A Roberts Court Re-Write of Rawls

What philosophical compass guides the Roberts Court's take on political equality? Forthcoming author, Timothy Kuhner takes a stab at this question in his forthcoming book, Capitalism v. Democracy.

The recent ruling in McCutcheon v. Federal Election Commission has left many observers gobsmacked and reeling. Doubling down on Citizens United, the decision does away with a decades-old law that capped individual’s total political contributions in a given election cycle and has been widely viewed as another benchmark in the Roberts Court’s use of capitalist ideology to interpret the Constitution.

Timothy Kuhner, in his forthcoming book, Capitalism v. Democracy: Money in Politics and the Free Market Constitution, takes a look at the case law and conceptual shifts in the Supreme Court that paved the way for the McCutcheon ruling. Reviewing cases including Buckley v. Valeo, Citizens United, Davis and Bennett and several others, Kuhner traces the legal pathway that has gradually shaped democratic participation into a transactional market. Such thinking has led to the current court’s line of thinking, in which regulatory measures meant to ensure political equality are construed as unconstitutional restraints on first amendment expression. In a parody of these priorities, Kuhner cites John Rawls’ canonical work, A Theory of Justice, and imagines a tongue-in-cheek Roberts Court re-write of Rawls’ ideal scenario for equal political access in a democratic society:

Let us take well-known principles in the way of a familiar place, and measure the distance between these principles and those used by the Roberts Court. . .
In his seminal work, John Rawls wrote:

The constitution must take steps to enhance the value of equal rights of participation for all members of society . . . Those similarly endowed and motivated should have roughly the same chance of attaining positions of political authority irrespective of their economic and social class . . . The liberties protected by the principle of participation lose much of their value whenever those who have greater private means are permitted to use their advantages to control the course of public debate.

Austin and McConnell served Rawls’s principles, which are also familiar from our discussion of egalitarianism; however, in Citizens United, Davis, and Bennett [and now, McCutcheon], the Court effectively made these revisions:

The Constitution must take steps to safeguard the market-calibrated value of rights of participation for all members of society including corporations . . . Those similarly endowed with the strengths of wealth and wealthy supporters, and similarly motivated to exploit those strengths should have roughly the same chance of attaining positions of political authority and influencing the public debate . . . The liberties protected by the principle of participation lose much of their value whenever those who have greater public means are permitted to use their advantages to control the course of public debate.

With a Supreme Court assertively emphasizing free market values seemingly over and above principles of equal representation, Kuhner argues that the only reliable way to circumvent the court’s stance on political finance is to go directly to the source with a constitutional amendment.

Kuhner asserts that the Supreme Court’s mercurial rulings on political finance emerge from the Constitution’s deference to personal ideology in matters of political funding. This constitutional silence has in turn created a vacuum for contradictory judicial interpretations. The most recent iteration of judicial opinion, spearheaded by the Roberts Court, is widely perceived as a threat to the integrity of the American democratic system, leading Kuhner to conclude that “the underlying questions—democracy or plutocracy, capitalism or crony capitalism—are for the people and their representatives to decide, not the Supreme Court.”

Suggested links on the McCutcheon case: