Whoa: Judge Posner Attacks Chief Justice Roberts Truthfulness in Campaign Finance Case

While I agree with the sentiment (as anyone who has read my writings on the Chief Justice’s views in the campaign finance and voting rights areas, and in fact I’ve made this exact same attack on the Chief Justice at SCOTUSBlog), I am a bit concerned about a sitting federal appellate judge attacking the Chief Justice like this. It diminishes the judiciary to have judges sniping at each other in public.

Does Chief Justice John Roberts show a certain casualness about the truth?

Richard A. Posner….

Which brings me to Chief Justice Roberts’ opinion in McCutcheon v. Federal Election Commission, the decision in April that, in the name of free speech, further diminished Congress’ power to limit spending on political campaigns. The opinion states that Congress may target only a specific type of corruption—quid pro quo corruption—that is, an agreement between donor and candidate that in exchange for the donation the candidate will support policies that will provide financial or other benefits to the donor. If there is no agreement, the opinion states, the donation must be allowed because “constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon­sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.”* [UPDATED]

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated chief justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. The legislator who does not honor the implicit deal is unlikely to receive similar donations in the future. By honoring the deal he is not just being “responsive” to the political “views and concerns” of constituents; he is buying their financial support with currency consisting of votes for legislation valuable to his benefactors. Isn’t this obviously a form of corruption?


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