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Reversing Citizens United: stripping the Roberts 5 of power over elections

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For example, Vermont Senator Bernie Sanders' totally misguided proposal for a constitutional amendment has the strategic depth of a soundbite while serving up a confused mishmash of text for the Supreme Court to eat for lunch with their plutocrat benefactors.

A simple majority vote of Congress could revoke the power of the Roberts 5 to overturn state and federal laws restricting the purchase of elections by the 1%. Congress could then reverse the Court's election law decrees, including the original 1976 decision that overturned limits on the amount of private money that can be spent buying elections. Using this strategy Congress could even have prevented the Court's deliberate partisan theft of the 2000 election in Bush v. Gore.

But since all politicians have achieved their lucrative positions by playing the game according to the corrupt rules defined by the Supreme Court, they have little incentive to change those rules. Instead, to satisfy public complaints, they tinker with the rules in ways that are piecemeal and therefore cannot succeed. Money in politics is like plumbing. Fixing one loophole will just increase the pressure on the others.  The only fix that can work is a comprehensive one that keeps all the money out of politics.

Some are misled by such "practical" proposals to support incremental reform efforts that have only led to ever more pervasive corruption and plutocracy. These partial fixes have convinced many that it is not possible to get money out of politics. But a clearer lesson is that the country has never tried.

4. The Constitutional Remedy for Judicial Tyranny: Article III's Exceptions Clause

In discussing what should be done to recover democracy from the plutocrats, not many media commentators who should know do invoke Congress' constitutional power to strip the Supreme Court of jurisdiction. This power applies to all cases appealed to the Court, which covers nearly all of the Court's cases -- including all its election cases.

Congress' legislative authority to determine the appellate jurisdiction of the Supreme Court can overturn rulings that have usurped Congress' legislative powers and have caused the country's descent into plutocracy, systemic economic decline and structural unemployment since 1976. Once these separate powers of Court and Congress are re-balanced to conform with the constitutional plan, Congress can, in the same comprehensive legislation, reinstate the federal and state laws designed to safeguard the integrity of elections, but decreed by the Court to be unconstitutional. It can also go a few steps further to plug the remaining loopholes allowing money into politics. These reforms would allow the country to get back on track by solving its problems in ways that are best for the country, not just profitable for plutocrats and their hired political class.

One commentator who has discovered the extent of Congress' power to rein in the Court is Thom Hartman n. He recently recognized that the Court's power to declare any law unconstitutional is not to be found in the Constitution. He advocates that this power be entirely removed by a law overturning judicial review, although he also inconsistently advocates an unnecessary, impossible and counterproductive constitutional amendment to overturn Citizens United. James McGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (Penguin Press: New York, 2009) provided an extended discussion of the same proposal to remove judicial review. See also Jeremy Waldron, T he Core of the Case Against Judicial Review 115 Yale L.J.   1346 (2006) (judicial review is undemocratic and does not achieve better results in a functioning democracy).

It is not necessary to go anywhere near so far as abolishing judicial review across the board in order to rescue democracy from the Roberts 5. The Constitution provided a more refined surgical tool for the job. The Exceptions Clause ( Article III, Section 2, Clause 2, Sentence 2) of the US Constitution, states that,

" the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Under this provision Congress may exclude from the Supreme Court's general jurisdiction to review the constitutionality of legislation any appeal concerning political questions, including specifically the law of elections. Even more narrowly, Congress should clearly except any election decision based on the surreal theory that corrupt political money is protected speech under the Constitution that cannot be regulated to eliminate its unquestionable evils. Americans universally reject the Court's view that money is speech, knowing that in fact "[c]orporations spend money on politics to buy influence/elect people favorable to their financial interests."

Americans do not need to wait for 5 judges to accept the obvious. They have the power to make Congress outlaw the obvious systemic corruption that dominates the political status quo under the political regime imposed by the Supreme Court.

Some followers of the Supreme Court might assert that the Exceptions Clause means something other than what it says, that Congress cannot be in full control of the kind of appeals the Court may hear. Those holding this judicial supremacist ideology will argue, without pointing to any specific constitutional language expressly qualifying the Exceptions Clause, that this power should not apply to such important rights as the First Amendment freedoms of speech and religion. It is the First Amendment that the Court has used to invalidate all effective regulation of money in politics.

Others argue not law but the "slippery-slope" rhetorical device that if Congress used its undisputed constitutional power to rescue democracy: "OMG what next? they might decide to overturn Brown v. Board and reintroduce segregation." Such "parades of horribles" by the judicial supremacists are not just ridiculous, they also ignore that Congress has never been successful in checking the Court for unpopular causes. Congress is always significantly less popular than the Supreme Court. Congress will only effectively take on the Court if the public applies irresistible pressure to do so.  

Arguably this only happened after Dred Scott helped cause the Civil War and the victory of a new Republican Party to overturn it. Lincoln ignored Dred Scott by issuing passports to former slaves and ultimately freeing the slaves into full citizenship. This was soon codified in the 13 th, 14 th and 15 th Amendments in order to bind the states as well as the federal government.  The public has never waged such a campaign against a court decision for the purpose of reducing their own rights and liberties.

The founders deliberately made no exceptions to the rule that Congress trumps the Court's appellate jurisdiction. They knew, as Jefferson wrote: "The Constitution, on this [judicial supremacy] hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." The founders understood that an unelected -- and therefore otherwise unaccountable -- judiciary could become an instrument of tyranny that would in extreme circumstance need harnessing to the democratic control of an elected Congress.

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A creative thinker on matters of public policy and art, and a principal researcher. Current focus of work is on the strategies democracies can use to protect against overthrow by corruption, with immediate attention to the mess being made by (more...)
 
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The systematic political disenfranchisement caus... by Larry Kachimba on Friday, Jan 13, 2012 at 9:41:38 AM
This is worthy of more exploration. A constitution... by RedBlueQuest on Friday, Jan 13, 2012 at 9:26:39 PM
This is absolutely the BEST article that I have re... by mainehonza on Friday, Jan 13, 2012 at 11:42:11 PM
Before you consider stripping the Supreme Court - ... by Scott Baker on Saturday, Jan 14, 2012 at 4:58:31 AM
or are deliberately attacking a straw man fo... by Larry Kachimba on Saturday, Jan 14, 2012 at 12:52:02 PM
I get 11 browser pages here, and it doesn't seem t... by Maxwell on Sunday, Jan 15, 2012 at 2:52:52 PM
The article goes to great length - too great ... by Larry Kachimba on Tuesday, Jan 17, 2012 at 2:55:16 AM
But the status quo is not sustainable after the hi... by Michael Hager on Monday, Jan 16, 2012 at 7:48:47 AM
section 2, clause 2, against Citizens United in No... by Richard Girard on Saturday, Jan 14, 2012 at 5:11:27 PM
This article is exemplary. It is something James M... by martin weiss on Sunday, Jan 15, 2012 at 1:20:50 PM
Thank you, Larry, for a thoughtfully detailed, if ... by Vernon Huffman on Sunday, Jan 15, 2012 at 1:33:36 PM
Your question, of course, follows from the analysi... by Larry Kachimba on Sunday, Jan 15, 2012 at 2:17:50 PM
I was in such a hurry on Saturday, I forgot the mo... by Richard Girard on Wednesday, Jan 18, 2012 at 3:40:25 PM
Remember to visit the MoneyOuttaPolitics.org web... by Jerry Morgan on Sunday, Jan 15, 2012 at 6:56:40 PM
Learn more at MOP... by Jerry Morgan on Sunday, Jan 15, 2012 at 8:59:39 PM
Please read Larry Kachimba's article, Reversing Ci... by Rowdy on Monday, Jan 16, 2012 at 12:02:02 PM
Just a comment to thank Larry Kachimba for his in ... by Tim Sanders on Tuesday, Jan 17, 2012 at 6:29:53 PM
politics on this site were to follow Tim's le... by Larry Kachimba on Saturday, Jan 21, 2012 at 11:02:57 PM
Congress could gut "Citizens United" without offic... by John Flanery on Wednesday, Jan 18, 2012 at 5:25:29 PM
Somehow, integrity must be returned to the Supreme... by Gene Engene on Saturday, Jan 21, 2012 at 9:55:53 PM