Friday, January 22, 2010

Supreme Sellout

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By Paul Campos

The Supreme Court's decision to roll back campaign-finance reform does more than just open the spigots for corporate cash. It also exposes the judicial activism of the Roberts Court.

On Thursday, the Supreme Court voted 5-4 in Citizens United v. Federal Election Commission to overturn decades-old restrictions on campaign-finance reform. The majority’s bludgeoning of what were already pitifully weak restraints on corporate campaign spending is a kind of jurisprudential equivalent to clubbing a baby seal: a revolting spectacle that might make even a sadist or a K Street lawyer blanch. The animating principle that underlies the majority’s argument is clear: We must do what we can to ensure that corporate America shall have a new birth of freedom–and that government of the wealthy, by the wealthy, for the wealthy, shall not perish from the earth.

It’s hardly surprising that [Scalia] can find no explicit opposition in 18th century American political debates to an idea that didn’t occur to anyone until 150 years later.

Three aspects of the decision are particularly noteworthy. First, Chief Justice John Roberts, who was praised to the skies at the time of his confirmation hearings for his supposedly “minimalist” approach to judging, goes out of his way to demolish several decades worth of congressional work to do something about the corrupting influence of money on politics.

He does so by taking two totally unnecessary steps. For one thing, the law at issue could easily have been interpreted to simply not apply to the facts of this case. (The case involves the distribution of a feature-length film via video on demand, which quite arguably is not an “electioneering communication” covered by the federal statute the court struck down). It’s a well-established rule of statutory interpretation that when a court is faced with two plausible readings of a federal statute, one of which would require something as drastic as finding the statute unconstitutional, and the other which avoids that outcome, the justices ought to prefer the latter. Indeed, that rule is a central tenet of anything that deserves to be called “minimalist” judging.

Secondly, even after the Court chose to interpret the statute in the former fashion, Roberts and the rest of the majority could have held that the statute was not unconstitutional on its face, but merely as applied to the facts in this particular situation. Avoiding rulings that declare federal laws unconstitutional on their face rather than as applied is also a fundamental principle of minimalism.

Curiously, Roberts’ aversion to maximalist interpretations of First Amendment rights seems to fade away when the victims of government “censorship,” as he calls it, are major corporations rather than individual human beings.

Justice Antonin Scalia’s concurrence provides an even more morbidly amusing exercise in judicial gymnastics. After all, one would think a genuine commitment to applying the original meaning of the Constitution to contemporary cases poses a serious problem to someone who wants to find that the document forbids Congress from banning direct campaign contributions by corporations.

It’s difficult to express how bizarre the framers of the Constitution would have considered such a proposition. Indeed, prior to the middle of the 20th century, the idea that artificial “persons” such as corporations could have constitutional rights was unknown in American law. Scalia is reduced to arguing that he can find no historical evidence that the framers were opposed to the idea of granting free-speech rights to corporations. It’s quite true there is no such evidence. It’s also true there’s no evidence that the framers opposed escalating the Vietnam War, deregulating the airline industry, or breaking up the Beatles.

In other words, it’s hardly surprising that he can find no explicit opposition in 18th-century American political debates to an idea that didn’t occur to anyone until 150 years later.

Finally, Justice Kennedy’s majority opinion is long on what Justice John Paul Stevens’ dissent accurately labels “glittering generalities.” But it is short on any explanation as to how those generalities–such as that speech cannot be regulated on the basis of the identity of the speaker–can be squared with holdings such as Kennedy’s recent vote to allow a school to suspend a student who unfurled a banner advocating “BONG HiTS 4 JESUS.” (The only basis for not considering this unconstitutional censorship is that certain kinds of people, namely students at school events, have fewer free-speech rights than, say, an ordinary citizen in a public park).

All this adds up to yet another example, as if one were needed, that conservative complaints about “judicial activism” are usually nothing more than a code for “judicial outcomes conservatives don’t like.” Citizens United strikes down a major federal statute by taking the extreme step of explicitly overturning the Court’s own precedents, while dismissing a century’s worth of congressional attempts to stop special interests from buying legislation. The argument that the relevant legal materials required the Court to take such a step is flatly incredible. In short, the decision is as pure an example of judicial activism as one could hope to find.

As a consequence, we are left in a situation where Congress can do little more to quell the corrupting influence of money on politics than forbid the explicit bribing of elected officials. Such a triumph of laissez-faire ideology gives a whole new meaning to the phrase “the marketplace of ideas.”

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