Citizens United v Federal Election Commission (Supreme Court Decision)

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    A Potentially Huge Supreme Court Case Has a Hidden Conservative Backer

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    The case, to be argued by lawyers linked to the petrochemicals billionaire Charles Koch, could sharply curtail the government’s regulatory authority.The Supreme Court is set to hear arguments on Wednesday that, on paper, are about a group of commercial fishermen who oppose a government fee that they consider unreasonable. But the lawyers who have helped to propel their case to the nation’s highest court have a far more powerful backer: the petrochemicals billionaire Charles Koch.The case is one of the most consequential to come before the justices in years. A victory for the fishermen would do far more than push aside the monitoring fee, part of a system meant to prevent overfishing, that they objected to. It would very likely sharply limit the power of many federal agencies to regulate not only fisheries and the environment, but also health care, finance, telecommunications and other activities, legal experts say.“It might all sound very innocuous,” said Jody Freeman, founder and director of the Harvard Law School Environmental and Energy Law Program and a former Obama White House official. “But it’s connected to a much larger agenda, which is essentially to disable and dismantle federal regulation.”The lawyers who represent the New Jersey-based fishermen, are working pro bono and belong to a public-interest law firm, Cause of Action, that discloses no donors and reports having no employees. However, court records show that the lawyers work for Americans for Prosperity, a group funded by Mr. Koch, the chairman of Koch Industries and a champion of anti-regulatory causes.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      Sandra Day O’Connor’s Legacy Was Undermined by Court’s Rightward Shift

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      Since her retirement in 2006, the court has dismantled her key rulings on abortion, affirmative action and campaign finance.Justice Sandra Day O’Connor, who died Friday at 93, was the sort of figure once familiar in American political and judicial life: a moderate Republican ready to look for compromise and common ground.That led her to vote to uphold abortion rights, affirmative action and campaign finance regulations. Since she retired in 2006, replaced by the far more conservative Justice Samuel A. Alito Jr., the Supreme Court has dismantled large parts of her legacy.That is nowhere more apparent than in abortion rights.Justice O’Connor joined the controlling opinion in Planned Parenthood v. Casey, the 1992 decision that, to the surprise of many, reaffirmed the core of the constitutional right to abortion established in 1973 in Roe v. Wade.To overrule Roe “under fire in the absence of the most compelling reason to re-examine a watershed decision,” she wrote in a joint opinion with Justices Anthony M. Kennedy and David H. Souter, “would subvert the court’s legitimacy beyond any serious question.”Last year, the court did overrule Roe, casting aside Justice O’Connor’s concern for precedent and the court’s public standing. In his majority opinion in Dobbs v. Jackson Women’s Health Organization, Justice Alito wrote that Roe and Casey had “enflamed debate and deepened division.”Justice O’Connor also wrote the majority opinion in Grutter v. Bollinger, a 2003 decision upholding race-conscious admissions decisions at public universities, suggesting that they would not longer be needed in a quarter-century. In striking down affirmative action programs in higher education in June, the Supreme Court beat her deadline by five years.Chief Justice John G. Roberts Jr., writing for the majority, said the timetable was unrealistic and unprincipled.“The 25-year mark articulated in Grutter, however, reflected only that court’s view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses,” he wrote. “That expectation was oversold.”Justice O’Connor was also an author of a key campaign finance opinion, McConnell v. Federal Election Commission in 2003. A few years after Justice Alito replaced her, the Supreme Court, by a 5-to-4 vote in 2010, overruled a central portion of that decision in the Citizens United case.A few days later, at a law school conference, Justice O’Connor reflected on the development.“Gosh,” she said, “I step away for a couple of years and there’s no telling what’s going to happen.”President Ronald Reagan nominated Justice O’Connor in 1981, making good on his campaign trail promise to name the first female Supreme Court justice. At the time she was a judge on a state appeals court, not a typical launchpad to the Supreme Court in the modern era, when it has been dominated by former federal appeals court judges.But her origin story was a reflection of her strengths, drawing on a range of experience largely missing among the current justices. Raised and educated in the West, she served in all three branches of Arizona’s government, including as a government lawyer, majority leader of the State Senate, and a trial judge.Her background informed her decisions, which were sensitive to states’ rights and often deferred to the judgments of the other branches of the federal government. Her rulings could be pragmatic and narrow, and her critics said she engaged in split-the-difference jurisprudence.But some of her commitments were unyielding, said Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court. “As often as Justice O’Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the gender discrimination cases,” Justice Ginsburg, who died in 2020, told USA Today in 2009.What is beyond question is that she was exceptionally powerful. She held the crucial vote in many of the court’s most polarizing cases, and her vision shaped American life for her quarter century on the court. Political scientists stood in awe at the power she wielded.“On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin, Kevin M. Quinn and Lee Epstein and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.In 2018, in a letter announcing her retreat from public life as she battled dementia, Justice O’Connor called for a renewed commitment to nonpartisan values, one that would require “putting country and the common good above party and self-interest, and holding our key governmental institutions accountable.”At the time, Chief Justice Roberts, who had joined the court just months before Justice O’Connor left it, described her place in history.“She broke down barriers for women in the legal profession to the betterment of that profession and the country as a whole,” he wrote. “She serves as a role model not only for girls and women, but for all those committed to equal justice under law.”On Friday, the chief justice added: “We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.”That legacy is striking and real. But in the less than two decades since Justice O’Connor’s retirement, a central aspect of that legacy — her jurisprudence — has proved vulnerable. More

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      Small Donors Are a Big Problem

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      One of the most important developments driving political polarization over the past two decades is the growth in small-dollar contributions.Increasing the share of campaign pledges from modest donors has long been a goal of campaign-finance reformers, but it turns out that small donors hold far more ideologically extreme views than those of the average voter.In their 2022 paper, “Small Campaign Donors,” four economists — Laurent Bouton, Julia Cagé, Edgard Dewitte and Vincent Pons — document the striking increase in low-dollar ($200 or less) campaign contributions in recent years. (Very recently, in part because Donald Trump is no longer in the White House and in part because Joe Biden has not been able to raise voter enthusiasm, low-dollar contributions have declined, although they remain a crucial source of cash for candidates.)Bouton and his colleagues found that the total number of individual donors grew from 5.2 million in 2006 to 195.0 million in 2020. Over the same period, the average size of contributions fell from $292.10 to $59.70.In an email, Richard Pildes, a law professor at N.Y.U. and an expert in campaign finance, wrote: “Individual donors and spenders are among the most ideological sources of money (and are far more ideological than the average citizen). That’s particularly true of small donors.”As a case in point, Pildes noted that in the 2022 elections, House Republicans who backed Trump and voted to reject the Electoral College count on Jan. 6 received an average of $140,000 in small contributions, while House Republicans who opposed Trump and voted to accept Biden’s victory received far less in small donations, an average of $40,000.In a 2019 article, “Small-Donor-Based Campaign-Finance Reform and Political Polarization,” Pildes wrote:It is important to recognize that individuals who donate to campaigns tend, in general, to be considerably more ideologically extreme than the average American. This is one of the most robust empirical findings in the campaign-finance literature, though it is not widely known. The ideological profile for individual donors is bimodal, with most donors clumped at the “very liberal” or “very conservative” poles and many fewer donors in the center, while the ideological profile of other Americans is not bimodal and features strong centrist representation.The rise of the small donor has been a key element driving the continuing decline of the major political parties.Political parties have been steadily losing the power to shape the election process to super PACs, independent expenditure organizations and individual donors. This shift has proved, in turn, to be a major factor in driving polarization, as the newly ascendant sources of campaign contributions push politicians to extremes on the left and on the right.The 2010 Supreme Court decision Citizens United v. F.E.C. was a crucial factor in shaping the ideological commitments of elected officials and their challengers.“The role of parties in funding (and thus influencing) campaigns at all levels of government in America has shifted in recent decades,” Thad Kousser, a political scientist at the University of California-San Diego, wrote in an email.“Parties often played a beneficial role,” he added, “helping to bind together broad coalitions on one side or the other and boosting electoral competition by giving in the most competitive races, regardless of a candidate’s ideology. Then much of their power was taken away, and other forces, often more ideologically extreme and always less transparent, were elevated.”This happened, Kousser continued, “through an accretion of campaign finance laws, Supreme Court decisions and F.E.C. actions and inactions. This has led us toward the era of independent expenditures and of dark money, one in which traditional parties have lost so much power that Donald Trump was able to win the Republican nomination in 2016, even though he began with little support among the party’s establishment.”The polarizing effects of changing sources of campaign contributions pose a challenge to traditional reformers.Raymond La Raja and Brian Schaffner, political scientists at the University of Massachusetts-Amherst and Tufts, wrote in their 2015 book, “Campaign Finance and Political Polarization: When Purists Prevail”:The public intensely dislikes how campaigns are financed in the United States. We can understand why. The system of private financing seems rigged to favor special interests and wealthy donors. Much of the reform community has responded by calling for tighter restrictions on private financing of elections to push the system toward “small donor democracy” and various forms of public financing. These strategies seem to make sense and, in principle, we are not opposed to them.But our research and professional experience as political scientists have led us to speculate that these populist approaches to curtailing money in politics might not be alleviating but contributing to contemporary problems in the political system, including the bitter partisan standoffs and apparent insensitivity of elected officials to the concerns of ordinary Americans that appear to characterize the current state of U.S. politics.La Raja and Schaffner argued that “a vast body of research on democratic politics indicates that parties play several vital roles, including aggregating interests, guiding voter choices and holding politicians accountable with meaningful partisan labels. Yet this research seems to have been ignored in the design of post-Watergate reforms.”The counterintuitive result, they wrote,has been a system in which interest groups and intensely ideological — and wealthy — citizens play a disproportionately large role in financing candidates for public office. This dynamic has direct implications for many of the problems facing American government today, including ideological polarization and political gridlock. The campaign finance system is certainly not the only source of polarization and gridlock, but we think it is an important part of the story.Nathan Persily, a professor of law and political science at Stanford, observed in a telephone interview that the trend in campaign finance has been to “move money from accountable actors, the political parties, to unaccountable groups.”“The parties,” he pointed out, “are accountable not only because of more stringent contribution disclosure requirements but also by their role in actual governance with their ties to congressional and executive branch officials and their involvement with legislative decision making.”The appeal of extreme candidates well to the right or left of the average voter can be seen in the OpenSecrets listing of the top five members of the House and Senate ranked by the percentage of contributions they have received from small donors in the 2021-22 election cycle:Bernie Sanders raised $38,310,351, of which $26,913,409, or 70.25 percent, came from small donors; Marjorie Taylor Greene raised $12,546,634, of which $8,572,027, or 68.32 percent, came from small donors; Alexandria Ocasio-Cortez raised $12,304,636, of which $8,326,902, or 67.67 percent, came from small donors; Matt Gaetz raised $6,384,832, of which $3,973,659, or 62.24 percent, came from small donors; and Jim Jordan raised a total of $13,975,653, of which $8,113,157, or 58.05 percent, came from small donors.Trump provides an even better example of the appeal of extremist campaigns to small donors.In a February 2020 article, “Participation and Polarization,” Pildes wrote: “In 2016, Donald Trump became the most successful candidate ever in raising money from small donors, measured either in aggregate dollars or in the percentage of his total contributions. In total small-donor dollars for the 2015-16 cycle, Trump brought in $238.6 million.”Significantly, Pildes continued, “small donations ($200 or less) made up 69 percent of the individual contributions to Trump’s campaign and 58 percent of the Trump campaign’s total receipts.”Michael J. Barber, a political scientist at Brigham Young, argued in a 2016 paper, “Ideological Donors, Contribution Limits and the Polarization of American Legislatures,” that “higher individual contributions lead to the selection of more polarized legislators, while higher limits on contributions from political action committees (PACs) lead to the selection of more moderate legislators.”In addition to the impact of the small donor on weakening the parties, Pildes wrote in his email,a second major development is the rise of outside spending groups, such as super PACs, that are not aligned with the political parties and often work against the party’s leadership. Many of these 501(c) (tax exempt) groups back more ideologically extreme candidates — particularly during primaries — than either the formal party organizations or traditional PACs. The threat of such funding also drives incumbents to the extreme, to avoid a primary challenger backed by such funding.Details of the process Pildes described can be found in a 2020 study, “Assessing Group Incentives, Independent Spending and Campaign Finance Law,” by Charles R. Hunt, Jaclyn J. Kettler, Michael J. Malbin, Brendan Glavin and Keith E. Hamm.The five authors tracked the role of independent expenditure organizations, many of which operate outside the reach of political parties, in the 15 states with accessible public data from 2006 (before Citizens United) to 2016 (after Citizens United).The authors found that spending by ideological or single-issue independent expenditure organizations, the two most extreme groups, grew from $21.8 million in 2006 to $66 million in 2016.More important, the total spending by these groups was 21.8 percent of independent expenditures in 2006 (including political parties, organized labor, business and other constituencies). Ten years later, in 2016, the amount of money spent by these two types of expenditure group had grown to 35.5 percent.Over the same period, spending by political parties fell from 24 percent of the total to 16.2 percent.Put another way, in 2006, spending by political parties and their allies was modestly more substantial than independent expenditures by more ideologically extreme groups; by 2016, the ideologically extreme groups spent more than double the amount spent by the parties and their partisan allies.On a national scale, Stan Oklobdzija, a political scientist at Tulane, has conducted a detailed study of so-called dark money groups using data from the Federal Election Commission and the I.R.S. to describe the level of influence wielded by these groups.In his April 2023 paper, “Dark Parties: Unveiling Nonparty Communities in American Political Campaigns,” Oklobdzija wrote:Since the Citizens United decision of 2010, an increasingly large sum of money has decamped from the transparent realm of funds governed by the F.E.C. The rise of dark money — or political money routed through Internal Revenue Service (IRS)-governed nonprofit organizations who are subject to far less stringent disclosure rules — in American elections means that a substantial percentage of American campaign cash in the course of the last decade has effectively gone underground.Oklobdzija added that “pathways for anonymous giving allowed interest groups to form new networks and to create new pathways for money into candidate races apart from established political parties.” These dark money networks “channel money from central hubs to peripheral electioneering groups” in ways that diminish “the primacy of party affiliated organizations in funneling money into candidate races.”What Oklobdzija showed is that major dark money groups are much more significant than would appear in F.E.C. fund-raising reports. He did so by using separate I.R.S. data revealing financial linkages to smaller dark money groups that together create a powerful network of donors.Using a database of about 2.35 million tax returns filed by these organizations, Oklobdzija found that “these dark money groups are linked via the flow of substantial amounts of grant money — forming distinct network communities within the larger campaign finance landscape.”Intense animosity toward Trump among Democrats and liberals helped drive a partisan upheaval in dark money contributions. “In 2014,” Oklobdzija wrote by email, “dark money was an almost entirely Republican phenomenon. The largest networks — those around Crossroads GPS and Americans for Prosperity — supported almost exclusively conservative candidates.”In 2018, however, with Trump in the White House, Democratic dark money eclipsed its Republican counterpart for the first time, Oklobdzija wrote:In that year’s midterms, liberal groups that did not disclose their donors spent about twice what conservative groups did. Democrats also developed a network similar to those developed by Koches or Karl Rove with the 1630 Fund, which spent about $410 million total in 2020, either directly on elections or propping up liberal groups. In 2020, Democratic-aligned dark money outspent Republican-aligned dark money by almost 2.5 to 1. In 2022, total dark money spending was about 55 percent liberal and 45 percent conservative, according to the Center for Responsive Politics.A separate examination of the views of donors compared with the views of ordinary voters, “What Do Donors Want? Heterogeneity by Party and Policy Domain” by David Broockman and Neil Malhotra, political scientists at Berkeley and Stanford, finds:Republican donors’ views are especially conservative on economic issues relative to Republican citizens, but are typically closer to Republican citizens’ views on social issues. By contrast, Democratic donors’ views are especially liberal on social issues relative to Democratic citizens’, whereas their views on economic issues are typically closer to Democratic citizens’ views. Finally, both groups of donors are more pro-globalism than citizens are, but especially than Democratic donors.Brookman and Malhotra make the case that these differences between voters and donors help explaina variety of puzzles in contemporary American politics, including: the Republican Party passing fiscally conservative policies that we show donors favor but which are unpopular even with Republican citizens; the focus of many Democratic Party campaigns on progressive social policies popular with donors, but that are less publicly popular than classic New Deal economic policies; and the popularity of anti-globalism candidates opposed by party establishments, such as Donald Trump and Bernie Sanders.Some of Brookman and Malhotra’s specific polling results:52 percent of Republican donors strongly disagree that the government should make sure all Americans have health insurance, versus only 23 percent of Republican citizens. Significant differences were found on taxing millionaires, spending on the poor, enacting programs for those with low incomes — with Republican donors consistently more conservative than Republican voters.On the Democratic side, donors were substantially more liberal than regular voters on abortion, same-sex marriage, gun control and especially on ending capital punishment, with 80 percent of donors in support, compared with 40 percent of regular voters.While most of the discussion of polarization focuses on ideological conflict and partisan animosity, campaign finance is just one example of how the mechanics, regulations and technology of politics can exacerbate the conflict between left and right.The development of microtargeting over the past decade has, for example, contributed to polarization by increasing the emphasis of campaigns on tactics designed to make specific constituencies angry or afraid, primarily by demonizing the opposition.The abrupt rise of social media has, in turn, facilitated the denigration of political adversaries and provided a public forum for false news. “Platforms like Facebook, YouTube and Twitter likely are not the root cause of polarization but they do exacerbate it,” according to a 2021 Brookings report.Some of those who study these issues, including La Raja and Schaffner, argue that one step in ameliorating the polarizing effects of campaign financing would be to restore the financial primacy of the political parties.In their book, La Raja and Schaffner propose four basic rules for creating a party-centered system of campaign finance:First, “limits on contributions to the political parties should be relatively high or nonexistent.” Second, “modest limits should be imposed on contributions to candidates.” Third, “no restrictions should be imposed on party support of candidates. Political parties should be permitted to help their candidates as much as desired with direct contributions or in-kind support.” Fourth, “public financing should support party organizations.”Persily, however, voiced strong doubts about the effectiveness of these proposals. “You cannot put the toothpaste back in the tube,” he said, noting that polarization is becoming embedded in the personnel and decision-making processes of political parties, especially at the state and local levels, making a return to the parties’ past role as incubators of moderation unlikely.Broockman, Nicholas Carnes, Melody Crowder-Meyer and Christopher Skovron provided support for Persily’s view in their 2019 paper, “Why Local Party Leaders Don’t Support Nominating Centrists.” Broockman and his colleagues surveyed 1,118 county-level party leaders and found that “given the choice between a more centrist and more extreme candidate, they strongly prefer extremists, with Democrats doing so by about two to one and Republicans by 10 to one.”If what Broockman and his co-authors found about local party leaders is a signal that polarized thinking is gaining strength at all levels of the Democratic and Republican Parties, the prospects for those seeking to restore sanity to American politics — or at least reduce extremism — look increasingly dismal.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      How Utilities Use Money From Your Bills to Block Clean Energy

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      To avoid the worst impacts of climate change, we have to make two big transitions at once: First, we have to generate all of our electricity from clean sources, like wind turbines and solar panels, rather than power plants that run on coal and methane gas. Second, we have to retool nearly everything else that burns oil and gas — like cars, buses and furnaces that heat buildings — to run on that clean electricity.These changes are underway, but their speed and ultimate success depend greatly on one kind of company: the utilities that have monopolies to sell us electricity and gas.But around the country, utility companies are using their outsize political power to slow down the clean energy transition, and they are probably using your money to do it.State regulators are supposed to make sure that customers’ monthly utility bills cover only the cost of delivering electricity or gas and to set limits on how much utilities can profit. But large investor-owned utilities, with legions of lawyers to help them evade scrutiny, bake many of their political costs into rates right alongside their investments in electrical poles and wires. In doing so, they are conscripting their customers into an unknowing army of millions of small-dollar donors to prolong the era of dirty energy.Fortunately, Colorado, Connecticut and Maine passed laws this spring that prohibit utilities from charging customers for their lobbying, public relations spending and dues to political trade associations like the American Gas Association and the Edison Electric Institute. Regulators in Louisiana are considering similar policy changes. Every state in the country should follow those leads.These reforms are crucial because while all corporations in the United States can spend money on politics, in most cases, consumers who don’t approve can take their business elsewhere. Utilities — as regulated monopolies — have the unique ability to force customers to participate.It’s not that utilities aren’t interested in building and profiting from clean energy. Many are doing so, and the Inflation Reduction Act offers utilities extensive tax incentives to increase their investments in wind, solar and batteries. But that does not mean that utilities want others to do the same. They will support a clean energy transition only if it happens exclusively on their terms and at their pace — a stance at odds with the scope and urgency of the herculean task of decarbonizing our electric grid.Most electric utilities view distributed energy — technologies owned by customers that generate electricity in smaller amounts — as a threat to their business. They have tried for years to stop their customers in many states from investing in rooftop solar by rigging rates to make it less economically attractive. They’ve also funded opposition to policies that would speed clean energy.Florida Power & Light spent millions of dollars on political consultants who are accused of engineering a scheme to siphon votes to third-party ghost candidates, according to reporting by The Orlando Sentinel. The ghost candidates never campaigned, but their names appeared on ballots for competitive State Senate seats in an effort to spoil the chances of Democrats who had been critical of the utilities. One of the Democrats had repeatedly introduced legislation supportive of rooftop solar power, which Florida Power & Light has crusaded against for years, including writing legislation in 2021 that would have slowed its growth. “I want you to make his life a living hell,” the utility’s chief executive wrote in an internal email. The legislator lost by fewer than 40 votes. Florida Power & Light has denied wrongdoing in the ghost candidate scandal.Utilities also have also fought to cling to plants powered by fossil fuels as long as possible. In Ohio the utility FirstEnergy concealed $60 million in bribes through a web of dark-money groups to the political organization of the state’s speaker of the House. Before his conviction and sentencing for this instance of racketeering, he helped pass a law that secured a $1.3 billion ratepayer-funded bailout for FirstEnergy’s bankrupt nuclear and coal plants, gutted the state’s renewable energy and energy efficiency standards for utilities and bailed out coal plants owned by other utilities. Audits showed that FirstEnergy used money collected from ratepayers in its scheme.Electric utilities have even opposed policies to hasten the development of desperately needed long-range transmission wires for clean energy, as NextEra Energy, Florida Power & Light’s parent company, spent millions to do in New England, where NextEra generates and sells power from oil and gas.And many utility conglomerates don’t just sell electricity; they also sell methane gas, a serious threat to decarbonization efforts. Many of those gas utilities are fighting tooth and nail against local communities’ efforts to electrify our buildings and using ratepayers’ money to do so. In California, SoCalGas, the nation’s largest gas distribution utility, has been caught illicitly and repeatedly misusing ratepayer money to fight cities’ building electrification plans. In New York the gas utility National Fuel reportedly made its customers pay for advocacy materials directing New Yorkers to oppose pro-electrification policies.The Colorado, Connecticut and Maine laws address these tactics by prohibiting utilities from charging customers for a suite of political activities. Other states and the federal government should go further in two ways:First, they should add mandatory enforcement provisions so that if utilities illegally charge customers for political activities, stiff and automatic fines would kick in.Second, policymakers should, at minimum, require that utilities disclose all political spending. The recently passed state laws won’t stop utilities from spending their profits on politics. The post-Citizens United campaign finance landscape makes it difficult to restrict such expenditures, but it does not protect companies’ ability to spend secretly, which is how utilities like FirstEnergy, Florida Power & Light and SoCalGas have attempted their most noxious influence campaigns.Utilities are too central to the clean energy transition to be allowed to dictate our energy and climate policies based on their profit motives. Limiting their influence gives us the best chance to move quickly and affordably to a safer and cleaner future.David Pomerantz is the executive director of the Energy and Policy Institute, a utility watchdog organization.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Does Justice Alito Hear Himself?

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      For someone who wields unimaginable power and exudes utter confidence in his own moral rectitude, Justice Samuel Alito is an exceptionally touchy guy.Exhibit A: His decision to devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published, and which he considered invalid in the first place. The essay, in both form and substance, epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.The nature of the charges, detailed in a deeply reported article published by ProPublica on Tuesday evening, will sound familiar after the recent revelations about the casual attitude of several justices regarding the most basic ethical standards.In 2008, Justice Alito accepted a free flight to a luxury fishing resort in Alaska on a private jet owned by Paul Singer, the hugely wealthy hedge-fund owner and major conservative donor. When one of Mr. Singer’s companies later appeared before the court in a multibillion-dollar lawsuit against the Argentine government, it won its case, eventually netting $2.4 billion. Justice Alito voted in the majority. He neither recused himself from the case nor reported the free flight, which could have cost him up to $100,000 on the open market, and which appears to be a violation of a federal law requiring the disclosure of such gifts.Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all. Remember when he mouthed “not true,” on live national television, in reaction to President Barack Obama’s criticism of the court’s Citizens United decision during the 2010 State of the Union address? Or when he attacked liberals as threatening religious liberty and free speech? Or when he mocked the critics of his majority opinion last year striking down Roe v. Wade and a woman’s constitutional right to abortion? You’d think you were listening to a pugnacious politician rather than a high-minded jurist — and you would not be entirely wrong.On Tuesday evening, hours before the ProPublica report came out, Justice Alito took to the ramparts again. In a lengthy screed on The Wall Street Journal’s opinion page, he absolved himself of any wrongdoing, flatly rejecting any suggestion that he should have recused himself or reported Mr. Singer’s gift. Recusal is required only when “an unbiased and reasonable person who is aware of all relevant facts would doubt that the justice could fairly discharge his or her duties,” he wrote, quoting the court’s recently adopted statement of ethics and principles. “No such person,” he concluded, “would think that my relationship with Mr. Singer meets that standard.”One of the hazards of an unelected lifetime gig is that you have little idea of what regular people actually think. Contrary to Justice Alito’s cosseted worldview, the real reason “no such person” would doubt his impartiality is that no such person exists. The justice never disclosed the existence of the trip, so no one was aware of “all relevant facts” besides himself, Mr. Singer and the other people on the plane.But even if the relationship had been known, can anyone say with a straight face that no “unbiased and reasonable person” would question the justice’s impartiality when he votes for someone who gave him a valuable gift? Isn’t there at least the appearance that something other than the strict application of the rule of law is at work? And appearances count, perhaps nowhere more than at the Supreme Court, which is the final arbiter of many of the most fraught issues of American life.Justice Alito is hardly the first member of the current court to face charges of serious ethical lapses. Nearly all the other justices, conservative and liberal, have accepted free travel and other gifts over the years, although these have rarely involved such a clear connection to cases that have come before the court. Justice Clarence Thomas has been under fire for, among other things, failing to recuse himself from cases involving the Jan. 6 Capitol insurrection, even though his wife, Ginni, was in regular communication with the Trump White House in an attempt to overturn the 2020 election. More recently, ProPublica has reported on Justice Thomas’s ties to Harlan Crow, another conservative billionaire who has lavished gifts on him and his wife over the years, and who has been connected to at least one business with a case before the court.Justice Thomas has mostly kept his mouth shut, though he did issue a brief statement after the ProPublica article about him. Justice Alito, by choosing to speak up at length and in a forum that he knew would be both friendly and prominent, muscled his opinion into public view. In doing so, he illustrated how flimsy even a Supreme Court justice’s reasoning can be when he attempts to be a judge in his own cause.For instance, Justice Alito defended his decision not to report Mr. Singer’s freebie because it was “personal hospitality,” which he believed, like his colleague Justice Thomas, did not need to be reported. And yet he also claimed he barely knew Mr. Singer. So which is it? “If you were good friends, what were you doing ruling on his case?” one legal-ethics expert said to ProPublica. “And if you weren’t good friends, what were you doing accepting this?”Rather than try to square that circle and admit he’d been caught doing something ethically wrong and arguably illegal, Justice Alito went to laughable lengths to lawyer his way out. As far as he was aware, he wrote, the seat he occupied on his private-jet jaunt to Alaska “would have otherwise been vacant” — by which he presumably means to say the gift was valueless. Remind me to try that one out the next time I walk past an empty first-class seat on a Delta flight. Seriously, though: do these guys listen to themselves?Justice Alito doesn’t like these sorts of questions. In fact, he doesn’t seem to like any criticism of the court. In addition to getting his back up about ethical complaints, he is aggrieved about challenges to the court’s blatantly partisan decisions and its increasing reliance on the secretive “shadow docket” to issue rulings without oral arguments or written opinions.“We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us,” he said in an interview in April with The Wall Street Journal.If Justice Alito doesn’t appreciate being called out for taking lavish trips on litigants’ dimes, or for overturning precedent to impose his personal ideology, then he might consider not doing those things in the first place. Instead, he chooses to shoot the messenger.It is this odor of impunity, this mockery of legitimate critique, this disregard for the rights and freedoms of millions of Americans — this “stench” of politicization, as Justice Sonia Sotomayor put it during oral arguments in the case that eventually overturned Roe v. Wade — that defines today’s Supreme Court. That should concern Chief Justice John Roberts above all, because his name and legacy will be forever attached to this court.And that is why, if the justices are confused as to the reason public trust in the court is in free fall, they need look no further than Justice Alito’s smug, defensive reaction to a very fair criticism. As long as the court refuses to accept significantly stricter ethics rules, either adopted by themselves or imposed by Congress, that trust — and with it the court’s legitimacy — will continue to erode until it’s not worth a seat on a private jet.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Ron DeSantis Finds a New Set of Laws to Ignore

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      There once was a Florida fund-raising committee called Friends of Ron DeSantis, which was overflowing with the $142 million it had raised. Mr. DeSantis used it personally for his campaign to be re-elected governor of Florida in 2022, but that was far more than he needed for that race, and when he was done he still had $86 million left over.But one day that committee disappeared. In fact, it was on May 15, just nine days before Mr. DeSantis announced that he was running for president. In paperwork filed that day, the committee changed its name to Empower Parents PAC and the governor’s name appears nowhere on the website’s home page. And just as that filing was made, the super PAC that is supporting Mr. DeSantis’s presidential ambitions said that it would be getting more than $80 million in leftover money transferred from Empower Parents.That transfer represents a new frontier in the long-running battle to undermine presidential campaign finance laws. And it is only one example of the many ways in which Mr. DeSantis, in particular, has tried make a mockery of those laws. If you want a preview of how Mr. DeSantis views the government’s limits on power and plutocracy — as feeble as they are already — there’s no better place to look than his campaign.There’s a reason that state political committees can’t just transfer their money into presidential super PACs. The Supreme Court’s 2010 Citizens United decision, which led to the creation of super PACs, said plainly that those committees had to be independent of a candidate’s campaign in order to receive unlimited contributions.But Friends of Ron DeSantis, as a state committee, was never independent of its namesake. He signed the paperwork to set it up in 2018, and listed himself as the person to solicit and accept all of its contributions. That was true until May 5 of this year, when he filed another official letter with the state saying that he was no longer soliciting or accepting contributions.The state committee had already become something of a slush fund for donors who wanted to help Mr. DeSantis’s long-term ambitions, which were never well disguised. Consider this: Mr. DeSantis was re-elected on Nov. 8, and is prevented by law from running for a third consecutive term. But the committee took in more than $15 million after the election. Why, for example, would Gregory P. Cook, whose essential-oils company, doTERRA, received a warning letter in 2020 and a lawsuit from the Federal Trade Commission for making false claims about preventing Covid, donate $1.3 million to Friends of Ron DeSantis on Feb. 22 of this year? Is it possible that he might want better treatment from a DeSantis presidency?The State of Florida certainly knew it was wrong to transfer money from a state campaign fund to a federal one. Since at least 2016, the biennial handbook issued by the Florida Division of Elections had expressly prohibited that move. “A Florida political committee must use its funds solely for Florida political activities,” the handbook said. But as NBC News reported, the DeSantis administration quietly deleted that wording, and this year’s version of the handbook conveniently says for the first time that such transfers are allowed. The new handbook bases its reasoning on the Citizens United decision — which of course had been in effect for 13 years, including when the handbook prohibited the move.The Campaign Legal Center, a nonprofit group that closely monitors these kinds of transactions, has filed a complaint against the DeSantis campaign with the Federal Election Commission, saying the transfer is illegal. But as Team DeSantis knows, the commission has deadlocked so often — with three Republicans countering three Democrats — that it has become toothless. In a similar but smaller case last year when a Republican member of the House tried to transfer state campaign funds, the commission refused to take action after the usual 3-to-3 vote.The transfer is only one of the ways Mr. DeSantis is pushing the limits of the campaign finance system. The super PAC supporting his presidential run, bearing the schoolboy name of “Never Back Down,” has made it clear that it has a dangerously broad view of what its role should be.Up to now, the main role of super PACs in elections has been to run TV ads in favor of a candidate or against an opponent, with an unconvincing disclaimer in small print at the end that the ad sponsor is not associated with any campaign or candidate. Super PACs can take in contributions of unlimited size, so they’ve been a great vehicle for wealthy donors, unions and corporations to demonstrate loyalty to a candidate without bumping up against the $3,300 individual donation limit per election for giving directly to a campaign.Those ads are bad enough, but Never Back Down is going much further by essentially taking over many of the main functions of the DeSantis campaign itself. As The Washington Post recently reported, the super PAC is opening office space in each of the early primary states, organizing a corps of door-knockers and volunteers, and launching a “Students for DeSantis” effort on university campuses, among other grass-roots organizing work. “This is going to be expansive and a completely different kind of super PAC,” Kristin Davison, the chief operating officer of Never Back Down, told The Post.The Times reported that Never Back Down is preparing to spend more than $100 million on the DeSantis field operation, hiring 2,600 workers by Labor Day to “knock on the door of every possible DeSantis voter at least four times in New Hampshire, Nevada and South Carolina — and five times in the kickoff Iowa caucuses.” The report quoted another leader of the super PAC as saying that no one had ever tried an effort like this before.One reason for that may be its dubious legality. No definition of a super PAC — technically defined as an “independent expenditure committee” (emphasis added) — can conceivably include that much detailed organizing work on behalf of a candidate, and it is impossible to imagine it can be done without silently coordinating with the “real” DeSantis campaign. By having wealthy donors, some of whom make multimillion-dollar contributions, pay for such fieldwork, the campaign can spend more money on things that only it can do, such as transporting the candidate and getting on 50 state ballots. That’s why donations given directly to a campaign, known as “hard money,” are much more valuable to a candidate, as well as being harder to raise because of the contribution limits.But as Mr. DeSantis has demonstrated repeatedly in Florida, he’ll just blow past the guardrails of the law if it suits his purposes. In his latest attempt to shatter the concept of independence, his super PAC has been put to work raising money directly for Mr. DeSantis’s campaign.Before the governor’s official announcement last month, Never Back Down raised $500,000 in hard money for a “draft committee,” all of which was to be transferred directly to the campaign once it became official, CBS News reported. For the draft committee, the super PAC limited contributions to the $3,300 limit, but by doing the work of fund-raising, and using its list of donors, the super PAC was in essence making a huge but unreported contribution to the campaign. One campaign finance expert described this effort by the super PAC as “unprecedented.”And the closeness between Never Back Down and the campaign continues to this moment. If you go to Never Back Down’s website, and click on the big red “donate” button at the top, it takes you to a page that collects donations for the campaign, not the super PAC.“This is effectively a huge in-kind gift to DeSantis’s campaign and will subsidize his fund-raising costs considerably, which is exactly the sort of role a super PAC should not be allowed to play,” said Saurav Ghosh, director of federal campaign finance reform at the Campaign Legal Center.On top of all that, the governor’s chief of staff, James Uthmeier, was used as one of the presidential campaign’s biggest fund-raisers, as NBC News reported Thursday. Breaching any ethical barrier between public service and politics, Mr. Uthmeier had administration officials around Florida pressure lobbyists to contribute to Mr. DeSantis’s campaign.Mr. DeSantis is hardly the only politician in the race who has demonstrated contempt for basic ethics and campaign finance laws. Donald Trump has funneled money from his leadership PAC to his super PAC, a different kind of abuse that has also drawn a complaint before the F.E.C. But Mr. DeSantis’s actions are pathbreaking in an unusually wanton and disdainful way. If that path should lead to the White House, it’s clear that big money will have a welcome place in American politics under his administration.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Supreme Court Has Earned a Little Contempt

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      Although the Supreme Court has been deciding cases at a glacial pace this term — and that with an almost comically small docket of only 59 merits cases — the justices have found other ways to keep busy. They have been spinning their ethical lapses (Justice Clarence Thomas), blowing off congressional oversight (Chief Justice John Roberts), giving interviews whining about public criticism (Justice Samuel Alito) and presenting awards to one another (Justice Elena Kagan to Mr. Roberts).In the cases it has decided, the Supreme Court has gutted an important provision of the Clean Water Act and made it easier for private litigants to mount constitutional challenges to an administrative agency’s structure or existence. Opinions still to come threaten to strike down everything from affirmative action in education to student debt relief to the Indian Child Welfare Act.Court observers might be tempted to describe all this as a relatively recent development, a function of the court’s 6-to-3 Republican-appointed supermajority. The University of Michigan law professor Leah Litman has called this the “YOLO court” (for “you only live once”), because of the majority’s apparent sense of liberation in pursuing long-held conservative goals. Mark Lemley of Stanford placed the beginning of the “imperial Supreme Court” in 2020.Mr. Lemley is right to decry the self-aggrandizing nature of the court. But his dating is somewhat off. Judicial self-aggrandizement has been in the works for a lot longer: It has been a hallmark of the John Roberts years.Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency. And they have done so in language that drips with contempt for other governing institutions and in a way that elevates the judicial role above all others.The result has been a judicial power grab.Judges have long portrayed themselves as neutral, apolitical conduits of the law, in contrast to the sordid political branches. This portrayal serves to obscure the institution of the judiciary and to foreground the abstract, disembodied concept of the law. In turn, it serves to empower judges, who present themselves not as one type of political actor but rather as the voice of the majestic principles of the law.But Mr. Roberts’s judiciary has increasingly taken subtext and made it text. Here are three thematic examples out of many.Campaign Finance LawStarting with Citizens United in 2010, the Republican-appointed majority on the court has consistently struck down provisions limiting the influence of money in politics, including provisions that it previously upheld. In a 2014 case, Mr. Roberts wrote that campaign finance regulations that pursue objectives other than eradicating quid pro quo corruption or its appearance “impermissibly inject the government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”In this brief passage, Mr. Roberts implicitly distances his own institution from “the government” of which it is obviously a part, implies that the court stands outside the processes of governance, and suggests that there is something self-dealing and borderline corrupt about campaign finance laws passed by elected legislatures.In these same cases, the justices have described nonjudicial political speech in terms that make it sound kind of … icky. It involves “sound bites, talking points and scripted messages that dominate the 24-hour news cycle,” in Justice Anthony Kennedy’s words. This sort of speech deserves protection for the same reasons that “flag burning, funeral protests and Nazi parades” do, in Mr. Roberts’s.Yet there has been one glaring exception to the majority’s hostility to campaign finance regulations: In the context of state judicial elections, they have upheld restrictions that they would be highly unlikely to tolerate in the context of nonjudicial elections. Tellingly, these cases describe judges in a manner that starkly contrasts with how they have described nonjudicial officeholders.As Mr. Kennedy put it in a 2009 case about when campaign spending required a state judge to recuse himself, “Precedent and stare decisis and the text and purpose of the law and the Constitution, logic and scholarship and experience and common sense, and fairness and disinterest and neutrality are among the factors at work” when judges consider cases — a far cry from the “sound bites, talking points and scripted messages” of nonjudicial political speech.And in a 2015 case upholding a Florida law that forbade candidates for judicial office from personally soliciting campaign contributions, Mr. Roberts, anachronistically appealing to the authority of Magna Carta, wrote that judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity” and concluded that “judges are not politicians, even when they come to the bench by way of the ballot.”Mr. Roberts’s protestations to the contrary notwithstanding, judges are political actors, and striking down federal election laws is an aggressive act of governance by the judiciary. And the justices’ language in these cases, holding up judges as noble instruments of the law and denigrating other officeholders as power-grubbing and superficial, serves to reinforce and justify the notion that they are uniquely qualified to govern us.Congressional OversightOn one day in 2020, the court decided two cases dealing with very similar subpoenas for information about President Donald Trump’s financial and business dealings. One set of subpoenas came from congressional committees; the other came from a New York State grand jury.Mr. Roberts wrote both opinions. In the case dealing with congressional subpoenas, he worried that Congress may aim to “harass the president or render him ‘complaisan[t] to the humors of the legislature.’” Accordingly, the subpoenas must be superintended by the courts, lest the legislature “‘exert an imperious controul’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” (The internal quotations there are from the Federalist Papers to provide a patina of antiquity.) He thus announced a multipart balancing test that applies only when Congress seeks the personal papers of the president.While that decision made the president a supercitizen vis-à-vis congressional subpoenas, the other opinion emphasized that he is just a regular citizen when it comes to judicial subpoenas. Unlike Congress, apparently, a grand jury requires “all information that might possibly bear on its investigation.” Whereas Mr. Roberts worried about Congress harassing the president, “we generally ‘assume[] that state courts and prosecutors will observe constitutional limitations.’”Not only do these opinions stymie congressional oversight — the papers were not handed over to the committees until nearly two years into the Biden administration — they also do so using language that elevates judicial institutions while denigrating legislative ones.Federal RegulationCongress is not alone; administrative agencies also bear the brunt of the justices’ disdain. In a series of recent cases that, for example, struck down the E.P.A.’s clean power plan for addressing climate change, the Republican-appointed justices have invented the so-called major questions doctrine. If they consider an issue major — and they have not told us what makes a question major beyond “vast economic and political significance” or “earnest and profound debate across the country” — then they will not allow an agency to regulate in that manner unless Congress has clearly stated that it may.To use an analogy: If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to “eat any dessert it chooses.” It must legislate that the agency can “eat any dessert it chooses, including ice cream cones.” But Congress has no way of knowing whether eating an ice cream cone is major until it sees what a majority of justices have to say about it.In justifying this doctrine, the justices have raised the specter of out-of-control bureaucrats intruding on the liberty of citizens, undermining legal stability, serving only special interests and invading the domain of the states.You might think that this doctrine is meant to protect congressional power, except that it dictates to Congress how it must legislate, despite the fact that Congress has no way of knowing in advance what issues will be considered major. Moreover, as the legal scholar Beau Baumann has noted, Justice Neil Gorsuch and his colleagues have justified the doctrine on the grounds that Congress is too eager to delegate to agencies in order to avoid political responsibility, so the courts must keep Congress in line. In other words, the justices are paternalistically claiming to protect Congress from itself.***In all of these areas and in plenty more, the justices have seized for themselves an active role in governance. But perhaps even more consequentially, in doing so, they have repeatedly described other political institutions in overwhelmingly derogatory terms while either describing the judiciary in flattering terms or not describing it at all — denying its status as an institution and positioning it as simply a conduit of disembodied law.This is the ideological foundation for the Roberts-era judicial power grab.It is also worth noting that this ideological project is bipartisan. Republican-appointed justices dominate the court and have for many decades, but their Democratic-appointed colleagues — while dissenting in many individual opinions — evince no desire to contest the underlying disdain for other institutions or elevation of their own. When Mr. Roberts recently refused to testify before the Senate Judiciary Committee, nothing stopped Justices Sonia Sotomayor, Elena Kagan or Ketanji Brown Jackson from volunteering to testify, but they did not. Nothing is stopping them from publicly calling for a binding ethics code or from questioning not just the correctness but also the legitimacy of their institution’s assertiveness, but they have not.Recognizing the justices’ ideological project also points to the beginning of the solution. We ought to begin talking about the justices the way we talk about other political actors — recognizing that their first name is not Justice and that they, like other politicians, should be identified by their party.We should stop talking about another branch’s potential defiance of a judicial opinion as an attack on “the rule of law” and instead understand it as an attack on rule by judges, one that may (or may not) be a justified response to some act of judicial governance. And those other branches should be more willing — as they have at other moments in American history — to use the tools at their disposal, including cutting the judiciary’s funding, to put the courts in their place.In recent years, the judiciary has shown little but contempt for other governing institutions. It has earned a little contempt in return.Josh Chafetz (@joshchafetz) is a law professor at Georgetown and the author of “Congress’s Constitution.” This essay is adapted from a forthcoming article in The St. Louis University Law Journal.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Why the Supreme Court Is Blind to Its Own Corruption

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      The scandal surrounding Justice Clarence Thomas has further eroded the already record-low public confidence in the Supreme Court. If Chief Justice John Roberts wonders how such a thing could have happened, he might start looking for answers within the cloistered walls of his own courtroom.Over more than two decades, the Supreme Court has gutted laws aimed at fighting corruption and at limiting the ability of the powerful to enrich public officials in a position to advance their interests. As a result, today wealthy individuals and corporations may buy political access and influence with little fear of legal consequences, either for them or for the beneficiaries of their largess.No wonder Justice Thomas apparently thought his behavior was no big deal.He has been under fire for secretly accepting, from the Republican megadonor Harlan Crow, luxury vacations worth hundreds of thousands of dollars, a real estate deal (involving the home where his mother was living) and the payment of private school tuition for a grandnephew the justice was raising. Meanwhile, over the years, conservative groups with which Mr. Crow was affiliated filed amicus briefs in several matters before the Supreme Court.That sounds like the very definition of corruption. But over the years, many justices — and not just conservatives — have championed a different definition.The landmark case is the court’s 2010 decision in Citizens United v. Federal Election Commission. A five-justice majority — including Justice Thomas — struck down decades-old restrictions on independent campaign expenditures by corporations, holding that they violated the companies’ free speech rights. It rejected the argument that such laws were necessary to prevent the damage to democracy that results from unbridled corporate spending and the undue influence it can create.The government’s legitimate interest in fighting corruption, the court held, is limited to direct quid pro quo deals, in which a public official makes a specific commitment to act in exchange for something of value. The appearance of potentially improper influence or access is not enough.In dissent, Justice John Paul Stevens accused the majority of adopting a “crabbed view of corruption” that the court itself had rejected in an earlier case. He argued that Congress has a legitimate interest in limiting the effects of corporate money on politics: “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”Citizens United opened the floodgates to unlimited corporate spending on behalf of political candidates and to the influence that spending necessarily provides. But the decision didn’t come out of nowhere: The court has often been unanimous in its zeal for curtailing criminal corruption laws.In the 1999 case of United States v. Sun-Diamond Growers of California, the court unanimously held, in effect, that it is not a violation of the federal gratuities statute for an individual or corporation to have a public official on private retainer. The court rejected a theory known as a “status gratuity,” where a donor showers a public official with gifts over time based on the official’s position (that is in contrast with a more common gratuity, given as a thank you for a particular act by the official). The quite reasonable rationale behind that theory was that when matters of interest to the donor arose, the past gifts (and hope for future ones) might lead the official to favor his or her benefactor.That actually sounds a lot like the Crow-Thomas relationship. But the court held that such an arrangement is not unlawful. The gratuities law, the court ruled, requires that a particular gift be linked to a particular official act. Without such a direct link, a series of gifts to a public official over time does not violate the statute, even if the goal is to curry favor with an official who could act to benefit the gift giver.In the wake of Sun-Diamond, federal prosecutors increasingly turned to a more expansive legal theory known as honest services fraud. But in Skilling v. United States, the court ruled that theory is limited to cases of bribes and kickbacks — once again, direct quid pro quo deals. Three justices, including Justice Thomas, wanted to go even further and declare the statute that prohibits honest services fraud unconstitutional.The court proceeded to limit its “crabbed view of corruption” even further. In the 2016 case McDonnell v. United States, the court held that selling government access is not unlawful. Gov. Bob McDonnell of Virginia and his wife, Maureen, accepted about $175,000 in secret gifts from the businessman Jonnie Williams, who wanted Virginia’s public universities to perform research studies on his company’s dietary supplement to assist with its F.D.A. approval. In exchange, Mr. McDonnell asked subordinates to meet with Mr. Williams about such studies and hosted a luncheon at the governor’s mansion to connect him with university health researchers.A jury convicted the McDonnells on several counts of corruption. The U.S. Court of Appeals for the Fourth Circuit — hardly known as a bastion of liberalism — unanimously affirmed the convictions. But the Supreme Court unanimously reversed, holding that the things Mr. McDonnell did for Mr. Williams did not qualify as “official acts” under federal bribery law. Selling official access may be tawdry, the court held, but it is not a crime.Those who think Justice Thomas may be guilty of corruption may not realize just how difficult the court itself has made it to prove such a case. Now only the most ham-handed officials, clumsy enough to engage in a direct quid pro quo, risk prosecution.Viewed in light of this history, the Thomas scandal becomes less surprising. Its own rulings would indicate that the Supreme Court doesn’t believe what he did is corrupt. A powerful conservative with interests before the court who regularly provides a justice with vacations worth more than his annual salary is, as the court said in Citizens United, merely the “appearance” of potential corruption. In the court’s view, the public has no reason to be concerned.But the public clearly is, and should be, concerned over the ability of the rich and powerful to purchase access and influence unavailable to most citizens. Unfortunately, Citizens United is here to stay without a constitutional amendment or an overruling by the court, neither of which is very likely.But it’s still possible for the rest of the country to move past the court’s naïve and inadequate view of corruption. Congress could amend criminal corruption laws to expand their scope and overturn the results in Sun-Diamond, Skilling and McDonnell. It could increase funding for enforcement of the Ethics in Government Act and increase the penalties for filing a false financial disclosure form (or failing to file one at all). Beefed up disclosure regulations could make it more difficult for officials to hide financial interests and could make it clear there are no disclosure exceptions for enormous gifts of “personal hospitality,” contrary to what Justice Thomas claims he believed. And Congress could pass legislation like the proposed Disclose Act, to require transparency regarding who is behind political donations and spending.Congress so far has shown little interest in passing such reforms. But that’s where the remedy lies. It’s time for Congress to act.In his Citizens United dissent, Justice Stevens observed, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” That’s exactly how it now appears to the public — and that applies to Supreme Court justices as well as to politicians.Randall D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      New Jersey Gov. Murphy Signs Bill That Reshapes Campaign Finance Laws

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      The bill doubles New Jersey’s campaign contribution limits and quashes investigations by a watchdog agency.In January, a watchdog agency created 50 years ago to safeguard the integrity of campaign fund-raising in New Jersey filed four complaints. Three cited irregularities in powerful Democrat-led accounts, and one dinged a committee set up to elect Republicans.All of the complaints had the potential to result in hefty fines. And all of them vanished Monday afternoon when the governor, Philip D. Murphy, signed a controversial bill that fundamentally reshapes New Jersey’s campaign finance laws.The bill, which narrowly cleared the State Legislature last week, began as a way to double donation limits to candidates and to require some so-called dark money fund-raising groups to disclose large donors, whose identities are currently secret.But as the legislation moved through Trenton, where Democrats control the Assembly and Senate, amendments were added that make it harder to rein in — or police — campaign spending.One change gives Mr. Murphy an easier way to replace the executive director of the Election Law Enforcement Commission, known as ELEC. Another lets state and county political committees collect contributions to pay for operating expenses — funds that Philip Hensley, a policy analyst for the League of Women Voters of New Jersey, has decried as unregulated “slush money.”And a third alteration to the bill slashes the time for investigating allegations of impropriety to two years, down from 10. The change is retroactive, and the four complaints filed in January, which stem from fund-raising done in 2017, will be quashed, along with an estimated 80 percent of the agency’s other open investigations, officials have said.On Monday afternoon, the governor’s office sent an email that noted he had signed the bill, but it offered no additional comment.The overhaul of New Jersey’s campaign finance rules comes 13 years after a United States Supreme Court ruling in favor of Citizens United unleashed limitless federal spending by corporations and unions. Since then, some Republican and Democrat-led states have also taken steps to curb the enforcement powers of agencies set up to limit the influence of money in government. “At a time when people everywhere are concerned about the health of democracy in our country,” Mr. Hensley said, “this is just the antithesis of good government.”He called New Jersey’s new law a “frontal assault on some of the rules that have protected good government.”After the bill passed, the election agency’s three commissioners — two Democrats and one Republican — resigned in protest. The fourth seat on the board had been vacant.Stephen M. Holden, a Democrat and former state judge who quit the board last week, called the legislation a “transparent abuse of power.”“It eviscerates our authority and independence,” he said.The two-year time clock for investigations will start at the moment an infraction occurs. But allegations of impropriety rarely surface until at least six months to a year after an election, Mr. Holden said.“If we didn’t get to you within two years, you’re home free,” he said ruefully.Nicholas Scutari, the Democratic president of the State Senate and a sponsor of the bill, has defended the altered statute of limitations, likening the 10-year time frame to a police officer writing a ticket long after a traffic infraction.The agency’s executive director, Jeffrey M. Brindle, had argued that a five-year window would be appropriate, bringing New Jersey in line with many other states.Opponents of the bill said that the two-year statute of limitations was a bald political effort to quash pending investigations and to be free of risk from any as-yet-undiscovered campaign finance violations that took place before April 2021.“What is in those previous eight years yet to be investigated that they don’t want to be investigated?” asked Assemblyman Brian Bergen, a Republican and one of the most vocal opponents of the bill.“Just wiping it off the books? This doesn’t pass the sniff test,” he added.He found rare common cause with many of the state’s left-leaning advocacy organizations, which fought for over a month against the bill.“It rolls back decades of reform,” Mr. Bergen said.The bill became intertwined with the Murphy administration’s efforts to remove Mr. Brindle from a job he has held for 14 years after the discovery of an email he wrote, which the attorney general’s office later concluded was “demeaning” to members of the gay community.Mr. Brindle has since sued the governor and several aides for what his lawyer has said was an effort to extort Mr. Brindle’s resignation by threatening to publicize the email. Mr. Murphy’s spokesman has said that Mr. Brindle was never threatened.The new law gives Mr. Murphy 90 days to appoint an entirely new four-person election board, circumventing the traditional approval needed from the State Senate. The commissioners, who are empowered to hire and fire the agency’s executive director, would also be paid a $30,000 annual stipend.In Mr. Murphy’s most recent comments about the legislation, during a March 22 radio broadcast, the governor declined to discuss the merits of the bill, instead noting that his administration had expanded voting access over the last several years.“Anything that we believe is on the side of transparency that is responsible, that opens up democracy, that shines a light as opposed to the opposite, assume that we’re going to be for it,” he said, noting that at the time, the bill was still being amended. “I think we wait and see what the final, what this looks like as it iterates.” More