How The Opinions Of Two Supreme Court Justices Paved The Way For The Musk Era
This op-ed is adapted from a piece that first appeared in Courier Newsroom.
How The Opinions Of Two Supreme Court Justices Paved the Way for the Musk Era
By: Fred Wertheimer, President, Democracy 21, and Don Simon, Counsel, Democracy 21
It took Elon Musk, the world’s richest person, to illustrate to Americans just how dangerous our corrupt campaign finance system can be. This system allowed Musk to contribute more than $250 million to help elect Donald Trump in 2024, making him Trump’s single biggest financial supporter.
In turn, President Trump made Musk his governing partner.
One of the authors of this piece, Fred Wertheimer, has been fighting campaign finance abuses since the Watergate scandals. He led the outside lobbying effort for the sweeping Federal Election Campaign Act of 1974 and served as counsel on the landmark Buckley v. Valeo case in 1976 that upheld the constitutionality of key campaign finance laws. For more than five decades, he has worked for the passage of reforms to protect our elections from the corrupting influence of big money.
But Watergate – which led to historic reforms – was child’s play compared with the corrupting practices coming today from the grip that multimillionaires and billionaires, Super PACs, and dark money have on our elections.
And the Supreme Court is to blame – specifically two opinions, one written by former Justice Anthony Kennedy (Citizens United v. Federal Election Commission (2010)), and the other by Chief Justice John Roberts (McCutcheon v. Federal Election Commission (2014)).
The two decisions set the stage for eviscerating the campaign contribution limits enacted in response to the Watergate scandals, opening the big money floodgates, and unleashing unlimited Super PAC and dark money contributions.
The United States once had strong campaign finance laws. Congress enacted them in response to the Watergate campaign finance scandals in the early 1970s. In 1976, the Supreme Court in Buckley defined “corruption” and held that measures to deter this corruption and the appearance of corruption were the only grounds for upholding campaign finance restrictions, such as contribution limits. Essentially, one needed to prove corruption in order to justify the campaign contribution limits.
The Court found that corruption included “quid pro quo arrangements,” but went well beyond that, defining “corruption” to also include “seeking to exert improper influence,” “desiring to buy influence,” seeking “to obtain improper influence” over candidates and officeholders, and “the avoidance of the appearance of improper influence.” Buckley also found that contribution limits were necessary to address the corruption that is inherent in a system of unlimited contributions.
This definition was applied for over 30 years in cases that followed, including Nixon v. Shrink Missouri, Federal Election Commission v. Colorado Republican Federal Campaign Committee, and McConnell v. Federal Election Commission. In these cases, like in Buckley, the definition of corruption was never limited to quid pro quo arrangements.
Then, beginning in 2010, Roberts and Kennedy changed all this. They performed this magic trick through flagrant misinterpretation of the law.
In their Citizens United and McCutcheon opinions, Roberts and Kennedy misrepresented Buckley’s definition of “corruption,” falsely claiming that it applied only to “quid pro quo arrangements.”
The Justices then used their misrepresentation to rewrite the Court’s definition of “corruption” in a way that legalized various forms of “influence buying.” They did this while falsely claiming that they were using Buckley’s interpretation of “corruption.” Roberts and Kennedy claimed they were only carrying forward the definition of corruption that had been set forth in Buckley when, in fact, they dramatically perverted it.
As a result of these decisions, Citizens United and McCutcheon set the stage for flooding federal elections with unlimited contributions and secret money, creating the wildly corrupt system we have today.
If not for the Kennedy and Roberts opinions, Musk would have been prohibited from giving almost all of the more than $250 million he invested in electing Trump in 2024, and we as a nation almost certainly would be spared from his heartless ransacking of our government.
Overall, Super PACs spent more than $4.5 billion in unlimited contributions in the 2024 election cycle. Almost all of this, too, would have been prohibited if not for the two decisions.
By misrepresenting Buckley’s definition of corruption, Justice Kennedy and Chief Justice Roberts in their Citizens United and McCutcheon opinions did a grave disservice to the Supreme Court’s integrity, to honest jurisprudence, and to the rule of law.
Kennedy and Roberts played a key role in placing our country where it is today: mired in a historically corrupt campaign finance system and in the death grip of Elon Musk and the super-rich.
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Fred Wertheimer is the President of Democracy 21, and Don Simon is counsel to Democracy 21. Democracy 21 is a nonprofit, nonpartisan organization that works to protect and strengthen our democracy.
