High Court Hypocrisy

Original Link: http://www.newsweek.com/id/232147

By Jonathan Alter

The year 2010 is already a nightmare for progressives, and it's only January. In one week alone, the health-care bill derailed, the liberal radio network Air America went silent, and the Supreme Court ruled that the First Amendment allows corporations to pump as much money as they want into political campaigns. I've got no answers on the first two, but a few suggestions for avoiding despair on the third, the most serious threat to American democracy in a generation.

In a devastating decision, the high court cleared the way for one of those corporate takeovers you read about, only much bigger. If Exxon wants to spend $1 million (a bar tab for Big Oil) defeating an environmentalist running for city council, it can now do so. If Goldman Sachs wants to pay the entire cost of every congressional campaign in the U.S., the law of the land now allows it. The decision frees unions, too, but they already spend about as much as they can on politics. Fortune 100 firms currently spend only a fraction of 1 percent of their $605 billion in annual profits on buying politicians.

This didn't have to happen. The court was asked to rule on whether the Federal Election Commission had the right to regulate a corporate-backed outfit called Citizens United that made the conservative film Hillary: The Movie. But instead of ruling narrowly, the Roberts Court—in a new standard for judicial hypocrisy—struck down the laws of 22 states and the federal government.

So it's on. The Citizens United case is the Roe v. Wade of the 21st century, only the roles are reversed. Conservatives who bashed liberal judges for "legislating from the bench" and disrespecting precedent are now exposed as unprincipled poseurs. Liberals who grew up depending on courts to protect the public interest must now build a mass movement to confront the greatest accumulation of corporate power since the age of the robber barons.

At his confirmation hearings, John Roberts said, "Judges are like umpires. Umpires don't make the rules; they apply them." He repeated his belief in judicial restraint and the importance of precedent. So what did his court do? It gutted more than a century of law that barred direct corporate expenditures on behalf of politicians. And it slam-dunked GOP stalwarts like Teddy Roosevelt, Robert Taft (his 1947 Taft-Hartley Act limited outside campaign expenditures), and, yes, John McCain. The key to the 5–4 majority finding that corporations have all the rights of people: Samuel Alito, the hardliner who replaced Sandra Day O'Connor.

In his dissent, John Paul Stevens wrote that corporations "are not members of our society. They cannot vote or run for office." If corporations can't vote, he argued, why should they crowd out those who do? In oral arguments, Ruth Bader Ginsburg, another dissenter, asked if foreign companies should have the same free-speech rights as domestic ones, since foreign individuals are allowed to make a speech here. The majority had no answer, and opened the door to a Chinese bank or Russian oligarch buying Congress.

What's the remedy? A constitutional amendment is tempting, but tampering with the First Amendment is a bad idea. The best option is Sen. Dick Durbin's ingenious campaign-reform bill. The idea, which already works well in New York City and other localities, is to set up a public-financing system that rewards candidates who attract small donors. House candidates, for example, who raise at least $50,000 in donations of $100 or less would be eligible for $900,000 in public money. The president must move the bill to the center of his agenda and mobilize his 13 million 2008 contributors to pressure Congress to enact it.

New laws regulating corporate governance are also essential. Britain requires shareholders to vote on corporate political expenditures. We should do the same, and adopt Arlen Specter's bill banning political contributions from corporations that contract with the government.

As of last week, the latter is probably unconstitutional. Until one of these hypocrites retires, we can't expect the judiciary to protect average citizens from the power of big money. "I hope we shall crush in its birth the aristocracy of our moneyed corporations," Thomas Jefferson wrote, in a line that Antonin Scalia and others who claim to be guided by the Founders ignore. Jefferson was too hard on corporations, which create wealth and employ people (though the vast majority work for small businesses). But for 100 years, the Supreme Court ruled that our Constitution permitted restraints on concentrated power. Today's Roberts Court Radicals don't believe in restraint, especially when it comes to themselves.