How the Supreme Court has failed the nation
In 1854, Abraham Lincoln made one of his greatest speeches in Peoria, Illinois. Taking the national stage decrying Stephen Douglas’ repeal of the Missouri Compromise, Lincoln demanded, as Lewis Lehrman has written, “that the nation get right with the Declaration of Independence.”
The Peoria address turned on what Lincoln deemed “our ancient faith” – that just government depends, foundationally, on the consent of the governed. “Allow all the governed,” Lincoln declared, “an equal voice in the government, and that, and that only, is self government.” We believe this so profoundly, it is etched on one of the gallery walls at the Lincoln memorial – our national temple of democracy.
Few spectacles could more profoundly debase Lincoln’s sense of the meaning
The Koch brothers announced that a billion dollars is up for grabs in 2016 for the candidate who most pleases them. Casino operator Sheldon Adelson, who reportedly coughed up $100 million in 2012, allowed tribute to be paid, and sought, a couple of weeks ago at his Las Vegas hotel. Republican candidates appeared with bells on.
Hedge fund magnate Robert Mercer announced he’ll sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of investment manager Foster Friess. Florida billionaire Norman Braman will provide at least $10 million for Marco Rubio. Jeb Bush’s new Super PAC, Right To Rise, will reportedly secure $100 million of individual and corporate donations before the end of May.
Democrats are no better. Hillary Clinton followed up her announcement that curing the evils of money and politics will be a core component of her campaign by traveling to California to seek massive contributions for the Priorities USA Super PAC. She’s confident we’ve forgotten the Lincoln bedroom leases and the overtly purchased attentions (and pardons) of her husband’s administration.
Clinton went west, apparently, to remind us anew that she almost never actually means what she says. A psychologist could spend a lifetime exploring whether cynicism, hypocrisy or hubris predominates in such a candidacy.
The Washington Post described the unfolding primary as “a brawl of billionaires.” The elites of the super donor class shield and secure their own, seemingly essential, primary. The Center for Responsive Politics reminds that, in 2012, about a hundred people and their spouses contributed 67 percent of all Super PAC funding. The 1 percent of the 1 percent of the 1 percent.
Coal baron Mark Hanna said, famously, there are two important things in politics: “The first is money and I can’t remember what the second is.” We’ve moved beyond Hanna’s most buoyant fantasies.
This national shaming is made possible, even inevitable, by the United States Supreme Court. In decisions dating back to 1976, our high court has, as a matter of constitutional compulsion, equated money and speech, outlawed expenditure limits, afforded astonishing protection to corporate spending and downplayed dangers of corruption obvious to everyone else in the land.
Even still, the court has needed two additional absurdities
In other words, if Adelson contributed $5 directly to Newt Gingrich’s 2012 campaign, concern over possible corruption is warranted. But spending $20 million on Gingrich’s behalf is unproblematic. No one believes that.
Second, the court has consistently ruled that concern for equal participation has no role in campaign regulation. Limiting the amount of money some can spend to leave others an enhanced chance of access “is wholly foreign to the First Amendment.”
Lincoln thought that “allowing all an equal voice in the government” is the key to the American experiment. Our Supreme Court, as one pundit puts it, believes equality is the value, like Voldemort, that cannot be named. If, as a result, presidential candidates are reduced to playing mascot for billionaires, so be it.
Still, we are Americans. Lincoln was, after all, unalterably right. Five or so members of this court, having spent the entirety of their professional lives in service to the privileged, are unalterably wrong. I’m guessing even they know it.
We are not without weapons. Jurisdiction can be curtailed. New seats can be added to the court. Judges can be impeached for attempting to destroy democracy. Enough is enough. Tom Paine wouldn’t put up with this. Neither would old Abe.
Gene Nichol is Boyd Tinsley Distinguished Professor at UNC-Chapel Hill.
This story was originally published May 16, 2015 at 4:49 PM with the headline "How the Supreme Court has failed the nation."