John Roberts: the federal government is not authorized to address problems that don’t exist, like “racism” or “corruption”

Jay Willis notes that Roberts’s opinion in FEC v. Tailgunner Ted neatly replicates his famously idiotic reasoning from Shelby County:

Previously, the Court had left open the possibility that laws designed to combat quid pro quo corruption—smoking-gun exchanges of money for favors—might pass constitutional muster. But as Ted Cruz for Senate makes clear, Roberts and company are no longer pretending to care about cartoon-villain wrongdoing like this. As Kagan pointedly notes, the potential for quid pro quo corruption here is “self-evident” to everyone except, apparently, to six of America’s fanciest lawyers who are not accountable to anyone.

Roberts goes on to assert that no well-documented evidence of quid pro quo corruption exists that would justify the law’s continued enforcement. This is, at best, dubious. In dissent, Kagan notes several elections that were not subject to this rule in which savvy post-election donations—surprise!—paid off handsomely for people who invested in their new elected official’s future decisionmaking processes.

Setting aside that factual dispute, though, Roberts’s analysis has the Court’s role backwards. A functioning legal system would protect the public’s interest in the integrity of the democratic process. Roberts’s position is that there is no need for laws that prevent illegal corruption without proof that illegal corruption has already compromised the democratic process.

This basic absence-of-evidence-as-evidence-of-absence mistake also echoes Robert’s 2013 assertion in Shelby County v. Holder that legal protections for Black voters in states in the Jim Crow South were not necessary because more Black people than ever were voting in states in the Jim Crow South. Justice Ruth Bader Ginsburg’s retort to him—that gutting federal laws that block state-level voter suppression efforts “is like throwing away your umbrella in a rainstorm because you are not getting wet”—is as apt today as it was nearly a decade ago.

The upshot of Ted Cruz for Senate is that winning candidates can wind up their campaigns’ outstanding financial obligations subject to vanishingly little oversight. Wealthy candidates who are able to finance their own campaigns will have an easier time buying elections, since they can be more confident in their ability to recover as much as they’re willing to lend. 

Roberts is making two related moves here. The first is his innovative claim that if legislation is working than this proves that it is unnecessary. The second is the more traditional conservative move of defining “racism” and “corruption” so narrowly that they can virtually never exist by definition. Combined, they’re a powerful all-purpose veto. The originalists!