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.
E.J. Dionne, Jr. is the author of the recently published Souled Out: Reclaiming Faith and Politics After the Religious Right. He is a Washington Post columnist, a senior fellow at the Brookings Institution, and a professor at Georgetown University.
(c) 2009, Washington Post Writers Group
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COMMENTS (4)
EJD:
....the most important [consequential political moment] 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.
george:
Yeah, and Congress, the White House and the mainstream media haven't done that already, have they?
But at least Dionne is heading in the right direction by acknowledging the Supremes are no less politicos than the rest of the custodians of the gold inside the beltway. After all, some in here no doubt still rever them as the closest thing we've got to...Gods?
Indeed, Antonin Scalia is already the most powerful Pope America has ever had.
But Dionne is ... view full comment
EJD:
....the most important [consequential political moment] 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.
george:
Yeah, and Congress, the White House and the mainstream media haven't done that already, have they?
But at least Dionne is heading in the right direction by acknowledging the Supremes are no less politicos than the rest of the custodians of the gold inside the beltway. After all, some in here no doubt still rever them as the closest thing we've got to...Gods?
Indeed, Antonin Scalia is already the most powerful Pope America has ever had.
But Dionne is no less scary in pointing out the future as prelude to the past. One of them anyway.
But I do feel compelled to point out to EJ that, really, how much worse can it possibly be than it already is now? All Dionne is pointing to is the possibility that Exxon, Halliburton, Goldman Sachs and all the rest of them won't have to rely as much on K Street to get the job done. They can just pour the loot right into the enablers pockets themselves. Maybe Congress can have the safety deposit boxes built right on the Senate and House floors. George Will can design it.
Alexander Hamilton, Federalist 78:
"To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."
george:
This is the sort of hallowed ground the media [liberal and conservative] love to trod to demonstrate how democracy doesn't necessarily have to be owned and operated by those who twist words like this into whatever works to sustain the Golden Rule.
You know the one: Them that's got the gold, rules.
But maybe, just maybe, we can count on the intergrity of John Roberts to crush cynics like me once and for all.
george walton
d/a
This is nonsense. Precedents that go back "two or three decades"? The First Amendment goes back a bit further than that. Note that nowhere does Dionne attempt to defend the actual constitutionality of the statutory provisions. And how could he, really - When the DOJ's own lawyer in the Citizens United case said the government would have the right to ban books due to their political content if the books were funded with funds from a corporation's general treasury, he pretty much gave away the store. The "functional equivalent of express advocacy" test has proven completely unworkable, and it will not be missed.
This is nonsense. Precedents that go back "two or three decades"? The First Amendment goes back a bit further than that. Note that nowhere does Dionne attempt to defend the actual constitutionality of the statutory provisions. And how could he, really - When the DOJ's own lawyer in the Citizens United case said the government would have the right to ban books due to their political content if the books were funded with funds from a corporation's general treasury, he pretty much gave away the store. The "functional equivalent of express advocacy" test has proven completely unworkable, and it will not be missed.
Yes the first admendment goes back a long ways! Now will the originalists among us point to the specific writings of the founders that declared that corporations, unions, etc. were citizens and thus the bill of rights applies to them? And while you are at it, please point to the original construction that money and speech are synonomous.
Yes the first admendment goes back a long ways! Now will the originalists among us point to the specific writings of the founders that declared that corporations, unions, etc. were citizens and thus the bill of rights applies to them? And while you are at it, please point to the original construction that money and speech are synonomous.
No, that is nonsense. At the time the First Amendment was adopted, corporations had to receive their charters directly from legislative bodies, and those legislative bodies, including the Congress of the United States, regularly dictated the conduct of the very few corporations they chartered. I don't understand how anyone even has standing to challenge the law here -- no actual citizen's right to speak freely has been in any way infringed. The only parties who have faced restrictions are corporate entities, and the Founders were quite clear ... view full comment
No, that is nonsense. At the time the First Amendment was adopted, corporations had to receive their charters directly from legislative bodies, and those legislative bodies, including the Congress of the United States, regularly dictated the conduct of the very few corporations they chartered. I don't understand how anyone even has standing to challenge the law here -- no actual citizen's right to speak freely has been in any way infringed. The only parties who have faced restrictions are corporate entities, and the Founders were quite clear on the point that corporations are not citizens. The constitutionality of restrictions against political activity by non-citizens is not in doubt, and cannot reasonably be contested without ignoring the plain text of the Constitution, the established practices of American government and jurisprudence, and the actions and stated intentions of the Founders. For the Supreme Court to rule otherwise would be possibly the most radical example of judicial activism in American history.
("But the First Amendment doesn't specifically limit itself to citizens," one might object, but that logic not only removes the government's ability to prevent corporations from engaging in electioneering -- it removes the government's ability to prevent foreigners from engaging in electioneering. Raise your hand if you really want the Chinese Communist Party to be allowed to secretly funnel unlimited cash into American elections via businesses with U.S. subsidiaries and individual agents resident in the United States. If you're not raising your hand, then you are in fact opposed to Citizens United's claims in today's case. Hell, under the standards Citizens United is advocating, Muammar Qadhafi could write a check for $1 billion to secretly fund political ads in the 2012 election while he's on U.S. soil next week and Congress couldn't pass a law either to stop him or to require that his money be disclosed by anyone who accepts it.)
I have two proposals. First, the law on bribery and official corruption should be changed such that criminal quid pro quo -- the offer and acceptance of a bribe -- can be assumed if an elected or appointed official makes any official action that financially benefits any company that has spent money on his behalf in a campaign within his current or previous term of office. (Just as intent to sell can be assumed if a person is in possession of a certain quantity of illegal drugs.) So if a corporation funds an ad on behalf of a candidate, that candidate may not vote for any measure that would financially benefit the corporation -- or, if president, he may not sign legislation that financially benefits the corporation -- until after the conclusion of his next term in office. Then go ahead and allow corporations to spend money on electioneering just like an actual citizen.
Second, if Roberts votes to overturn long-settled precedent dating back nearly half the life of the republic, after having told Congress, under oath, that he would do no such thing, then he ought to be impeached for perjury and misconduct. Democrats have the votes to do it. He would never be convicted and removed by the Senate, but such an expression of legislative displeasure may have a salutary effect on the rising tide of conservative judicial activism.