No founder could have foreseen the use of the First Amendment to protect from regulation special interest money spent on intrusive political broadcasts in exchange for political favors. Recognizing that any loopholes in the Exceptions Clause power could be used by the unelected judiciary to establish tyranny, the founders chose to make the power broad and absolute, enabling Congress to cut out with a sharp knife any powers that the Court abuses. The same is true of the lower federal courts. Congress has the authority to abolish them entirely if it chose to do so.
Since Congress has never abused its Exceptions Clause power, there has never been need for an amendment that would limit the 1789 Constitution's original broad allocation of power between the judicial and legislative branches. As long as the Supreme Court is widely perceived as serving within the proper scope of its judicial role by enforcing the rule of law and fundamental constitutional guarantees, it retains sufficient public regard to prevent Congress from exercising its Exceptions Clause authority to encroach on that role. And so it has been for several generations, at least.
In the New Deal era a comparable issue arose with Supreme Court justices who, like the Roberts 5, acted more like an unelected plutocratic legislature than a court. In 1937 Franklin Roosevelt tamed the runaway corporatist Court of that era by personal attack on the judges who were publicly vilified as the "Four Horsemen" and old men with outdated "horse and buggy" views of the Constitution. One of the four old horsemen promptly resigned, thereby creating the first vacancy on the Court filled by Roosevelt. The others immediately reversed their opposition to New Deal legislation, a "switch in time that saved nine." That successful outcome ended the constitutional crisis that became known as the "court-packing" episode since Roosevelt simultaneously proposed the expansion of the Court from 9 judges to 15.
The judicial appointments that followed for nearly four decades produced a Court that generally lived up to democratic ideals. They included a distinguished Senator or Governor like Hugo Black or Earl Warren, and a litigator or professor at the pinnacle of their profession like Thurgood Marshall or Felix Frankfurter. The quality of the justices, and of their decisions, attracted to the Court a high level of non-partisan public regard. Congressional opponents of the democratic ideals failed in their efforts to use Exceptions Clause powers to rein in even the Court's most dramatic expansions of democracy, such as when the Warren Court overturned de jure segregation in Brown v Board under the Fourteenth Amendment, broadly protected civil liberties under the Bill of Rights, or reformed America's malapportioned "rotten borough"election districts by enforcing the one person one vote principle.
A sharp re-orientation of the Court away from its extended New Deal-era luster came after the corrupt President Richard Nixon made four appointments to the Court, prior to his Watergate-induced disgrace and resignation under threat of impeachment. Disclosures about Nixon's corrupt election practices had prompted Congress to complete major reforms to restrict money in politics in the early '70's. The Nixon Court's 1976 Buckley v Valeo decision that vitiated these Watergate reforms legitimated and perpetuated a "Nixonian" era of corrupt money in politics.
This new era had been plotted out for the US Chamber of Commerce by Lewis Powell in his infamous Powell Memorandum just before Nixon elevated him to the Supreme Court to carry out his plan for a judicial-aided corporate overthrow of democracy. Powell had the chance to fulfill his prophecy that "the judiciary may be the most important instrument for social, economic, and political change."
In Buckley v Valeo Powell and his Nixon Court colleagues overturned a Court of Appeals' decision holding that money in politics was not protected speech and is subject to legal prohibitions against the harm it causes. The lower court cited First Amendment precedent in support of its conventional view that money in politics is not speech itself, but conduct that amplified speech and more importantly a means of corrupting elections and politicians. Such "speech" - like fraud, conspiracy, and other speech crimes - can be restrained by Congress to serve the greater good, like preserving the integrity of elections.
Restrictions on money in politics would be no different in principle than restrictions on demonstrators from using electronic means or other property to amplify or symbolize their views. There are numerous examples of limitations on speech to prevent public harm. But the majority of the Nixon Court just like its current manifestation as the Roberts 5 did not view democracy as a greater good. In his plutocrat manifesto Powell complained of the problem that: "Politicians reflect what they believe to be majority views of their constituents." For Powell, the Nixon Court, and its Roberts 5 descendants, democracy is the problem; money in politics is the solution.
Nixon's four Supreme Court appointees helped deliver the Court's 1976 decision overturning the Watergate-era reforms aimed at Nixon's own misdeeds. Elections became increasingly influenced by the pressure of campaign contributions. This in turn resulted in the appointment of Supreme Court justices who reflected that growing influence, just as Nixon's judges had reflected and codified Nixon's own corrupt political ethics. The Republican criterion for elevation to the Court became political allegiance to a money-driven conservative movement. In the resumes of most new justices, service to money and big corporations in bureaucratic positions took the place of demonstrated dedication to justice or democracy, and high achievement in service to the public in politics or the law.
There ensued a 30 year period of gradual decline of quality in a closely balanced Court. While the Court was sliding downhill since the Nixon Era, in 2006 the Court lurched to the far plutocratic right as the Roberts 5 took control. Most of these 5 had no particular claim to achievement that might dress up their adherence to extremist right-wing ideology as their principal qualification for their elevated position. The Supreme Court reverted to the character it had when railroads dominated the Court in the first Gilded Age, between Reconstruction and the Progressive Era. What was illegal in Nixon's era was legalized as a result of his lasting corrupt influence on the Supreme Court, and through it on American politics. No end can be seen to this self reinforcing downward cycle by which corrupting judges sustain a system for corrupt politicians who in turn appoint more judges committed to maintaining this corrupt system, or in the case of Democrats - not strongly opposing it.
5. Roberts 5 Election Decisions
Several Roberts 5 elections decisions listed above are worth highlighting.
In FEC v. Wisconsin Right to Life, Inc. (2007) the Court allowed corporate money to pour into electioneering by all but eliminating the distinction between unregulated (since Bellotti (1978)), corporate-financed "issue ads" (a political ad that notionally addresses issues rather than candidates) and regulated electioneering communications that expressly advocate voting on candidates. This allowed corporations to engage in electioneering under the guise of addressing issues while simultaneously mentioning candidates. In doing this, the Roberts 5 overruled a 4 year old precedent without any good reason - according to the dissent - except that the 2006 appointment of one more right wing ideologue, Alito, had replaced a more moderate Republican, Justice O'Connor.
In Citizens United (2010), a case accepted for hearing by the Court just after the Obama election, the Roberts 5 finished the job of unleashing corporate money in time for the 2010 midterms. They reversed more precedents in holding that the First Amendment prohibited any restrictions on money spent "independently" of a candidate to influence his or her election irrespective of the source, even including long-barred corporate money. "Independent," the Court had held earlier, meant the lack of convincing proof of express coordination between the special interest electioneering expenditures and the beneficiary candidate. The Roberts 5 premised their decision on the "right" of all Americans to hear any political advertising money can buy. 1 This ruling overturned prohibitions on corporate electioneering that went back to 1907. More corporate money poured into "independent" negative ads in state and federal elections, helping to deliver a Republican landslide in the 2010 midterms.
In 2011 the Court eviscerated the only policy tool that could counter this Court-mandated regime of unrestrained special interest campaign spending. Arizona voters had adopted by referendum a public campaign finance law designed to neutralize the adverse effects of private money in politics. The law granted public funds to candidates who would forgo private campaign contributions. The funding rose to a level that matched an opponent's private spending. Arizona Free Market Club overturned this public funding system by holding that a state cannot match private spending with public campaign funds. Again the Court hinged its decision on the First Amendment, as it had its earlier decision in Davis v FEC where it had held that candidates could not be assisted by Congress with a similarly increased funding level when faced with the private wealth of a free-spending "millionaire" opponent.
The majority's tortuous reasoning was that by matching the private expenditures some private interest funded candidates might tactically decide to spend less money to avoid the higher level of financial support for the public funded candidate. The four dissenters pointed out that it was the Arizona law, not the Court's decision, that advanced the free and robust speech values of the First Amendment by both paying for more of it and making the forum for debate more evenly available to the candidates so listeners would get both sides of the candidates' argument. According to the dissenters, the Arizona Free Market Club decision reveals a Roberts 5 "world gone topsy-turvy," a world of convoluted legal reasoning where less speech is more.