The McCutcheon Effect

The real risk lies in the conservative justices' seemingly deliberate obtuseness to the real world of campaign contributions -- in particular, their cramped understanding of what constitutes the kind of corruption or risk thereof to justify campaign finance legislation.

The problem started with Citizens United, when Justice Anthony Kennedy looked at independent campaign spending and couldn't imagine how it might corrupt candidates.

"In fact, there is only scant evidence that independent expenditures even ingratiate," he scoffed. "Ingratiation and access, in any event, are not corruption." The test for whether such spending corrupts, Kennedy said, is much stricter: whether it constitutes a quid pro quo of largesse for political favors.

Justice Kennedy, you might want to read about GOP politicians trooping to Las Vegas to woo mega-donor Sheldon Adelson.

In McCutcheon, Roberts oversaw the metastasis of Kennedy's unrealistic test from expenditures to contributions. A politician receiving one humongous check, with proceeds to be distributed among candidates and party committees, will naturally be "grateful" to the donor, but will not feel "obligated" in a way that constitutes corruption, he asserted, happily substituting his judgment about what is corrupting for that of members of Congress who might actually know.

Mr. Chief Justice, you might want to talk to lawmakers scrambling to collect enough cash to secure committee chairmanships or other plum assignments.

Where does this see-no-corruption approach end? In 2003, upholding the ban on soft money contributions to political parties, the court noted that such unlimited checks posed the threat of both "actual corruption" and "eroding ... public confidence in the electoral process." It's hard to see the soft money ban surviving the new quid pro quo standard. Indeed, it's hard to see any limits on party donations surviving: How exactly do parties provide a quo for the quid? Similarly imperiled: the ban on direct giving by corporations and labor unions.

The conservative bulldozer hums, awaiting the next opportunity for dismantling.

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Ruth Marcus' email address is ruthmarcus@washpost.com.