Right Decision, Bad Result? The Supremes Let Loose Corporate Campaign Spending

Yes, the Supreme Court's 5-4 decision (Citizens United v. Federal Election Commission) to overturn restrictions on spending by corporations in election campaigns bites, but lets examine closely why we fear this decision.  However, first a few words about the rancor of how the decision came about.  It, indeed, was a reversal of an earlier Court's ruling, and, yes, the Court can be justly accused of 'activism' for intentionally broadening the scope of the case before it, and that's bad why?

Activism and breaking with judicial precedence are generally only viewed as sins when the viewer thinks the outcome is wrong.  As to precedence, if a jurist believes a law governing the case before it conflicts with the essence of the Constitution, it strikes me as disingenuous to issue a decision which conflicts with your belief in order to be consistent with prior Courts' interpretation.

The label of 'activism' must be applied with degrees.  First, merely reversing a prior Court's ruling is not activism.  And while, the action of the Court to broaden the scope of the issue before it is open to criticism, it is not outside the purview of the Court to look at the totality of a law at issue.   Should the court be limited to merely determining whether the law at issue was intended to apply to the subject of the case?

If plaintiff's counsel failed to raise the issue of the law's Constitutionality, contesting only its applicability to his client, should the Court withhold its opinion on the law's validity?   If so, it could find itself ruling against the plaintiff, holding that they were covered under the law, albeit a law that it, by majority, believes violates the Constitution.   Merely broadening a plaintiff's complaint isn't a cause for alarm when there is a direct and legitimate Constitutional issue involved.

To calm those who now presume me to be a toad of the 'right', I'll give a real example of overreaching by the Court.  In Bush v. Gore, the Court truly went outside its purview, accepting a case which had no valid Constitutional issues and which otherwise was clearly a matter reserved to the states and Congress.  That instance went beyond the usual cry of activism by legislating from the bench, to a clear violation of the Constitution by the Court itself.

Had there been a higher and unbiased Court, it would have unanimously reversed those results.  The Bush v. Gore decision stands as an indictment of our electoral processes, which have produced the Presidents and Senators who have filled the seats of our highest Court.   The majority's convoluted rationale should be examined and lamented by legal scholars for a very long time.

Now, back to the Citizens United decision and its reception.  After a bit of crowing about how it happened, the brainstorming about how to veer around it will ensue.  But, first, the 'liberals' and 'progressives' and consumer rights advocates should broaden their view and look at the bigger picture:  Why are you (we) so afraid?

Politicians will fawn all over the electorate as their next beauty pageant approaches with the all too common exhortation of, "the American people are too intelligent to be fooled by [insert adversary's position]."   Yep, yep, yep, they can't be fooled by the messages of charlatans and special interests.  Oh, bunk; give it up.  Admit it, the average American is exceedingly gullible. You wouldn't put any important decision in your life in the hands of a stranger of average intellect.  And yet, you will insist to your dieing breath that our nation needs all the democracy we can get.

Like it or not, the decision by the Court was the right decision in view of our Constitution, to protect a fundamental right incorporated into it.  The government should not be keeping tabs on who is saying what and how often, at least that is what we keep telling the Chinese.  If we fear the ability of big business to use, or merely threaten to use, its fiscal power to advocate for or against candidates, we then, certainly, must understand the influence which political advertisements have on the outcomes of our elections.

So, wake up.  Perhaps it is finally time to recognize the ill manner of the process we use to select those to whom we hand over a trillion dollar budget and the right to make, and enforce upon us, laws which control our lives, and who are as well, in theory, charged with keeping us and the country out of harm's way.

I can see the reasoning of the Supreme Court's majority in this decision, striking down a provision of the McCain-Feingold bill, and yet had I been in Congress at the time that legislation was passed, I would have supported its passage.  But, while I see it as a violation of the First Amendment, I view it as a lessor evil to mitigate the ongoing ills of our political and electoral processes, which are unlikely to be remedied by other, and more suitable, methods.

As we have allowed democracy to run amok in the republic, the fate of the country has been placed much more in the hands of the common citizen than was ever intended by Franklin, Hamilton, Jefferson and Madison.  Therefore, we are now biennially faced with the difficult task of educating many who do not wish to be educated, but who have the same level of input into selecting the whole of our leadership as others.   And, indeed, this populace is not only 'allowed' this privilege, but are badgered into exercising it. 

Today we elect almost every government official; no doubt, the product of so many years of political corruption, but has the 'fix' been any better than the former complaint.  The vast majority of voters have no serious knowledge of any but a few of the candidates listed on their ballot.   They go to the polls to vote in the mayoral, gubernatorial, presidential or congressional races, essentially the celebrity races.  Do they know anything meaningful of the attorney general candidates, or that guy running for the judgeship?  And, how much do they really know about the gubernatorial candidates?  One guy looks pretty good; another drives a truck; she's for this, he's for that.

If you found yourself in need of an operation to save your life, would you hire a surgeon for your operation the same way we hire officials to spend our money and control our lives?  Put it out there for a vote, letting anyone who wants to operate on you get listed on the ballot and next election the community will choose for you a surgeon.  Yes, Mack 'The Knife' can, with enough advertising, get enough votes to be your surgeon. 

The Constitution originally placed the election of the Senate in the hands of the several state legislatures. It placed the election of the President and Vice-President in the hands of a body of electors, who were to be, as well, chosen by the state legislatures.  The House of Representatives was the only federal body whose members were to be elected by the people directly.

The Senate was intended to be a body of higher wisdom and insulated from the vacillating whims of the electorate through longer terms and election by a smaller body, presumably of more enlightened people.   Indeed, James Madison had wanted even longer terms for Senators, as he had seen a direct correlation between longer senate terms and more prudent governing among the state governments during the several years after independence had been won.

While it may be dangerous to place the selection of decision makers in the hands of too few people, it is equally or more dangerous to place that selection in the hands of too many, especially where most are ill informed.  This latter circumstance puts political control into the hands of those who have the most resources to put towards influencing that electorate.

Today, our ability to detect undue influence, payoffs and other graft, is far greater than ever before.  Thus the dangers of a limited democracy are less threatening now than those of the far flung democracy we now experience, where voters are bombarded with shrill and superficial messages, often, if not mostly, containing intentionally misleading statements and allegations or outright lies.   I haven't any references at hand, but I'm willing to venture that there is a striking correlation between campaign expenditures and election outcomes in these 'celebrity' races, i.e. he/she who buys the most media exposure wins the election.    

A smaller electoral body would no doubt contain mostly those who have staunch leanings and predetermined positions, yet it allows for a better opportunity to have meaningful dialogue on a candidate's ideas and the issues he/she intend to address.  It greatly improves the likelihood of attracting men and women of higher intellect, those who would otherwise eschew vying for these positions in our current caustic election process.  Today, a Franklin, Jefferson, Madison or Hamilton would be rebuffed by the electorate, if they even dared attempt to venture a contribution.   Too often, I see the founding fathers' names used in support of a political argument today by those who in fact would have repudiated the same figures in their own time.

Defenders of our excessive democratization often grasp at straws when confronted on this subject, lacking sufficient cogent rebuttals.  The favorite one used to distract from the reality of today is to note an insufficiency in voting rights written into the original Constitution.  That argument is presumably intended to discredit the framers of the Constitution as a source of wisdom on this topic, a tact that is rather hypocritical.

While the mores of the times relegated men to a higher legal status than women, the Constitution itself did not.  While the circumstances of the time relegated most people of color to a lower legal status than others, the Constitution itself did not.  These are facts little recognized by those not given to letting thought and facts get in the way of their opinions.   And, yet, had those discriminating aspects been actually specified within the Constitution, their presence would still not pertain to the point at hand.

For the argument being made isn't one intended to favor one group at the expense of another.   Had the framers had in mind that the right to vote would be limited to males, and then only to male property owners, they still recognized that a consensus of an uninformed or ill informed population would render bad government, and they were indeed correct; just look around.

The 'left', or anyone who fears increased political influence by big business, is rightfully alarmed by this Court's decision, but do they have the guts to acknowledge the real reason for that fear?

-RLee