Selling Democracy – Out
We started with Citizens’ United…a Supreme Court decision that allowed corporations, unions, and independent PACs unlimited “free speech.” In other words, they could spend as much money as they had espousing one cause or another during an election, including of course one candidate or another.
This lifting of electioneering regulation gave corporations and candidates enough money to completely ignore the wishes of an electorate. And while the phrase, “one man, one vote” appears nowhere in the US Constitution, this worthy and long held dream was purposely burst by a Court keen to legislate from the bench, ignoring precedents, ignoring the prospect of “undue influence” in favor of clear, unlimited power to the rich.
Not too much later, the same Court nominees , during their examinations by the US Senate, professed to believe in decisions and customs other, earlier courts had made. We now read that nominees are routinely advised to say as little as possible about their personal views of American justice or about earlier cases already on the books. The best nominee became (a) a conservative without (b) a paper trail. Some even went so far as to declare that thinking about the abortion issue, for example, never crossed their minds, or denying that imagining the dilution of the Voting Rights Act ever swam into their consciousnesses.
Of course, we’ve learned from half a dozen thoroughly researched and clearly written volumes that these responses were dishonest.
So that when the Court did decide to eviscerate the Voting Rights Act of 1965, it did not come as a surprise to most court students. This decision allowed states individually to legislate as many obstacles to the voting process as they could imagine.
We’re watching daily how these new freedoms are being bolstered by laws that tend to make voting by students, minorities, and the elderly increasingly difficult. Just as we are watching our own Justice Department trying to defend its intrusion into what the Court has deemed States Rights by using more arcane, more expensive, and mostly too late strictures to defuse this further sliding of tenets that make the United States great.
Apart from currently doing battle with the states of North Carolina and Texas, the Justice Department is struggling against Kansas and Arizona who both want proof of citizenship from their voters, rather than simple statements.
This means passports or birth certificates for everyone who comes to the polls.
Whether this new (but really increasingly old) demand is ratified by a court or struck down by the Justice Department under Section 2 of the Voting Rights Act remains to be seen. What’s really got the Supreme Court’s attention, and therefore that of nearly every other civil libertarian in the nation, is the transparent attempt by the court to rehear an old case which it has been trying to dislodge for years. It was ducked in Citizens’ United, but as it occurred in a case lovingly called Buckley vs Valeo, this stands now as an extremely severe rebuke embarrassment to the Justices.
This case from 1976, tried to do several things that the current
Supreme Court now finds embarrassing. It limited contributions
to candidates for federal office; required the disclosure of
political contributions; provided for the public financing of
presidential elections. Further, it limited expenditures by
candidates and associated committees, with the exception for
presidential candidates who accepted public funding. It limited
independent expenditure to $1000; limited candidate expenditures from
personal funds, and created a method for appointing members to the
Federal Election Commission.
The new case, McCutcheon vs the FEC, seeks to free once and for all
the amounts of money individual contributors can make to any
political fray. The approach is a sure one: to do so limits the power
of free speech by the citizen in question, Shaun McCutchen, a lower
case industrialist from Alabama, who says, “I think we need to spend
more money on politics, not less.”
As current court fanatics know, the surest way to catch the attention
of this conservative court is to cry dereliction of First Amendment
There’s a lot of vicious and frightening inaction living in D.C.
now, so calling to rehear Buckley is really under most people’s radar. It
mustn’t remain there, because with Citizens United and the death of
Section Five of the Voting Rights Act, Buckley v Valeo is the last
standing monument to trying to fashion a fair playing field in electoral
Naturally, the current conservative court doesn’t want to play by
these, its own rules. So by rehearing and then striking down what
remains of Buckley is the third and final nail in the coffin of fair and
equal treatment before the law.
What allowed Buckley v Valeo to live at all was the realization by
Earlier, more sophisticated justices that without it, the impression left
for voters was undue influence, influence peddling, the appearance and
also the real prospect of fostering corruption.
Some of the earlier court’s earlier reasoning was direct and to the
point. “There is a sufficiently important governmental interest in the
prevention of corruption and the appearance of corruption…This
follows from the Court’s concern that large contributions could be given
to secure a political quid pro quo.”
Now the current court lives in its own bubble. It cannot, or will not,
see that allowing contributions of any and all sizes to go
unchallenged does clearly pose the threat of appearing to exchange
financial support for political gain. According to this court, as in
Citizens’ United, money itself is not influence. And donating it does not
give the appearance of trying to take advantage of access to bring about
a status of I-do-this-for-you-and-you-do-this-for-me, or what’s called
quid pro quo, tit for tat.
As for the Voting Rights Act, part II of the Courts demolition of
what makes the US a great country, it was unable to understand that
prejudice exists today in all parts of our nation, as we so clearly saw in
the election of 2012. Apparently the Court missed all the action. In
their view, we didn’t need to supervise states. Their attempts to limit
voter participation in elections were unnecessary and futile because
whatever prejudice did exist was more or less now finally benign.
We’re trying not to beat a dead horse. With the state of our current
economy what it is, with Syria and the Mideast a sinkhole of violence,
with the government shut down and facing what may be the first
governmental financial crash in our history, all this stuff about the
Supreme Court may seem overwrought.
But it isn’t.
We have already reached a point in our history where money can
make the difference in every single electoral campaign, from national
to state to municipal, effectively cutting out the participation and
trust of the American voter.
We have already, by legislating from the bench and allowing the
Voting Rights Act to be cannibalized state by state, made it even harder
for voters to fulfill what they have come to think of as one of their
most important patriotic duties.
With McCutcheon v the FEC, and its attempt to overturn whatever
small regulation still exists in electoral science, Fred Wertheimer,
president of Democracy 21, which supports campaign finance laws,
can say simply, “It’s the second bomb dropping on controlling the
abuses of money in politics. If you knock out aggregate contribution
limits, you create a system of legalized bribery in this country.”
The Court may see this differently insofar as they are busy reforming
every statute envisioned to keep the US proud of its democracy.