Bad Call

By lex, on January 22nd, 2010

It’s not often that these pages find themselves in general agreement with the New York Times editorial page, but today’s op-ed on the SCOTUS decision freeing corporations and labor unions to spend as freely – more freely, really – as any private citizen to influence elections is right on effect, if not on the law:

As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.

The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)

The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.

I’m not a fan of slippery slope arguments unless it can be proven that decision “a” necessarily creates the conditions for a mandatory decision “b”. But the federal courts have previously ruled that corporations have the same status as individuals in certain cases, and they have also decreed that spending money is a form of protected free speech. The Roberts court followed the law where it constitutionally led rather than where the vast majority of us as private citizens would have preferred it to go.

It’s an odd place I find myself in, for I have long desired the Supreme Court to follow the written tenets of the Constitution following the framers’ intent and established precedent rather than engage in that well-intentioned judicial activism that permits more morally evolved justices to emanate into the penumbra and discover that their private preferences were somehow always mystically enshrined therein.

But if McCain-Feingold was bad law – and I think it was – it was bad law with a good intent: The amount of private money sloshing around inside Washington manifestly has negative impacts on public governance, as can be seen everywhere from agricultural policy to education and health reform, not to mention those favorite targets of this week – “fat cat” Wall Street bankers and their lobbyists. Politicians, once in power, want most of all to be re-elected. That takes money, and even the noblest among them will hold their noses and get it where they can.

If the Constitution’s First Amendment provisions and the case law dependent thereupon are indeed flawed, in a rational world they could be fixed, since the Constitution has within itself the means for its own improvement. But it’s very hard to see how, in this poisoned political culture of ours, the will to do so will ever be found.

It would have been better for the Court not to have taken this up.

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Filed under Best of Neptunus Lex, by lex, Carroll "Lex" LeFon, Carroll LeFon, Lex

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