We saw a mild advancement Monday in the Republican movement declaring money to be speech and that the rich have a constitutional right to be our politically mouthiest.
The six Republican-nominated justices agreed Monday with Republican U.S. Sen. Ted Cruz of Texas. They held that he ought to be able to make a personal loan to his campaign of any amount he can afford, then, after he wins, let people contribute to his already victorious campaign, essentially to put money back into his personal account to make him whole.
That way, you see, he could begin to serve the people without having to worry about any loss to his personal finances.
The three Democratic nominees dissented. They said that anteing up to the personal account of a politician already elected to federal office carried a certain odor. That was the point of the 2002 law that Cruz got the Republican court to overturn. It was to prevent corruption or even the public appearance of it.
But the law actually permitted $250,000 worth of corruption. A candidate who lent his campaign money and then won his race could, under the law, collect maximum allowable contributions post-election from enough people to pay himself back up to $250,000, but no more than that.
Presumably, by the 2002 law, that $250,001st dollar would start to look bad.
By the 2022 Republican U.S. Supreme Court, all money looks good and free when spent to influence government.
The fact is that the vast majority of federal candidates' loans to their campaigns come in under a quarter-million dollars. So, Cruz was standing up for the wealthier candidates and the access-seekers anteing up to them after they've won. It was worth $10,000 to him.
Yes, this central case was about a mere $10,000.
In 2018, Cruz lent his re-election campaign $260,000 knowing that he would get all but $10,000 of it back in donations after winning. He knew he could use the eaten $10,000 to challenge the law in hopes of opening the flood gates going forward. And that's what he got.
Chief Justice John Roberts, recently appearing centrist and compromising, veered back to standard conservative Republicanism here. He joined the other Republican nominees and wrote the opinion that (1) the court has already determined that money spent on political candidates is free speech, and (2) a candidate's own money is as much speech as anyone else's, and (3) there's no evidence that contributions coming in after a candidate wins carry any more quid-pro-quo corruption than contributions made during the campaign, and (4) there's no rational basis for saying post-victory donations up to $250,000 are pristine but those coming in above that amount aren't.
Justice Elena Kagan, writing for the three liberal dissenters, said that campaign contributions are made to help a candidate win, but that contributions coming after he wins are made for no such thing--since he already has won. They amount, she wrote, to sending money directly to a sitting member of Congress for his personal financial health and use, and thus reek.
Roberts and the Republican jurists are right in part and Kagan and the Democrats are right in part.
Roberts' writings are sound in seeing no difference in the corruptive effect between the 250,000th and 250,001st dollar. Either way, the sum compromises individual contributions capped at $2,900.
Kagan is right in saying the very practice stinks.
Roberts is wrong to emphasize that there is no evidence of corruption. When the law permits corruption--a post-election conveyance of money to the personal account of an officeholder--then you can't call it corruption legally. You might call it a law that should have been written at zero in the first place, or, failing that, at least not repealed.
Kagan is wrong to argue passionately against even the appearance of corruption in defense of a statute that permits corruption to a maximum amount.
A man who makes a campaign contribution doesn't get the donation back, at least in hard currency. And a candidate who essentially makes a campaign contribution to himself ought not to get that donation back either--period, not merely after larding himself with a quarter-million dollars.
Still, the greater lamentation in all this is the conservative-inflicted modern American case law that money is speech, although it has always been said that money talks, which is the greater point.
John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.