The raging right pounced on Chief Justice John Roberts mercilessly when his turned out to be the deciding Supreme Court vote in 2012 that flipped the challenge to the Affordable Care Act in the Obama administration’s favor. An act of outright betrayal, they charged, was this vote by a soldier considered a sure bet whenever time came for counting heads on the court’s right flank. Roberts’ vote on the health care decision was indeed an aberration, as his court tenure thus far has clearly shown. So that when he was among the predictable five last week whose one-vote plurality drove this country’s electoral process its furthest yet from any semblance of campaign finance reform, it was more of the business as usual the Roberts court has come to represent.
On his “Hardball” program on MSNBC, Chris Matthews used a boxing analogy for the pattern, within the current court’s conservative bloc, of a pretty much ritualistic adherence to the prevailing view on the right on any given issue. “They go to their corners,” Matthews said, after acknowledging the surprise Roberts vote on the health care decision and the occasional siding with the court’s other wing by Justice Anthony Kennedy.
This latest ruling to remove caps on campaign spending, with respect to contributions from individuals, is in keeping with the direction charted by the court in the Citizens United decision of 2010, in which the right-side majority frowned upon the idea of limits on corporate and union contributions. Absolutely not buying, these five, the premise that to allow such unregulated infusion of funds is to corrupt the system, compromise the democratic process. Justice Stephen Breyer, no believer that carte blanche to big money is a healthy way forward, said in a vigorous dissent last week: “If the court in Citizens United opened a door, today’s decision may well open a floodgate.”
The chief justice insisted that imposing limits on how much money and to how many candidates an individual may contribute was a violation of the free speech provision of the First Amendment. He noted that some of the things protected by the Constitution may be unpopular, even “repugnant,” but that should not invalidate their protection. To which one might ascribe a certain equanimity…until fault lines inevitably appear as far as indiscriminate, across-the-board application on the prickly “rights” issue.
On “Hardball” Matthews asked rhetorically: “Is it any wonder it’s always the Republican appointees?” But for a few notable exceptions, no question that in today’s conventional wisdom it’s invariably GOP nominated members of the court from whom would originate pushback on matters of regulation or reform as they pertain to or impact upon moneyed interests in the society. (In recent court history, two GOP appointed justices, David Souter and long serving John Paul Stevens, were atypical representatives of the GOP brand.) But on that claim, in last week’s ruling, of rights being infringed when political contributions are regulated, although there was no Roberts court then involved, we might double back, for instance, to one of the monumental high court decisions of the last two decades – Bush v Gore of 2000 – for a somewhat different take on the “rights” question courtesy, again, a Republican five. When the Rehnquist court weighed in to halt the vote recount in Florida, despite overwhelming legal expertise which seemed to regard the court-ordered recount a state matter, the “rights” of millions of Florida voters obviously didn’t count for much.
Look, subscribers to the school of thought which holds the Constitution to be sacrosanct, as it is written, have opted, knowingly or otherwise, to live in denial. Talking about those who believe, for example, in the Second Amendment as today’s literal truth – that therein is found license for Americans to walk around packing heat! Those who reject the notion of the Constitution as a living, breathing thing. In this generation, there may not abound sentiment recognizing review and reform of the Constitution as an idea whose time has come. But whether sometime soon or down the road quite a bit, come it must. Continued proper functioning of the democracy will depend on it.
In circumstances like last week’s ruling, where a constitutional smokescreen allows known reality to be trumped by the need to advance political agendas, we get clear reminders of the Constitution being not the outstanding bedrock of this democracy that it has been, but a manipulator’s tool. That the advocates of more and more moneybags entering the electoral process now have fresh Supreme Court sanction for this major game changer is beyond scandalous, as we’ve voiced here before. The court’s pretending to find cover in the First Amendment for a “hands off the money men” ruling is one thing. It’s a harder sell trying to convince the plebes that obscene amounts of money being poured into political campaigns doesn’t materially affect the process.
What’s worse, we’ve been given reason to suspect that there’ll be lots more yet heard about the GOP five’s tinkering ways. If government’s efforts to regulate campaign funding, so as to obstruct potentially corrupting influences, are set aside, dare we speculate about where this path leads? In this climate, a court mandated nixing of government’s authority to regulate period may not be idle speculation.