Thursday, April 3, 2014

Our bought-and-paid-for Court

On Wednesday the U.S. Supreme Court struck down many campaign contribution limits in its ruling on McCutcheon v. Federal Election Commission. The so-called conservatives carried the day. As with many "conservative" decisions, the result is the very opposite of "conservative" in its true sense.

The majority's argument is that the First Amendment presented an insuperable obstacle to the laws that kept Shaun McCutcheon from donating as much as he wanted to election campaigns. Speech, in the form of money, simply can't be denied.

If you buy the premise of the majority's argument, that money is speech, it's nearly impossible to argue with it. Nor need the argument stop there: in his concurrence, Justice Thomas openly called any contribution limits unconstitutional. None of the other Justices signed on to his concurrence, but I doubt the other conservatives refuse to countenance the idea.

Yet most of us instinctively reject the majority's reasoning. And while I'm usually suspicious of the so-called wisdom of the masses, this time I think we're on to something, something the Court deliberately ignored and hoped we wouldn't notice.

You don't need to be a political scholar or historian to know that money corrupts governments. Unscrupulous politicians already can peddle themselves to the highest bidder so brazenly that it gets the attention of the F.B.I. (California is reeling from a messy corruption scandal right now), and that's with the remnants of some anticorruption laws on the books. How much worse will things get now that many of those laws have been rendered facially invalid under McCutcheon?

The corrupting influence of money was but one evil contemplated by the founding generation. They designed the Constitution and the Bill of Rights to make government less susceptible to those evils. That overarching purpose is what the McCutcheon majority ignores.

Why did James Madison, and the Congress of 1789 that ratified most of his Bill of Rights, think freedom of speech was so important? Clearly, they wanted more speech, more debate, more argument, more commerce in the marketplace of ideas — all so as to educate and to enlighten the electorate as much as possible. Today, we unquestioningly accept that a vigorous exchange of viewpoints is the only way to secure good government.

It's that second part, about securing good government, that the First Amendment absolutists, along with those who want us to equate money with speech, would have us forget. (I notice you aren't bleating about originalism and the Founders in this context, Nino.) The First Amendment isn't valuable for its own sake. Rather, the First Amendment, like all the other elements of the Constitution, is a rule that exists to serve the underlying goal of the whole project: good government.

The Constitution exists to secure good government. That is the unwritten standard against which every innovation of governance must be judged.

And the definitely novel idea that "money is speech" is completely at odds with good governance.

We all instinctively understand that neither yelling nor incessantly repeating something makes it a better idea. To the extent that money is used to amplify one voice and to drown out others, money prevents the marketplace of ideas from being useful. By the same reasoning, to the extent that money allows one candidate to monopolize the avenues of communication with the electorate, making it difficult for other candidates and opinions to find an audience, money doesn't serve the primary good of securing good government.

(Money also corrupts politicians after they've been elected. That, too, makes good government impossible.)

So money is not (always) speech: that's too simplistic a principle. Yet without that principle, the McCutcheon decision (and Citizens United) cannot stand.

But of course, these decisions do stand. They will stand unless we undertake the arduous project of amending our Constitution to disavow the pernicious idea at their heart, that money is speech. An amendment is not just the least difficult solution, it's the only solution.

What about the Court, or rather, the majority in this and Citizens United and the other decisions stating the principle that money is speech? Does the Court have any responsibility to keep our government from disappearing beneath a fetid cesspool of big money wielded by a handful of very big contending interests?

The Court sees its role as deciding whether the nation's laws are consistent with the Constitution. The argument could therefore be made that the unwritten standard of securing good government, being literally not written into the Constitution, is and must always be beyond the Court's consideration. One could further (and justly) argue that it would be the height of folly to allow nine unelected judges to decide what is good government.

Yet what are we to make of an institution that purports to safeguard our Constitutional rights, but fatally weakens the government that exists to give those rights meaning?

The Court occasionally resorts to "common sense" to justify its conclusions. I haven't read McCutcheon yet, but I confidently predict that "common sense" is not mentioned. The decision is anything but sensible. It has handed our elections over to the highest bidders, and the majority knows that. (So does the minority, to be sure.)

Perhaps the sale of elections doesn't trouble the majority because those blindly partisan Justices long ago prostituted themselves to Big Money. That, at least, is the simplest explanation for their outrageous betrayal of our political system.

[EDIT: corrected McCutcheon's first name, from "Shane" to "Shaun"]

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