Report: How Chief Justice Roberts & Former Justice Kennedy Knowingly Misrepresented Court Precedent To Justify Increasing Legalized Corruption
Democracy 21 Education Fund Report
How Supreme Court Chief Justice Roberts and Former Justice Kennedy Knowingly Misrepresented Court Precedent to Justify Increasing Legalized Corruption
by: Fred Wertheimer and Don Simon
– July 2025 –
For decades, the United States had strong campaign finance laws aimed at deterring corruption and safeguarding the integrity of our political system.
According to the Supreme Court, these laws prevented both “corruption” and “the appearance of corruption,” and this included buying influence over candidates and officeholders.
For 34 years, starting with Buckley v. Valeo (1976), the laws sought to deter this “corruption” until former Justice Anthony Kennedy and Chief Justice John Roberts wrote disingenuous opinions for the Court in Citizens United v. Federal Election Commission (2010) and McCutcheon v. Federal Election Commission (2014), respectively.
This is a story about how Roberts and Kennedy, in these two opinions, falsely described precedent to greatly narrow the Court’s definition of “corruption” while claiming they were not changing it, and thereby greatly increased the opportunities for legalized corruption.
This is also a story about how the Supreme Court majority, led by Kennedy and Roberts, eviscerated the campaign finance laws which had been enacted to prevent the corruption and appearance of corruption of our federal officeholders. (The Supreme Court has also crippled the bribery laws that apply to public officials, but that’s a story for another day.)
The erosion of anti-corruption laws by our nation’s highest court is a dangerous development for our democracy.
In the 2024 elections, the Super Rich in our country contributed billions of dollars and obtained undue influence over the presidential and congressional elections and coming government policies.
For example, Elon Musk, the richest person in the world, took advantage of a campaign finance system corrupted by Supreme Court decisions in Citizens United and McCutcheon to provide more than $250 million to help elect President Donald Trump in 2024.
In return, Trump provided Musk with virtual carte blanche, unaccountable power to ransack and deconstruct the federal government as Musk saw fit.
(The top 25 billionaires and millionaires making contributions in the 2024 election cycle, according to Open Secrets, included 17 Republican donors whose donations totaled more than $1.3 billion and eight Democratic donors whose donations totaled more than $257 million – illustrating how an oligarchy is created.)
The institutionalization of corruption poses a grave threat to our democracy, erodes public trust, and undermines the credibility of our government.
Chief Justice Roberts and former Justice Kennedy, in their McCutcheon and Citizens United decisions, led the way to two fundamental changes in our democracy.
First, their opinions changed the Supreme Court definition of “corruption” to greatly limit its scope, while falsely asserting that they were using the same definition that the Court had used since the Buckley decision in 1976. In fact, they changed the definition of “corruption,” and, in so doing, legalized the buying and selling of influence.
Second, the opinions of Roberts and Kennedy in McCutcheon and Citizens United opened the door to the explosion of influence-seeking, unlimited contributions to Super PACs and “dark money” nonprofits. These groups have since spent, and rich donors have given, billions of dollars to influence federal elections and federal officeholders.
More than $4.5 billion in unlimited contributions was spent in the 2024 election cycle, according to Open Secrets.
This explosive growth of spending by Super PACs and dark money nonprofits led to the evisceration of the candidate contribution limits established in 1974 and upheld in Buckley as necessary to prevent corruption and the appearance of corruption.
The Kennedy and Roberts opinions in practice mean that a Super Rich donor can now give the maximum contribution to a federal candidate – $3,500 per election – and can also give $1 million or more to a Super PAC that the donor knows will spend that money only to support that same candidate.
There are currently 291 such single-candidate Super PACs – PACs that spend unlimited contributions to support only one candidate. Thus, in practical terms, the candidate knows that the wealthy donor is making a huge contribution to support him or her.
The biggest Super PAC donors during the 2023-2024 election cycle, according to Open Secrets, were:
- Elon Musk, $290 million;
- Timothy Mellon, $197 million;
- Miriam Adelson, $144 million;
- Richard and Elizabeth Uihlein, $139 million;
- Kenneth Griffin; $107 million; and
- Jeffrey and Janine Yass, $100 million.
Unlike with Super PACs, the public does not know who the biggest donors are to nonprofit groups because those donations are not disclosed. Super PAC donors, by contrast, are publicly reported to the Federal Election Commission.
The Kennedy and Roberts opinions turned millionaires and billionaires into a dominant force in American politics. They are now able to use their enormous wealth for legalized corrupt practices.
This report provides an examination of how Buckley defined corruption and how that same definition was used by the Court in several cases that followed – including Nixon v. Shrink Missouri (2000), Federal Election Commission v. Colorado Republican (2001), and McConnell v. Federal Election Commission (2003).
This report also examines how Citizens United and McCutcheon changed and restricted the definition of corruption that had been established in Buckley and its progeny – while falsely claiming they were simply applying the Buckley definition.
Buckley v. Valeo, 424 U.S. 1 (1976)
Buckley v. Valeo (1976) was a seminal decision that addressed the constitutionality of anti-corruption campaign finance laws enacted in 1974 in the wake of the Watergate scandals. In its decision, the Court held that deterring corruption and the appearance of corruption are the only constitutional grounds for upholding campaign finance restrictions, such as contribution limits.
Thus, the definition of “corruption” provided in the Buckley opinion was central to whether contribution limits and other campaign finance restrictions could survive First Amendment scrutiny.
In upholding the contribution limits, the Court in Buckley said:
To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. […] Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.
424 U.S. 1 at 27.
But the Court never said its definition of “corruption” was limited to actual or apparent “quid pro quo arrangements.” In fact, the Court defined “corruption” in the Buckley opinion as much broader than the quid pro quo bribery standard, stating:
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with “proven and suspected quid pro quo arrangements.” But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.
Id. at 28-29, (emphasis added).
Thus, the Buckley opinion made clear that “quid pro quo arrangements” were already prohibited by bribery laws and that if the “corruption” definition was limited to the bribery standard, the campaign contribution limits would have been unnecessary. But the Court found that contribution limits were necessary to deal with a broader understanding of “corruption” that is “inherent” in a system that allows unlimited campaign contributions.
The Court in Buckley also describes “corruption” as “seeking to exert improper influence,” as “desiring to buy influence,” and as seeking “to obtain improper influence” over candidates and officeholders.
These definitions of “corruption” go well beyond only “quid pro quo arrangements.”
Further, in defining “appearance of corruption,” the Court stated that:
Congress could legitimately conclude that the avoidance of the appearance of improper influence “is also critical … if confidence in the system of representative Government is not to be eroded to a disastrous extent.”
Id. at 27, quoting United States Civil Service Commission v. Letter Carriers, (emphasis added).
This “corruption” definition also goes well beyond only “quid pro quo arrangements.”
Nixon v. Shrink Missouri, 528 U.S. 377 (2000)
The Court majority in Nixon v. Shrink Missouri (2000) quoted Buckley’s reference to “actual quid pro quo arrangements,” and then pointed out that Buckley’s “corruption” definition went well beyond that language. The opinion stated about Buckley:
In speaking of “improper influence” and “opportunities for abuse” in addition to “quid pro quo arrangements,” we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.
528 U.S. at 389, (emphasis added).
The Court further stated:
These were the obvious points behind our recognition that the Congress could constitutionally address the power of money “to influence governmental action” in ways less “blatant and specific” than bribery. Buckley v. Valeo, 424 U.S., at 28, 96 S.Ct. 612.
Id., (emphasis added).
Thus, the Supreme Court explicitly stated in Shrink Missouri that its discussion in Buckley about “corruption” extended beyond only “quid pro quo arrangements,” was “not confined to bribery,” and encompassed the “broader threat” of campaign money being used to make politicians “too compliant with the wishes of large contributors.”
Referring to the “appearance of corruption” standard, the Court stated:
While neither law nor morals equate all political contributions, without more, with bribes, we spoke in Buckley of the perception of corruption “inherent in a regime of large individual financial contributions” to candidates for public office […] as a source of concern “almost equal” to quid pro quo improbity. […] Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.
Id. at 390.
Thus, in upholding campaign finance contribution limits, the Court in Shrink Missouri stated that, as it had set forth in Buckley, the perception of corruption “inherent” in large individual contributions is of concern “almost equal” to “quid pro quo improbity.”
Federal Election Commission v. Colorado Republican, 533 U.S. 440 (2001) (Colorado Republican II)
The Court in Federal Election Commission v. Colorado Republican (2001) (Colorado Republican II), also stated explicitly that deterring “corruption” extended well beyond “quid pro quo arrangements” to encompass the broader concept of “undue influence.”
In discussing the distinction between laws regulating contributions and those regulating expenditures, the Court said:
A further reason for the distinction is that limits on contributions are more clearly justified by a link to political corruption than limits on other kinds of unlimited political spending are (corruption being understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment, and the appearance of such influence.)
533 U.S. at 440-441, (emphasis added).
McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
In McConnell v. Federal Election Commission (2003), the Court relied on the “corruption” definitions stated in Buckley, Colorado Republican II, and Shrink Missouri as precedent for similarly concluding that that the definition of “corruption” extends well beyond “quid pro quo arrangements.”
The McConnell opinion stated:
Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws ‘‘deal[t] with only the most blatant and specific attempts of those with money to influence governmental action.’’
540 U.S. at 143, quoting Buckley, (emphasis added).
The opinion further stated:
Thus, ‘‘[i]n speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.’’ Shrink Missouri, 528 U.S., at 389, 120 S.Ct. 897; see also Colorado II, 533 U.S., at 441, 121 S.Ct. 2351 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to ‘‘undue influence on an officeholder’s judgment”).
Id., (emphasis added).
In rejecting the narrow definition of “corruption” urged by the McConnell plaintiffs, the Court said:
More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing ‘‘undue influence on an officeholder’s judgment, and the appearance of such influence.’’ Colorado II, supra, at 441, 121 S.Ct. 2351. Many of the ‘‘deeply disturbing examples’’ of corruption cited by this Court in Buckley, 424 U.S., at 27, 96 S.Ct. 612, to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley, 519 F.2d, at 839–840, n. 36; nn.5–6, supra. Even if that access did not secure actual influence, it certainly gave the ‘‘appearance of such influence.’’ Colorado II, supra, at 441, 121 S.Ct. 2351; see also 519 F.2d, at 838.
Id. at 150, (emphasis added).
The Court in McConnell went on to cite “examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations.” The Court made clear that “peddling access” was included in its definition.
Justice Kennedy dissented from part of the majority opinion in the case, and in doing so, he relied on a much narrower version of what constitutes “corruption.” The majority, at length, expressly rejected the Kennedy definition of “corruption.”
The majority stated:
Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice KENNEDY would limit Congress’ regulatory interest only to the prevention of the actual or apparent quid pro quo corruption ‘‘inherent in’’ contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post, at 745, 748. Regulation of any other donation or expenditure – regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence – would, according to Justice KENNEDY, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.
Justice KENNEDY’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize.
Id. at 152-153, (emphasis added).
Thus, the Court in McConnell could not have been clearer that its jurisprudence for 27 years defined “corruption” as extending well beyond only “quid pro quo arrangements.”
Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010)
In Citizens United v. Federal Election Commission (2010), a majority opinion written by Justice Kennedy and joined by Chief Justice Roberts, the Court struck down a federal ban on corporate campaign expenditures, ending a policy that had existed for nearly 80 years. In doing so, the Court overruled its own decision two decades earlier in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had upheld the corporate spending ban.
The Kennedy opinion in Citizens United explicitly states that the anti-corruption interest identified in Buckley was “limited only to quid pro quo corruption.” This was flatly false.
The Citizens United opinion completely ignored the Court’s decisions in Colorado Republican II, Shrink Missouri, and McConnell that, like Buckley, made clear that the definition of “corruption” went well beyond “quid pro quo arrangements.”
Instead, Kennedy in Citizens United cited his dissenting opinion in McConnell as precedent, failing to even note that it was a dissent whose reasoning had been expressly rejected by the majority opinion. In Citizens United, Kennedy repeatedly cited his McConnell opinion not as a “dissent” but instead as “Opinion of Kennedy, J.”:
When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. See McConnell, supra, at 296–298, 124 S.Ct. 619 (opinion of KENNEDY, J.) (citing Buckley, supra, at 26–28, 30, 46–48, 96 S.Ct. 612); NCPAC, 470 U.S., at 497, 105 S.Ct. 1459 (‘‘The hallmark of corruption is the financial quid pro quo: dollars for political favors’’); id. at 498, 105 S.Ct. 1459. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt:
“Favoritism and influence are not … avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.’’ McConnell, 540 U.S., at 297, 124 S.Ct. 619 (opinion of KENNEDY, J.).
Reliance on a ‘‘generic favoritism or influence theory … is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.’’ Id., at 296, 124 S.Ct. 619.
130 S.Ct. at 910, (emphasis added).
Kennedy’s Citizens United opinion repeatedly cites as precedent his dissent in McConnell, when his dissent in McConnell was not precedent for anything.
McCutcheon v. Federal Election Commission, 134 S.Ct. 1434 (2014)
In a majority opinion by Chief Justice Roberts in McCutcheon v. Federal Election Commission (2014), the Court declared unconstitutional the federal limit on the aggregate amount an individual could give to all federal candidates and political committees in an election cycle. This decision overturned a portion of the Buckley decision, which had upheld the aggregate contribution limit nearly 40 years earlier.
In his opinion, Roberts also falsely described the definition of “corruption” in Buckley. The Roberts opinion in McCutcheon, like the Kennedy opinion in Citizens United, asserted that under the Buckley decision “corruption” is restricted to “quid pro quo arrangements”:
Any regulation must instead target what we have called ‘‘quid pro quo’’ corruption or its appearance. See id., at 359, 130 S.Ct. 876. That Latin phrase captures the notion of a direct exchange of an official act for money. See McCormick v. United States, 500 U.S. 257, 266, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). ‘‘The hallmark of corruption is the financial quid pro quo: dollars for political favors.’’ Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985).
134 S.Ct. at 1441, (emphasis added).
And:
The primary purpose of FECA was to limit quid pro quo corruption and its appearance; that purpose satisfied the requirement of a ‘‘sufficiently important’’ governmental interest. 424 U.S., at 26–27, 96 S.Ct. 612.
Id., (emphasis added).
The Roberts opinion in McCutcheon, like the Citizens United opinion, falsely represents the Buckley opinion, claiming it said that the anti-corruption rationale for campaign finance laws covers “only a specific type of corruption – quid pro quo corruption”:
Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption – ‘‘quid pro quo’’ corruption. As Buckley explained, Congress may permissibly seek to rein in ‘‘large contributions [that] are given to secure a political quid pro quo from current and potential office holders.’’ 424 U.S., at 26, 96 S.Ct. 612. In addition to ‘‘actual quid pro quo arrangements,’’ Congress may permissibly limit ‘‘the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions’’ to particular candidates. Id., at 27, 96 S.Ct. 612; see also Citizens United, 558 U.S., at 359, 130 S.Ct. 876 (‘‘When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption’’).
Id. at 1450, (emphasis added).
The Roberts opinion also claims that influence-buying is not covered by the definition of “corruption,” without ever acknowledging that decades of precedent, starting with Buckley in 1976, held that influence buying was included in the Court’s definition of “corruption”:
Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘‘influence over or access to’’ elected officials or political parties. Id., at 359, 130 S.Ct. 876; see McConnell v. Federal Election Comm’n, 540 U.S. 93, 297, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (KENNEDY, J., concurring in judgment in part and dissenting in part). And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. See Citizens United, 558 U.S., at 360, 130 S.Ct. 876.
Id. at 1450-1451, (emphasis added).
Roberts uses selective quotes from Buckley that refer to quid pro quo corruption. But he entirely ignores multiple other passages in Buckley which made clear the Court adopted a much broader reading of “corruption” that went well beyond “quid pro quo arrangements”:
It is fair to say, as Justice Stevens has, ‘‘that we have not always spoken about corruption in a clear or consistent voice.’’ Id., at 447, 130 S.Ct. 876 (opinion concurring in part and dissenting in part). The definition of corruption that we apply today, however, has firm roots in Buckley itself. The Court in that case upheld base contribution limits because they targeted ‘‘the danger of actual quid pro quo arrangements and ‘‘the impact of the appearance of corruption stemming from public awareness’’ of such a system of unchecked direct contributions. 4 24 U.S., at 27, 96 S.Ct. 612. Buckley simultaneously rejected limits on spending that was less likely to ‘‘be given as a quid pro quo for improper commitments from the candidate.’’ Id., at 47, 96 S.Ct. 612.
Id. at 1451, (emphasis added).
Roberts ends by again falsely stating that in Buckley only “a specific kind of corruption – quid pro quo corruption” can serve as a compelling interest to justify campaign finance restrictions:
The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption – quid pro quo corruption – in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley.
Id. at 1462, (emphasis added).
Conclusion
In their opinions in McCutcheon and Citizens United, Chief Justice John Roberts and former Justice Anthony Kennedy grossly misrepresented the Buckley definition of “corruption” and by so doing have done a grave disservice to the integrity of the Supreme Court and to honest jurisprudence.
The enormous damage done by the Supreme Court in its Citizens United and McCutcheon decisions has undermined our democracy and legalized corruption. Roberts and Kennedy, in issuing these grossly misleading opinions, have failed the country, the courts, and the rule of law.
Fred Wertheimer is the President of Democracy 21 and Democracy 21 Education Fund.
Don Simon is Counsel to Democracy 21 and Democracy 21 Education Fund and is Of Counsel to Sonosky, Chambers, Sachse, Endreson & Perry LLP
