The Right’s Secret Plan to Help Billionaires Buy Elections

The following is adapted from here for a discount and a free e-book version.

On the 20th anniversary of the creation of the Roberts Citizens United precedent that empowers oligarchs to buy elections. 

And yet, in two little-noticed cases — including one spearheaded by Vice President J.D. Vance — the high court could soon do the opposite, eliminating the last restrictions on campaign donations and obstructing law enforcement’s efforts to halt bribery. 

As we recount in our campaign finance system and legalize corruption. What started as an incendiary memo from soon-to-be Supreme Court Justice Lewis Powell became one ruling equating money with constitutionally protected speech and another extending personhood rights to corporations. 

Soon after John Roberts and Sam Alito were installed on the court two decades ago, they helped deliver the apotheosis: 2010’s Citizens United opinion manufacturing the legal fiction that spending by — and donations to — allegedly independent political groups cannot be limited because those expenditures “do not give rise to corruption or the appearance of corruption.”

Though Citizens United unleashed a ruling and eliminate restrictions on political parties’ coordinated spending with candidates. If those rules are killed off, party committees could become pass-through conduits for big donors to circumvent donation limits and deliver much larger payments in support of lawmakers who can reward them with government favors.

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Once again, the master planners are conjuring a legal fiction — House Republicans’ amicus brief insists that because parties pool money from many contributors, that “significantly dilutes the potential for any particular donor to exercise a corrupting influence over any particular candidate” who ultimately benefits from their cash. In essence, they’re asking justices to believe a bank CEO’s donation to a political party coordinating with a lawmaker’s campaign can in no way influence how that lawmaker drafts banking legislation. 

A robust argument for preserving the existing restrictions is certainly possible — but the defense side of the case has already been thrown into chaos. After Donald Trump was sworn in, his solicitor general ended the Justice Department’s support of the current law and joined with the plaintiffs attacking it. The Supreme Court then assigned the defense to a conservative lawyer who served as Chief Justice Roberts’ clerk when he engineered the original Citizens United ruling. This same conservative attorney charged with defending the last remaining campaign finance statutes recently pressed justices to limit the scope of federal anti-bribery laws, which are now also in the legal crosshairs.

‘Our Concern Is Not With Tawdry Tales of Ferraris’

In a concurrent case unfolding amid Washington’s bacchanal of self-enrichment scandals, Cincinnati’s former Democratic city councilman P.G. Sittenfeld is asking the Supreme Court to overturn his bribery conviction after an FBI sting caught him accepting a $20,000 campaign contribution in exchange for supporting a local development project.

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Notably, Sittenfeld has already been elected officials. 

Those circumstances and all that legal firepower make clear that this is less about one shady municipal deal and more about broadening a string of rulings making it increasingly impossible to prosecute public corruption cases. 

That decade-long line of jurisprudence has seen the Supreme Court overturn bribery convictions of former Virginia Gov. Bob McDonnell, aides to then-New Jersey Gov. Chris Christie, and associates of former New York Gov. Andrew Cuomo, narrowing the definition of what an “official act” in a quid pro quo situation is. Building off that, the court then declared that a public official reaping a payment from the recipient of government contracts is not engaging in illegal bribery, but is merely accepting a legal “gratuity.” 

Taken together, the story is as sordid as it seems: As some justices were gifts from billionaires, they were using these cases to rule that the real problem in American politics is not egregious corruption, but instead overly stringent anti-corruption laws. 

“Our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” wrote Chief Justice Roberts when he tossed McDonnell’s conviction. “It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.”

“You can buy influence all you want,” former Trump-appointed U.S. Attorney David Devillers told us when asked to summarize the effect of these rulings. “You can buy someone a yacht but if there’s no quid pro quo tied to it, there’s no official act tied to it, then it’s not a federal crime.” 

This might explain why law enforcement officials declined to charge Trump’s prospective border czar Tom Homan when the FBI echoed by Vance. 

As Trump now dismantles the Justice Department unit that prosecutes public corruption, Sittenfeld’s appeal aims to take the Supreme Court’s legal assault on anti-bribery laws even farther. In legal briefs, his lawyers are offering a novel theory: They insinuate that pay-to-play culture is now so pervasive that it should no longer be considered prosecutable.

Citing Trump reportedly asking oil executives for petition laments that a “prosecutor could doubtless present this meeting alone as at least ambiguous evidence of a quid pro quo.” The petition then asserts that if Sittenfeld’s conviction is allowed to stand, “politicians are open to prosecution if they say anything during these often informal, unscripted conversations that can be read to even hint at a possible quid pro quo.”

In past eras, the Supreme Court might be expected to evaluate the merits of the Vance and Sittenfeld cases, and issue narrow rulings honoring past precedents. But in the Roberts Court era, judicial respect for so-called stare decisis has often been jettisoned on campaign finance matters.

Consider the tactics of the backers of Citizens United: They manufactured a fight with federal officials over the classification of a little-noticed documentary film not so much because they cared about the movie, but because they saw a chance to elicit a corruption-legalizing scheme they knew Congress would never legislate. Indeed, the case was meticulously engineered to give the newly conservative court the opportunity not merely to arbitrate the minor dispute, but to instead ignore stare decisis and “go big,” as one of the case’s architects told us.

It’s the same dynamic today: Conservative groups behind today’s two new cases undoubtedly hope that their spats over the esoterica of campaign finance and bribery law prompt the even-more-conservative court to not merely mediate these specific conflicts, but to instead issue broad rulings incinerating any remaining deterrents to pay-to-play corruption.

States Can Stop Pretending Corporations Are People

And yet if plaintiffs get their way in these cases, all is not lost. 

Yes, in buying elections, packing the courts, and eliciting precedents legalizing corruption, the master planners have created the democracy crisis, pushing America one step closer to the kleptocratic death spiral of history’s collapsing empires. 

But no, that freefall is not yet inevitable — before we hurtle over the precipice, there are still a few off ramps.

One of them is a constitutional amendment to overturn Citizens United that would stop equating money with First Amendment-protected speech and allow our communities to restrict the flow of cash into politics. This may seem unrealistic because of the high threshold for ratification, but a reintroduced in Congress.

Shorter term, another off-ramp runs through Montana. Thirteen years after the Supreme Court both parties are now spearheading a ballot initiative circumventing Citizens United jurisprudence and instead focusing on changing state incorporation laws that the high court rarely meddles with.

The measure’s proponents note that Citizens United is predicated on state laws giving corporations the same powers as actual human beings, including the power to spend on politics. But they point out that in past eras, state laws granted corporations more limited powers — and states never relinquished their authority to redefine what corporations can and cannot do. The Montana initiative proposes to simply use that authority to change the law — in this case, to no longer grant corporations the power to spend on elections. 

If passed in Montana — and if other states follow — the initiative could profoundly change American politics. Corporations could still conduct all their normal business, but they would no longer have the power to buy elections or legislation. What’s more, state laws’ existing anti-circumvention provisions — which were recently upheld by the Supreme Court — would deny those powers to out-of-state businesses, too. Though wealthy people would still retain their right to individually spend on politics, the new corporate codes would eliminate dark money groups, forcing oligarchs to emerge from anonymity and do their election spending through political committees requiring full disclosure. 

To be sure, that still leaves the problem of billionaires using their outsized wealth to finance ad campaigns, demonize their opponents, amplify their puppets, and effectively control the election discourse. But here too the post-Citizens United world still permits a local solution: publicly financed campaigns that provide candidates with at least enough resources to make their voices heard.

In declared “we do not today call into question the wisdom of public financing as a means of funding political candidacy.”

These systems are no panacea — they still let self-financed billionaire candidates and super PACs outspend publicly funded candidates. But for a relatively small investment of public money, more states and cities can create their own public financing systems that provide grassroots candidates enough resources to run competitive campaigns without having to succumb to legalized corruption and sell their future actions to prospective campaign contributors. 

‘The Country Will Still Be in Deep Trouble’

In a healthy republic, these straightforward initiatives would be on a glidepath. But at this dark hour for democracy, they face the daunting task of overcoming powerful interests profiting off the current system. They also face the formidable challenge of breaking through all the noise and convincing the country that corruption isn’t an academic issue or a low-level concern — it is the crisis creating every other problem.  

“Corruption is why they just defunded nursing homes to cut taxes for the rich,” Georgia’s Democratic Sen. John Ossoff recently said. “Corruption is why you pay a fortune for prescriptions. Corruption is why your insurance claims keep getting denied. Corruption is why hedge funds get to buy up all the houses in your neighborhood driving you out of the market and then your corporate landlord ignores your calls during a gas leak. Corruption is why that ambulance cost $3,000 after you just had to get your choking toddler to the hospital.” 

Of course, it is comforting to think we can just sit back and passively wait for this corruption nightmare to pass when the Trump presidency ends or if party control of Washington changes. That promise will likely be Democrats’ message in 2026 and 2028. 

But conservatives, their oligarch benefactors, and the Supreme Court clearly have a master plan to try to lock in the kleptocratic status quo. 

They know that in a functioning one-person-one-vote democracy, they could never pass the unpopular self-enriching policies they want — and so they know they must focus on preserving and expanding the precedents that permit them to buy American democracy.

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They can still be stopped — but only if we finally make anti-corruption the central focus of our politics.

The Lever’s David Sirota and Jared Jacang Maher are the authors of Master Plan: The Hidden Plot to Legalize Corruption in America.