Justice Stephen Breyer was joined in his blistering dissent by Justices Ginsburg, Sotomayor, and Kagan. There is nothing naive about this opinion of the minority. They charged that the majority's “conclusion rests upon its own, not a record-based, view of the facts.”
Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.Taken together with Citizens United, Breyer writes that McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve."
Breyer then cites this court's 2003 decision in McConnell v. FEC that money — and the access it purchases — has a pernicious influence on the political process. In the record from that District Court case was documented evidence that enormous soft money contributions, ranging from $1 million to $5 million, enabled wealthy donors to gain access to federal lawmakers and the ability to influence legislation.
Breyer further points out that the majority in McCutcheon reaches:
" . . . a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform."So, no, these four liberal justices do not fail to understand the problem. They just need one more justice to agree with them, and we would have a very different outcome -- on this and many important cases. How can we get that vote? On issues of gay rights, we have it in Justice Kennedy. But we need to elect another Democratic president in 2016 and keep control of the Senate in 2014.