Supreme Court majority and minority manage to miss the point in campaign finance decision

To hear the bleating partisans tell it, the most recent Supreme Court decision on campaign finance struck the greatest blow for the First Amendment since Madison wrote it or sent America into the hands of oligarchs more inimical to democracy than George III ever was.

The truth, as ever, resides nowhere near these poles, neatly echoed by the majority and minority court factions that declared they wanted to protect the benighted American populace from corruption. Beyond the silly sophistry and slippery slope of the language in the McCutcheon decision lies the ineluctable fact that it will not change elections very much but accomplish only what almost every congressional or judicial incursion into campaign finance has done: Move money around from one place (parties or outside groups or candidates) to another.

And McCutcheon does not address the single greatest problem with how elections, federal and otherwise, are conducted, which is to allow so much money to go undisclosed for so long, sometimes indefinitely. The best solution, I came to believe long ago, is to remove any caps because they have become meaningless and mandate real-time disclosure on the Internet – or a reasonable facsimile thereof.

That idea actually floated for a time in Carson City, of all places, last session, before being punctured by those who benefit the most from the current system.  Indeed, the only impediment to Americans being able to almost instantly see which senators or congressmen – or governors or state lawmakers or local officials – are receiving large contributions to influence their behavior are those officials who like the status quo just fine.

That includes some of those now yelping the loudest about the tragedy of McCutcheon perverting democracy, seeming to forget that by drawing impregnable districts, stifling ballot access to third parties and brandishing many other incumbent-protection advantages including the invisible hammer of legislative retribution that they have done much more to turn democracy into a plutocracy.

Must I unearth those statistics about how many of the Gang of 535 are millionaires? Or how many congressmen get re-elected every other year?

We expect – or should expect – erudition from the land’s highest court. But as I read McCutcheon, I found myself chuckling at the overwrought sentiments and ivory towerisms. Maybe if any of these justices lived in the real world, they would realize that what they wrote would make anyone who knows anything about politics guffaw at the naivete cum cluelessness.

Or, perhaps, tendentiousness, if you take the narrowly partisan and puerile view that the Roberts majority wants to help Republicans and the others long to protect the Democrats from the majority’s depredations.

This issue, like so many in politics, is oversimplified and distorted by partisans, who should be ignored. Alas, so should the justices. Here’s why:

The notion encased in the Roberts majority opinion that there is no general influence by large amounts of money and that they are helping to inhibit corruption by preventing quid pro quos is, again, at odds with, you know, the real world. From the decision:

With the significant First Amendment costs for individual citizens in mind, we turn to the governmental interests asserted in this case. This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption….The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights. In addition, "[i]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it."

The line is much less blurry, though, when gargantuan amounts of money are flowing into the system, which only increased under Citizens UnitedBut that decision, too, was misunderstood and had such important free speech elements that the ACLU, that great conservative bastion, supported it.

Later in McCutcheon, Roberts really goes off the rails in his imaginary world:

This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption. The Government contends that the aggregate limits also serve that objective, by preventing circumvention of the base limits. We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment.

Consider the bizarre logic here: We must restrict individuals to $5,200 per candidate because that fights corruption by keeping the amount so small there cannot be a quid pro quo. But by allowing rich folks to spread influencing, around, spend millions more, there is no direct quid pro quo, so that’s kosher. Really?

There is also the nonsense notion flowing through the decision that when the wealthy give a fortune to SuperPAcs or party committees that there is no wink and a nod that some of it will be earmarked to help or hurt candidates of the donor’s choice. That is the real world, not the hypothetical world The Robed Ones live in.

On the other hand, the dissenters seem a tad like Chicken Littles when they retort:

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. Taken together with (Citizens United), 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.

Oh, please.

The post-Watergate reforms were an overreaction just as that paragraph is an overreaction.  In the same way that ethics laws simply create a guidebook for the unethical, so, too, do campaign finance laws provide a blueprint for loopholes. It will always be thus, and those who say there are no constitutional problems with limiting people’s ability to contribute, they are blinded by either partisanship or ignorance.

Rather than wail about Sheldon Adelson being able to bring panting presidential hopefuls to his house or the ability of unions to bend local and federal leaders to their will, let there be light instead of heat. Those phenomena happened before McCutcheon and would have happened if there was no McCutcheon.

The most cogent part of the decision also hints at the only – literally, only – solution to stop the courts and elected officials from trying to fix the unfixable:

Finally, disclosure of contributions minimizes the potential for abuse of the campaign finance system. Disclosure requirements are in part "justified based on a governmental interest in 'provid[ing] the electorate with information' about the sources of election-related spending." (From Citizens United) They may also "deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.”  Disclosure requirements burden speech, but-unlike the aggregate limits-they do not impose a ceiling on speech. For that reason, disclosure often represents a less restrictive alternative to flat bans on certain types or quantities of speech.

In a clash of imperatives, between forcing disclosure and allowing anonymity, this is no contest. A fully informed electorate trumps any other concern, which is why removing all caps (the base caps cannot be long for this world, right?) and mandating immediate disclosure on the web are the wisest answer.

It may even – and I have posited this heretical thought before – actually not just deter corruption but reduce the money in politics because neither donor nor receiver will want to be exposed for what surely will be seen as – listen closely, Justice Roberts -- a quid pro quo.

There’s only one way to find out.