“[G]overnment regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford,” Roberts writes. “They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”
Here is the airless loop of right-wing campaign-finance ideology: Contributions of money are just support, like volunteering to lick stamps at the campaign office; reclusive Nevada billionaires are just constituents, like the widow seeking her pension benefits; the desires of business executives are just beliefs, advanced in the way the Founding Fathers wanted—by writing big checks. Under this rationale, it is hard to see why direct-contribution limits should be allowed, and we may assume that cases soon to be brought will give the majority the chance to eviscerate those limits.
I have sometimes criticized Justice Stephen Breyer’s role in the Court’s moderate-liberal minority, but Wednesday, in his dissent from the bench, Breyer was direct and eloquent. “Today’s decision substitutes judges’ understandings of how the political process works for the understanding of Congress, fails to recognize the difference between influence resting upon public opinion and influence bought by money alone, overturns key precedent, creates serious loopholes in the law, and undermines, perhaps devastates, what remains of campaign finance reform,” he said in the courtroom.
In his written dissent, Breyer (writing for himself and Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) lays out detailed scenarios by which rich donors can use Wednesday’s decision to funnel money covertly to favored candidates. The plurality decision had ridiculed that idea—but Breyer noted that the case had come to the Court on a preliminary motion, without any evidence on the issue either way. “Why,” he asked, “does the Court then not remand this case, for an evidentiary hearing, of a kind that in virtually every other case, has produced a factual record that has helped the Court reach its constitutional decision?”
Roberts’s plurality opinion had defended money-fueled campaigning as a part of the unpleasant but necessary noise of democracy. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” the chief justice wrote. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”
Breyer, by contrast, takes a somewhat broader view of the role of ordinary citizens in a democracy: “[C]ampaign finance laws recognize that the First Amendment, which seeks to maintain a marketplace of political ideas and a ‘chain of communication between the people,’ and their representatives, cannot serve its purpose unless the public opinion it protects is able to influence government opinion. Campaign finance laws recognize that large money contributions can break that chain. When money calls the tune, those ideas, representing the voices of the people, will not be heard.”