits. There was no longer even half a baby left of the post-Watergate law.

When Fairness Became Unconstitutional

The Roberts Five weren’t done.

Although the Buckley opinion held we couldn’t limit campaign spending in order to promote political equality, it did allow public financing to level the playing field. The Roberts Court would have none of it. It struck down an Arizona law that gave public funds to a candidate being out-spent by big money interests so he or she could respond.

What is interesting about this ruling is that the Court majority admitted that one candidate’s speech is diminished when other people spend money against him. The Roberts Court held that a well-funded candidate was harmed when his opponent received additional public funds, even though it didn’t change the amount the first candidate spent. So, when it suits their personal ideologies, the Roberts Five are just fine with limiting some voices in order to enhance others, just so long as those spending levels aren’t fair or equal.

“This Court,” wrote Justice Roberts, “has repeatedly rejected the argument that the government has a compelling state interest in ‘leveling the playing field.’”¹²⁴ John Roberts would have us believe that self-government requires political inequality.

Fat Cats Still Weren’t Satisfied

Spending unlimited and ungodly amounts independently to elect as many candidates as he wanted wasn’t enough for Alabama energy mogul Shaun McCutcheon. McCutcheon wanted to give checks directly to candidates so their ads could speak for him (and perhaps so the candidates would listen to him when they called on the phone asking for his money).

As rich man James Buckley had done before him, rich man Shaun McCutcheon went to the Supreme Court, which cheerfully obliged. In McCutcheon v. FEC, the Court eviscerated limits on how much one rich person could give all candidates combined. Those limits, set by Congress in 1974, had risen to $123,200 as of 2013, so they only actually limited a few hundred extremely wealthy people—Shaun McCutcheon among them.

Justice Roberts, in writing the opinion, again conflated paid speech with the free press, saying “the government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”¹²⁵

During the oral arguments, Justice Scalia quipped that since the Court had already established in Citizens United that it was not possibly corrupting for a wealthy donor to buy influence and gratitude with independent expenditures, the Court must allow Mr. McCutcheon to buy as much influence with as many politicians as he wanted.

Ironically, in cases involving elected judges raising campaign contributions or benefiting from massive independent expenditure campaigns, John Roberts has acknowledged that big money can unduly sway elected officials. Roberts thinks that it is perfectly fine for legislators to be “responsive” to big money donors but not for judges, who need to “observe the utmost fairness.”¹²⁶

Who’s in Charge?—The Proper Role for the Courts in a Republic

At this point, you may be wondering when the American people granted authority to five members of the Supreme Court to decide for us what we think is corrupting and what isn’t. After all, if the legitimacy of a republic depends on the consent of the governed, surely we must have consented to this somewhere along the way.

We did not.

Our Constitution does not grant the Supreme Court the authority to substitute its own judgment for the judgment of the people. The Constitution never even granted the Supreme Court authority to declare laws unconstitutional.

The Court simply took that power.

We let them do it without much protest, but silence does not equal consent.

The Constitution says that judicial power includes the authority to consider all cases “arising under this Constitution” as well as the laws of the United States. But the Framers of our Constitution did not agree on whether this included the power to declare a law unconstitutional. Rather, most of the Founders expected the separation of powers between the state and federal governments as well as between the three branches of government to preserve the ability of the people to act as the final arbiters of our Constitution.¹²⁷

Things began to change in the decades following adoption of the Constitution. In the famous case Marbury v. Madison of 1803, the US Supreme Court declared an act of Congress to be unconstitutional and a majority of people in the country then accepted this as a proper role for the Court.

But just because the Court issued a judgment didn’t mean that the Court was the only institution involved in interpreting our Constitution. As the former Stanford Law School dean Larry Kramer has noted, “Judges were no more authoritative on these matters than any other public official, and their judgments about the meaning of the Constitution, like those of everyone else, were still subject to oversight and ultimate resolution by the people themselves.”¹²⁸

People did not take up arms after the Supreme Court began issuing opinions as to whether laws were constitutional, so arguably we consented to this role. But later in our history, we did in fact take up arms in opposition to the Supreme Court’s pro-slavery ruling in Dred Scott. In his first inaugural address, President Abraham Lincoln noted:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. … But, if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers.¹²⁹

Some legal scholars have suggested that we take a step back and abolish judicial review of the constitutionality of our laws altogether.¹³⁰ Whether that is a bad or good idea is beyond this book’s purpose. Regardless, we need not go that far in order to reverse the logic of unlimited campaign money as free speech, as embodied in Buckley v. Valeo and subsequent rulings.

We simply need to remember that Supreme Court opinions are just that—opinions. State courts, legislators, attorneys general, and presidents should take those Supreme Court opinions into account when they exercise their own duty to uphold and defend our Constitution and our laws. But they should not abdicate the responsibility to come to their own conclusions or to consider and honor the conclusions of the American people.

Likewise, citizens should take Supreme Court opinions into account when we make ultimate decisions about how we govern ourselves, but those decisions in the end remain up to us. The next chapters will explore various ways we Americans can reclaim our sovereignty to decide for ourselves how money shall be spent on political advertising and campaigns.

What you can do: Stamp it out

Use a rubber stamp to put a message demanding an end to Citizens United on your dollar bills and literally let your money speak. Check out www.stampstampede.org for details and to order your stamp.