Investigations

Arm Yourself! Read Breyer's Dissent in McCutcheon v. FEC

Hopefully, we can push back against the wreckage wrought by Roberts and Co.

Photo Credit: Wikimedia Commons

Breyer writes in clear English. His arguments (signed with Ginsburg, Sotomayor and Kagan) are as informed and articulate a defense of campaign finance laws as you will find. It's better and more efficient to read him, than to read about him, imho. For the non-lawyers/scholars, just skip over the legal references, detailed case arcana, and anything else that isn't obvious -- you'll still get the basic ideas.

If we arm ourselves verbally, we can help push back against the madness wrought by the Roberts/Scalia/Thomas/Alito/Kennedy court. These 5-4 decisions may well be overturned in the future -- as has happened in the past with bigger majorities. Teaching ourselves, our children, and our friends and foes alike, will help bring that day closer.  

The following are selections from Breyer's dissent, which begins on page 52 (of 94) in the Supreme Court's PDF file (after Roberts' majority opinion). Breyer writes:

[Roberts, Scalia, Alito, Kennedy & Thomas's] conclusion:
* rests upon its own, not a record-based, view of the facts.
* Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake.
* It understates the importance of protecting the political integrity of our governmental institutions.
* It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. ...

Today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Breyer continues:
What has this to do with corruption? It has everything to do with corruption.Corruption breaks the constitutionally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many. That is also why the Court has used the phrase“subversion of the political process” to describe circumstances in which “elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.”

The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.

The upshot is that the interests the Court has long described as preventing “corruption” or the “appearance of corruption” are more than ordinary factors to be weighed against the constitutional right to political speech. Rather, they are interests rooted in the First Amendment itself. They are rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given that end, we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plurality’s limited definition of “corruption” suggests.

Since the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond those the plurality describes, the plurality’s notion of corruption is flatly inconsistent with the basic constitutional rationale I have just described.

There [is] an indisputable link between generous political donations and opportunity after opportunity to make one's case directly to a Member of Congress.

"Plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judgment, and the appearance of such influence.’ "

We specifically rejected efforts to define “corruption” in ways similar to those the plurality today accepts. We added: “Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that office­holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.”

Breyer marches where mainstream media fears to tread, even when they report on this case: it has everything to do with corruption!

(There are other important reasons in the dissent, as well -- I just pulled out a few clear selections.)

Keeping informed is one thing we can do to push back. They can't take that way from us -- so long as we put in the effort to read.

Did anyone else notice that the GOP's mud-ball, the Drudge Report, had absolutely nothing to say about the McCutcheon decision? Not a single link about McCutcheon v FEC, ever. That's telling, as usually Drudge will crow about any GOP victory. They want to keep it quiet, and to make us cynical. Don't let them. Read! ಠ_ಠ

[h/t to Brian82 and i saw an old tree today for leading me to this. Thank you!]