Beyond the various points of disagreement between Chief Justice Roberts’ plurality opinion and Justice Breyer’s dissent in McCutcheon, there is one striking, overall contrast to be drawn. Roberts makes a clear case against the aggregate contribution limits but, as Justice Thomas suggests, he may be less straightforward in revealing his doctrinal ambitions.  Breyer’s jurisprudential orientation is no mystery, but his defense of it, in the particulars, is a puzzle.

Does Roberts really mean to uphold and faithfully apply Buckley v. Valeo, or does he subvert it with a narrow reading?   Whatever his actual intent, the construction of his argument is easy to follow.  Not so Justice Breyer, who argues with undoubted sincerity for an expansive view of Buckley, one that yields considerable ground to regulation, and yet he fails to give much definition to its application.

The trouble begins with Breyer’s quarrel with the plurality over the character of  the “corruption” sufficient to support government regulation.  Breyer embraces multiple meanings, few of which are pinned down.  One of them tracks the conception of “active liberty” he has written and lectured about.  Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005).  It is a blurry theory of democracy that would give the government power to regulate individual or group speech to assure the “collective speech” necessary to translate public opinion into political action.  McCutcheon v. Fed. Election Comm’n, No. 12-536, slip op. at 6-7 (2014) (Breyer, J., dissenting).  Then there is his wish to protect the soft version of corruption-as-bribery: undue influence exerted by donors who purchase attention and access, but not official action.  Id. at 8-9.  Added to this is a dash of a political equality rationale (“When enough money calls the tune, the general public will not be heard”), and even a hint of “dependence corruption” (the plurality “fails to recognize the difference between influence resting on public opinion and influence brought by money alone”).  Id. at 6, 30.  In the middle of this, actual quid quo corruption—bribery or vote-buying—surfaces briefly, only so that Breyer can show that, on the evidence previously presented to the Court, none has been found.  Id. at 10.

So Roberts would put all of his weight on actual quid pro quo corruption, Breyer almost none.  The Chief wants to be very concrete; Justice Breyer does not.

This indefiniteness carries over into Justice Breyer’s argument about the likely consequences of eliminating the aggregate limits.  He and the Chief spar about the protections under current law against circumvention of the base limits.  Through a series of highly elaborated examples, Breyer attempts to show how those buying influence would get around the legal limits without the constraints of the aggregate cap.  Breyer concedes the complexity of his presentations  but insists that the “conclusion is simple.” Id. at 28.  After all that, he then throws the entire presentation into doubt by asserting that any circumvention activity would be “more subtle and more complex than our stylized [examples] depict,” too easily slipping beyond the grasp of regulators. Id. at 26.   Why, then, the examples—why bother?

More of the same runs through the Justice’s arguments about the need for an evidentiary record. He feels strongly enough about it to add an Appendix A with record evidence drawn from other cases.  Much consists of first-hand impressions from current and former officeholders who offer their personal views of the role of money. The Justice also cites a case like Nixon v. Shrink Missouri Government PAC, which relied largely on evidence in the form of one officeholder affidavit attesting to the “the real potential [of large contributions] to buy votes” and “newspaper accounts of large contributions supporting inferences of impropriety.”  Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 393 (2000).

Such is the quality of evidence that, Justice Breyer argues, would have been needed to inform the Court’s decision.  And he tries to extract a great deal from “facts,” as he emphasizes the need to answer “factual questions about whether corruption … is a realistic threat to our democracy.” Id. at 30.  Which evidentiary inquiry would do that, somehow glossing over as questions of “fact” deep disagreements in principle or theory about what counts as a “threat to our democracy”?

Chief Justice Roberts and his colleagues in the plurality may have a plan, a vision of the future, they will not own up to.  But in tightening up the scope of Buckley and limiting the government’s regulatory reach, they are drawing a fairly clear picture of doctrine as it stands after McCutcheon. Justice Breyer has a goal that all can see.  Missing from his dissent is a clearly articulated, workable way to get him there.