Justice Roberts’ Big Test (Guest Voice)
WASHINGTON — President Obama’s health care speech on Wednesday will be only the second most consequential political moment of the week.
Judged by the standard of an event’s potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.
This sounds melodramatic. It’s not. The court is considering eviscerating laws that have been on the books since, in one case, 1907 and in the other, 1947 banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.
The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word “radical” does not capture the extent to which the justices could turn our political system upside down. Will it use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?
Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.
Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday’s big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns.
I don’t have the space to cite all the precedents the court would have to set aside, going back to the Buckley campaign finance ruling 1976, if it threw out the prohibition on corporate money. Suffice it to say that there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.
“I do think that it is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.”
This careful jurist continued: “And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.”
He learnedly cited Alexander Hamilton who wrote in Federalist 78: “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.”
Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings.
If he uses his own standards, it is impossible to see how he can justify the use of “arbitrary discretion” to discard a well-established system whose construction began with the Tillman Act of 1907.
Were the courts that set the earlier precedents “legitimate”? This ban was upheld over many years by justices of a variety of philosophical leanings. We are not talking about overturning a single decision by a bunch of activists in robes seizing a temporary court majority.
Are the precedents “workable”? The answer is clearly yes, which is why there is absolutely no popular demand to let corporate cash loose into our politics. Our system would be less “workable” if the court abruptly changed the law.
Has the precedent been “eroded”? Absolutely not. In case after case, no matter where particular court majorities stood on particular campaign finance provisions, the ban on corporate contributions was taken for granted. As the court stated just six years ago, Congress’ power to prohibit direct corporate and union contributions “has been firmly embedded in our law.” That’s what you call “settled expectations.”
This case is the clearest test Justice Roberts has faced so far as to whether he meant what he said to Congress in 2005. I truly hope he passes it.
If he doesn’t, he will unleash havoc in our political system and greatly undermine the legitimacy of the court he leads.
This column is copyrighted and licensed to run on TMV in full. (c) 2009, Washington Post Writers Group.
EDITOR’s NOTE: Due to a technical glitch, when this column by EJ Dionne, Jr. first went up on the site, it went up under my byline and not under the byline that had been inserted. It was fixed within one minute. We regret the site’s hiccup. JG
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15 Responses to “Justice Roberts’ Big Test (Guest Voice)”
This is what I was trying to say in the comments of the the Joe Windish post below. I have very little doubt that Roberts will come down on the side of corporate interests – he has never failed to in the past.
The United States was founded for the citizens of the United States, not corporations.
If we allow direct spending by corporations in federal elections, would foreign corporations with big operations in the US (i.e. Toyota, Deutsche Bank, Allianz, etc.) be able to donate to campaigns and why would we want some company in China (or where ever) be able to influence an election meant for the citizens of the US?
Everyone is getting rather worked up over 'what if' scenarios on a ruling that hasn't happened.
Also it seems the that overturning precedence is either an act of judicial “arbitrary discretion” or judicial “bravery” depending mainly on your politics, not knowledge of Constitutional law.
Otherwise, of course, everyone would be against Brown v. Board of Education, Roe V. Wade, et. al., and there would be no talk whatsoever about the concept of a “living Constitution” judicial philosophy.
That is obviously not the case. (pardon the pun)
Of course the same could be said for corporate personhood and the interstate highway system not to mention our large standing army with bases all over the world lets not forget the fed either.
While I think overturning the precedents in this case would be a bad move, I also understand the larger question which some – particularly opponents of McCain Feingold – have been asking. Are there and should there be any limits on political speech? And whether we like it or not, political speech is not the same as in the days of the founders when a soap box in the public square and a loud voice were about the best you could manage, short of owning a printing press. Today political speech is money. Those who have it “speak louder” than those who don't. Should a rich individual have a louder voice than a poor person? Perhaps not, and thus the current campaign contributions limitations. Should corporations be able to “speak” at all in politics? And if not… why not? They are, after all, composed of people and are affected by the actions of the government like everyone else? Of course, they already speak louder than any individual citizen in the form of lobbyists, but that's yet another problem for another thread.
The wealthy already have plenty of loopholes where their deep pockets allow them to speak more loudly than somebody living on minimum wage. But when you place restrictions on any of it, you're engaging in a delicate dance around who can and can't have a voice in the debate.
I suspect that there's a very good chance Roberts will rule in favor of the corporations. He has done so pretty much down the line and been a big disappointment as a SCOTUS justice to me. Then again, those nine people never fail to surprise me when I least expect it.
I think you have it right. That is a dangerous dance that I personally in the current framework of the scenario fall on the side of stifling that speech. You frame it more correctly though which has actually made me start to ponder more how do we separate the money from political speech to level the playing field for all so everyone can speak. Problem is that is the last thing the corporations would want to do. Whether or not they or anyone likes it I can't think of anything more fair for everyone involved. I also think its moral but I equate moral with libertarian type democracies. In that same vein I think its a pretty good question what would be a way to separate those components for the benefit of the entire society at large without having to infringe on anyones rights.
Maybe getting rid of handing out contracts and if it needs a job done making it itself but allowing private industry to buy the rights of any discoveries(at market prices not at a $1 and a handshake) to explore or sell on the retail market. That in itself would calm things down in a huge way in this country.
Maybe another thing that could be done is once mobile internet handhelds become commonplace make a forum where politics was discussed and viewed. Then make it socially unacceptable to discuss it or bring it up in anyway outside of that forum. I know that sounds crazy but for the longest time in this country we had a respectful habit of never discussing politics or religion. We have gotten far away from that in the public sphere and I think that is very dangerous to our nation in general, now politics is ubiquitous. I think it will not happen though until we get tired of being pissed off at half the people we know or we figure out that talking politics sometimes repels people. I think the internet is the answer due to access to debunking places and all sorts of media and information. I just don't know what will(if it ever happens) be the catalyst nor the method to make it a reality. Does anyone else know of a good way to separate the two?
“Should corporations be able to “speak” at all in politics? And if not… why not?”
No. The purpose of the corporation is to make profit. Some large companies actually make more money than many small nations. The primary responsibility of corporations is to their stockholders, not their employees. If corporations did place employees and their well-being above their shareholders' interests (and it's the shareholders, the owners who decide the direction of the company) then no company would lay off employees to maximize shareholder gain.
The US government's responsibility is to protect the citizens of the US, not ensure corporations make profits which are distributed to shareholders, many of which are in other countries or are even sovereign wealth funds controlled by other governments.
I also believe corporations should have the ability to encourage their employees to become politically involved with respect to legislation the corporation feels is important.
I could go on and start talking about lobbyists, but as you rightfully pointed out Jazz, that's another topic for another thread.
Blame whatever political party you want, but deregulation is a perfect example. Corporations are all for deregulation to maximize profits, yet when deregulation contributed to the current economic crisis it was people who lost their jobs and homes while many corporations were “rescued” by the government. The people who benefited the most from the deregulation are still in power while they laid off tens of thousands of employees. Have you ever heard of a “homeless corporation”? A corporation is pretty powerful if it can stand on the street corner and ask for government handouts and survive, when it should be in bankruptcy, selling off assets to better-run corporations.
Many corporations are powerful entities which exert tremendous control over their employees' well-being. The US government should protect it's citizens from powerful entities, whether it's another government or a corporation which places profits ahead of people.
Just to be clear: I am not anti-corporation. I think corporations are essential to the well-being of this country and corporations provide the livelihood for tens of millions of people. Some corporations also do a better job at walking the fine line between shareholder interests and employee well-being. I also believe that corporations should largely be left to do their own thing, but there are some regulations in some industries that are essential to ensure that employees and/or customers are not unfairly taken advantage of or pay for a corporation's mistakes.
At any rate I feel strongly that corporations' role in all campaigns (whether for candidates or legislation) should be limited and should not be direct.
AR, you're right and good point about the “arbitrary discretion” or judicial “bravery” depending on your politics. And let's not forget “judicial activism”.
We have a Corporate Republic, why shouldn't the Supreme Court defend Corporate rights?
If the court regulates political free speech on a Constitutional basis on a Constitutional basis you should also apply the same standard to McCain Feingold, The Tilman Act, The Federal Corrupt Practices Act, The Federal Election Campaign Act, The Hatch Act, The Naval Appropriations Bill of 1867, The Civil Service Reform Act, The Smith-Connally Act, The Espionage Act of 1917, and the Sedition Act of 1918.
Anything less is hypocritical.
If corporate entities are denied the right of political speech, will that include unions, non-profits, and NGOs? Because all the complaints made about political spending by Fortune 500 companies apply equally to these other corporate interests.
It seems to me you have to one of two things to have a level playing field. Either you allow anyone, including corporate entities, to say what they want, and spend what they want; OR you limit campaign spending to only those people eligible to vote on that issue or for that specific candidate. That would cut out all the corporate contributions. It would also eliminate the flow of money from big donors from out of the state or other political area for which the election is being held. One way allows anyone to freely express their political views, the other allows people to give money only to campaigns they are eligible to vote for, effectively limiting campaign contributions. Both approaches have some positive aspects, both have some negative aspects.
On the upside, if these laws are eviscerated, populist politicians will be able to run against the Senator from ExxonMobil (or which ever Corporation has funded the campaign of said Senator). it will clarify things…
Austin Roth, too many people actually worship the “living Constitution” lie and psychotically defend activist rulings like Roe or another example I've given before, Baker v. Carr. (Why not fully consistent and eliminate all district- and other area-based representative bodies, including the US Senate?)
In addition to the routine contempt for law and rule of law that the activism fans possess and exhibit, they simply want what they want, NOW! as little kids, including the elimination of constitutional free speech they don't happen to like, and also dislike because it involves more money than they have to spend.
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I think only citizens should contribute to political campaigns.