The Supreme Court Fails A Nation


In 1854, Abraham Lincoln made one of history’s greatest speeches in Peoria, Illinois. Taking the national stage by decrying Stephen Douglas’ repeal of the Missouri Compromise, Lincoln demanded, as Lewis Lehrman has written, “the nation get right with the Declaration of Independence.”

The Peoria address’ turned on what Lincoln deemed “our ancient faith” that just government depends, foundationally, on the consent of the governed. “Allow all the governed,” Lincoln declared, “an equal voice in the government, and that, and that only, is self government.” We believe this so profoundly it is etched on one of the gallery walls at the Lincoln memorial – our national temple of democracy.

Few spectacles could more profoundly debase Lincoln’s sense of the meaning of America than the recent parade of presidential hopefuls seeking audience, in supplication, before a growing list of billionaire funders.

The Koch brothers announced that a billion dollars is up for grabs in 2016 for the candidate who most pleases them. Casino operator Sheldon Adelson, who reportedly coughed up $100 million in 2012, allowed tribute to be paid, and sought, in April in his Venetian Hotel in Las Vegas. Republican candidates appeared with bells on.

Hedge Fund magnate Robert Mercer announced he’ll sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of mega-rich investment manager Foster Friess. Florida billionaire Norman Braham will provide at least ten million for Marco Rubio. Jeb Bush’s new Super PAC, Right to Rise, will secure $100 million of individual and corporate contributions before the end of May.

Democrats are no better.

Hillary Clinton quickly followed her announcement that curing the evils of money and politics will be a core component of her campaign by traveling to California to seek massive contributions for the Priorities USA Super PAC. She’s confident we’ve forgotten the Lincoln bedroom leases and the overtly purchased attentions (and pardons) of her husband’s administration. A psychologist could spend a lifetime exploring whether cynicism, hypocrisy or hubris predominates in such a candidacy.

The Washington Post described the unfolding primary as “a brawl of billionaires.” The elites of the super donor class shield and secure their own, apparently essential, primary. The Center for Responsive Politics reminds that, in 2012, about a hundred people and their spouses contributed 67% of all Super PAC funding. The one percent of the one percent of the one percent.

Coal baron Mark Hanna said, famously, there are two important things in politics: “The first is money and I can’t remember what the second is.” We’ve moved beyond Hanna’s most buoyant fantasies.

This national shaming is made possible, even inevitable, by rulings of the United States Supreme Court. In decisions dating back to 1976, our high court has, as a matter of constitutional compulsion, equated money and speech, outlawed expenditure limits, afforded astonishing protection to corporate spending, and downplayed dangers of corruption obvious to everyone else in the land.

Even still, the Court has needed two additional absurdities to complete the ascendancy of wealth over politics. First, there is the fiction that “independent” expenditures, as opposed to direct campaign contributions, present no danger of influence. As Justice Anthony Kennedy repeatedly writes: “the absence of prearrangement and coordination of expenditures eliminates the risk of improper influence on or commitments by a candidate.”

In other words, if Sheldon Adelman contributed $5 directly to Newt Gingrich’s 2012 campaign, concern over possible corruption is warranted. But spending $20 million on Gingrich’s behalf triggers no worry. No person ever involved in electoral politics believes that.

Second, the Court has consistently ruled that concern for equality of participation has no role in campaign regulation. Limiting the amount of money some can spend to leave others an enhanced chance of access “is wholly foreign to the First Amendment.”    

If Lincoln thought that “allowing all an equal voice in the government” was the key to the American experiment, for the United States Supreme Court, equality is the value that cannot be mentioned. If presidential candidates are reduced to playing mascot for billionaires, so be it. Thus are the wages of cash register politics. Still, we are Americans. Lincoln was unalterably right. Five or so members of this Court, having spent the entirety of their lives in service to the economically privileged, are unalterably wrong. I’m guessing even they know it.

We’re not without weapons. Jurisdiction can be curtailed. New justices can be added to the court. Judges can be impeached for attempting to destroy the American democracy.  Tom Paine wouldn’t put up with this.

Gene Nichol is Boyd Tinsley Distinguished Professor of law and director of the Center on Poverty, Work and Opportunity at the University of North Carolina and President Emeritus of College of William & Mary.

From The Progressive Populist, June 15, 2015

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