Roberts’s critique is compelling when applied to judges, and even more powerful when applied to Congress. Nowadays, fundraising pressures on its members are so intense that they can’t afford the time to do what they’re paid for—serving responsibly on committees, making informed judgments on big issues, and building the trust required for creative cross-party solutions. Their personal involvement diverts them from the central tasks of political representation.
Senators and representatives can’t even spend enough time to meet constituents in their offices, since it’s illegal for them to solicit funds on government property. Instead, they are obliged to trudge a few hundred yards from the Capitol to enter telemarketing sites provided by their political parties. Jammed into small cubicles, they spend up to five hours a day begging for cash from big donors. As former Representative Dennis Cardoza described the scene, the place “smell[s] like a gymnasium locker room after a few hours. It's awful, it's like a sweatshop.” That’s why he refused to run again for Congress last year.
Members don’t enter these sweatshops voluntarily. Their party leaders tie top committee jobs to specific fund-raising quotas. Given the stakes, it’s only rational for members of Congress to spend time attending fundraisers rather than study up on the issues, or engage in the collaborative efforts that would make them competent legislators.
The chief justice took pains to distinguish between judges and other elected officials. His recent decision cautions that, in contrast to judicial candidates, “politicians are expected to be appropriately responsive to … their supporters,” But Congress would be on firm constitutional ground in condemning current Washington pathologies as “inappropriate” when they systematically undermine the governmental “integrity” that Roberts makes central to his opinion.
In taking Roberts seriously, Congress would be redeeming the dire prophecies of Justice Scalia in his ringing dissent. Scalia denounces the Court’s “twistification” of an “ill-defined” notion of “integrity” so that it “starts to sound like saintliness.” But in applying Roberts’s principles to its own practices, Congress would be far more modest. It would not be reaching for the skies, but merely making it possible for members to discharge their mundane duties as serious legislators.
If a future opinion upheld a Congressional ban, its reasoning would involve the straightforward application, not a radical extension, of Roberts’s basic rationale. Scalia’s dire predictions have often been vindicated by subsequent majority decisions—recall his passionate condemnations of the Court’s rulings on gender equality. A tightly crafted law might compel Roberts to recognize the extension of his logic to other elections, just as Scalia plainly fears.