Sunday, April 6, 2014

The hidden Achilles' heel in the Supreme Court's McCutcheon ruling

The one thing we can say for sure about the Roberts court is that they love them some money. For the Radical Right majority on the current court, the purpose of the Constitution was to create a commercial republic operated by a Board of Directors with as little input as possible from the rabble whose sole function was to do the work needed to keep the wealth flowing to the investor class.

Thus, when Arizona tried to provide matching public funds so that political candidates were not bought and sold like tires and six packs of beer, the court struck down the public funding — because, to the Roberts court, anything that reduces the influence of money is necessarily evil. However, the twisted logic used to justify striking down laws giving increased public funding to candidates who face a wealthy opponent who is self financing the campaign without public funds is that the public funding would somehow "chill" the speech of the self financing millionaire or billionaire. That "logic" was that the poor billionaire or millionaire trying to buy a seat would not be able to keep up with public funding.

Now, however, that the court has all but done away with any form of campaign bribery limitations — throwing open the door for unlimited contributions from corporations, and throwing down aggregate limits on how much individuals can contribute, and signaling that all contribution limits are soon to follow — there is no justification whatsoever for the idea that public funding does anything to deter or chill speech by wealthy individuals.

The court's bizarre Arizona decision was always tantamount to saying that anything the public wanted to do to prevent their politicians being bought and sold in a marketplace of contributions — thinly disguised bribes — was somehow a limit on the power of money to contest for those races, and that anything that limits the power of money over democracy is a violation of the First Amendment. But, having removed all limits the power of money, hasn't the court given us an opportunity to seek public funding for all elections, so that individuals can refuse to buy the tainted candidates and can insist on voting only for those who accept only public financing.

The bottom line is that the corporate board analogy for elected officials isn't entirely wrong; it is true that elected officials serve as kind of a policy boards for the governments that they oversee. But in that case, we need to look at what that policy board metaphor suggests: would Exxon Mobil allow shell or BP to determine who sits on the Exxon Mobil board by funding the candidates for the board? Would Coke allow Pepsi to select all the candidates for consideration by the Coke nominating committee by funding the search for the candidates for the Coke board? That is exactly what is happening in politics in America today: institutions who are often in conflict with and who often wish to weaken and surmount political controls are being given tools with which to determine who sits on the Board of Directors for those political bodies they oppose and would subvert.

The Dred Scott decision – that a person was a piece of property who could never have the rights of an individual under the American system — led to a Civil War and the slaughter of hundreds of thousands to undo. The Roberts court, with its fraudulent devotion to textualism masking a profoundly radical agenda to defang democracy once and for all and make America safe for corporate rule, has, in its reckless and totally non-textual Citizens United and McCutcheon decisions, produced the Dred Scott decision for the 21st century that will be even more consequential.

Roberts, Alito, Scalia, Thomas, and Kennedy will be remembered with Justice Taney, men of shocking and dangerous blindness, learned but devoid of any understanding or commitment to democracy.