Opinion

The Great Debate

Roberts Court: Easier to donate, harder to vote

Chief Justice John Roberts’ first sentence of his majority opinion in McCutcheon v. Federal Elections Commission, striking down important limits on campaign contributions, declares “There is no right more basic in our democracy than the right to participate in electing our political leaders.”

A look at the Roberts Court’s record, however, shows that this may not be its guiding principle.

Through a series of rulings, the court’s conservative majority’s rulings have instead made it easier for big-money donors to influence elections — while making it harder for many Americans to use the only political influence they have: their vote.

The court has done handsprings to accommodate claims that laws burdening donors’ ability to spend money in elections are unconstitutional. In Citizens United, for example, the court decided to schedule re-argument during a special court session — something very rare in the Supreme Court — to consider whether to strike down campaign finance restrictions on corporate expenditures as unconstitutional. (Which the court ultimately did.). The plaintiff in that case hadn’t even pressed such a radical argument, until the court explicitly invited it to do so.

The Roberts Court’s solicitude in protecting the ability of the super rich to participate in our elections through massive amounts of cash is, however, missing when it comes to protecting ordinary Americans’ right to vote free from discrimination. Last term, a divided 5-4 court struck down a section of the Voting Rights Act that had successfully prevented racial discrimination in voting since 1965.

McCutcheon: Should the rich speak louder?

On Wednesday, the Supreme Court handed down its most important decision on campaign finance reform since Citizens United. The decision, McCutcheon v. Federal Election Commission, seemed to divide along familiar ideological lines, with Chief Justice John Roberts writing the majority opinion for five conservatives and Justice Stephen Breyer, writing the dissent for the four liberals.

What really divided the court, however, wasn’t partisan politics pitting Republicans against Democrats but two conflicting views of the First Amendment. Which view you embrace depends on whether you see the McCutcheon decision as a principled triumph for unpopular speech or a First Amendment disaster that will ensure that a handful of the richest Americans can use their vast resources to drown out the voices of everyone else.

The First Amendment view embraced by Roberts and his conservative colleagues is rooted in individual liberty. There’s no right in our democracy more fundamental, Roberts began, than the First Amendment safeguards for “an individual’s right to participate in the public debate through political expression and political association.”

Why corporations don’t deserve religious freedom

On March 25 the Supreme Court will hear arguments in two cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, whose outcomes will decide whether corporations can exempt themselves from provisions of the Affordable Care Act (ACA), based on religious beliefs. The cases challenge a provision of the ACA that requires employer-provided insurance plans to include contraception coverage.

The rulings’ importance extends beyond the ACA, however. Hobby Lobby and Conestoga Wood, its companion case, are also about Citizens United — which established that corporate personhood includes freedom of speech, exercised, in part, by giving money to political causes. Now the court will decide whether corporations have freedom of religion as well, and whether on the basis of those rights, corporations can deprive services to others.

The court should reject this dangerous assertion. Corporations exist as separate legal entities precisely to distinguish their activities from those of their owners. It is that separation that Hobby Lobby threatens to erase.

Making every voter equal

The venture capitalist Tom Perkins recently suggested that he should have a greater voice than others in selecting our government because he’s rich. “You pay a million dollars in taxes,” he told the Commonwealth Club in San Francisco, “you get a million votes. How’s that?”

Perkins later insisted that he had intended to be outrageous. As most Americans understand politics, however, he was just stating the obvious.

Instead of extra votes on Election Day, we who are wealthy enough to give money to politicians get special access before, and influence after, as candidates pursue the cash that is the life’s blood of their election campaigns. The more you give, the more access and influence you have. It’s as simple as that.

Not ‘court-packing,’ GOP’s aim is ‘court-shrinking’

The party that brought you “death panels” and “socialized medicine” has rolled out another term — carefully selected, like the others, for its power to freak people out. “Court-packing” now joins a Republican rogue’s gallery of poll-tested epithets.

Of course, “court-packing” is not a new term, and its menacing overtone is not a recent discovery. “There is a good deal of prejudice against ‘packing the court,’” observed Homer Cummings, the U.S. attorney general, in 1936, on the eve of President Franklin D. Roosevelt’s failed attempt to do just that — to tip the Supreme Court’s balance by increasing the number of seats and filling them with New Dealers. Cummings, who sold the idea to FDR, hoped Americans would not be “frightened by a phrase.”

But they were. And today’s GOP is betting they still are. Hence the resort to a term that has no valid application to the matter at hand: President Barack Obama’s determination to fill the three vacant seats on the U.S. Court of Appeals for the D.C. Circuit.

Roberts: The ‘swing’ justice of election law

Tuesday’s oral argument in McCutcheon v. FEC, the latest high-profile campaign finance case, will likely generate familiar storylines about a fiercely ideological Supreme Court, where one justice drives the outcome of a close 5-4 decision. Public perception of the Supreme Court is that there are four conservatives, four liberals and Justice Anthony Kennedy in the middle — as the “swing” vote.

But that’s wrong — at least where voting rights and campaign finance cases are concerned. Though Kennedy’s vote dictates some outcomes when the court is split 5-4 along ideological lines, another justice has been the driving force behind current election law jurisprudence. In this matter, it is truly Chief Justice John Roberts’s court.

Since Roberts became chief justice in 2005, the court has issued 23 written opinions involving voting rights, redistricting or campaign finance. Roberts is the only justice who has been in the majority every time. In addition, he has written twice as many majority opinions in this field as any other justice — six, as compared to Kennedy’s three. Roberts has now written more than 25 percent of the election law decisions handed down since he joined the court.

King’s deferred ‘Dream’ of democracy

In the midst of current retrenchments on voting rights, the 50th anniversary of Martin Luther King Jr.’s “I Have a Dream” speech provides an important opportunity to consider whether his “dream” has been realized. Or, is it now, in the words of the famous poet Langston Hughes, a “dream deferred.”

In that speech and many others, King lays out a powerful vision of democracy “deeply rooted in the American dream . . . ‘that all [persons] are created equal.’” King also articulated a three-pronged vision for American democracy — inclusive, substantive and transformative — throughout his struggle for civil rights.

The promise held in King’s dream is to wake up one day to its reality — not to slumber while discrimination marches on. The immediate step we can take is to reverse the continuing assault on voting rights and expand participation in our democracy. Rehabilitating the Voting Rights Act of 1965, following the Supreme Court’s recent decision in Shelby County v. Holder, which struck down one of the law’s most important provisions, should be at the top of this agenda.

The Supreme Court ‘s Gilded Age redux

The Supreme Court belongs to the small club whose members seem to assume that saying something makes it so. It deals in precedents — not the same thing as dealing in history. It prefers obiter dicta to the messiness of the past.

In his Citizens United opinion, Justice Anthony Kennedy wrote, “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Really? The equation of money with speech has gotten a lot of well-deserved attention, but the inelegant “not coordinated with a candidate” seemed attached only to define “independent.” Does the phrase mean that if expenditure was coordinated with a candidate it was not political speech and thus not protected?  We are about to find out.

The framers on campaign finance law — via Tumblr

How our nation’s founding fathers would feel about Tumblr is as impossible for the Supreme Court to know as how James Madison would have felt about violent video games. But fortunately there’s a new Tumblr blog available to help the justices understand how the framers of the Constitution felt about “corruption” in politics.

The blog, created by Harvard Law professor Lawrence Lessig, examines all the writings of the founding fathers’ and aggregates every mention of “corruption” to get an overview of their opinion. The answer could prove important to the court’s ultimate ruling in the latest post-Citizens United challenge to campaign finance laws.

The Supreme Court, in its controversial Citizens United decision, ruled that corporations have the right to spend without limit on ads and other political activity to support a particular candidate or party. The result was $1.5 billion in outside spending during the 2012 presidential election.

Court due to make second trip down the aisle

Near the end of his engaging and informative e-book on the Supreme Court’s recent same-sex marriage decisions, To Have and To Uphold, New York Times reporter Adam Liptak makes a prediction: “The day will come when the constitutional question [over the constitutionality of a ban on same-sex marriage] will return to the Supreme Court for some final mopping up, perhaps when the number of states still banning same-sex marriage has dwindled to a score or fewer.”

Though I agree with much of Liptak’s book, I think he’s wrong on this particular prediction: The constitutionality of bans on same-sex marriage will return to the Supreme Court sooner rather than later — and it will happen while more than a score of states  still ban the practice. What the court does then is anyone’s guess.

There’s good historical precedent for Liptak’s prediction. Take the case of poll taxes, which required people to pay money (including back taxes) in order to be able to vote. The Supreme Court in 1937 upheld poll taxes, provided they were not applied in a racially discriminatory way. But states started doing away with them, and the country passed the 24th Amendment to ban them in federal elections.

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