There is no need to amend the Constitution to solve the problem of money in politics - which is the source of corporate political power and much of the excessive inequality their money buys. The founders already anticipated the problem of a plutocratic Court and provided the complete solution. Under the Constitution Art III, Sec 2, Cl 2 Congress can strip the Court of the power to hear any case involving money in politics.
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Part I The Most Effective Solution for the Political and Economic Disenfranchisement of the Many by the Money in Politics
The systematic political disenfranchisement caused by the Supreme Court's legalization of money in politics has in turn caused -- and can be measured by -- the extreme and still growing economic inequality in the United States. Both political and economic inequality can be addressed by restoring the traditional boundary demarcating the separation of legislative and judicial powers, thereby excluding the Supreme Court from regulating and judging elections. These are legislative powers assigned to Congress under Art. I, Sections 4 & 5 of the Constitution.
The restoration of this fundamental separation of powers defense against judicial tyranny can be accomplished by legislation authorized, if not mandated, by the Exceptions Clause (Art III, Sec. 2) of the Constitution. Congress has been deliberately derelict in its duty to defend its legislative power from unconstitutional encroachment by a politicized majority on the Court.
Too corrupted within the money-in-politics system mandated by the Court to act on its own initiative, Congress must be forced by the People to enact comprehensive legislation to get money out of politics, and to use its existing jurisdiction-stripping power to prevent judicial interference with that legislation.
Having been disenfranchised by money, do citizens have any other rational priority than to restore a government that has the consent of the governed by excluding money from politics?
1. Economic Inequality Arises from Political Inequality
The US ranks as the 41st most unequal country, with a bullet. As the most unequal of any industrial democracy, it is joining the ranks of banana republics. The US has become more unequal than most Americans either want or knew, at least before the Occupy Movement refocused attention on this crucial issue. Even President Obama has started talking about it, which should not be confused with his actually doing anything to effectively fight it.
The Congressional Budget Office reports that:
"the share of total after-tax income received by the 1 percent of the population in households with the highest income more than doubled between 1979 and 2007, whereas the share received by low- and middle-income households declined."
The International Monetary Fund (IMF) issued a finding in April 2011 which would not be contested by any credible economist: "longer growth spells are robustly associated with more equality in the income distribution." As in the 1920's, it is also true today that concentration of wealth produces speculative bubbles instead of an economy that can sustainably create the jobs necessary to keep up with population growth.
Income inequality suppresses demand, destroys jobs and stagnates growth. Less equal societies, like the United States, have higher rates of mental and physical illness, anxiety and violence, teenage pregnancies, obesity, drug abuse, imprisonment, and eroding public trust. They tend to consume excessively. This roiling social dysfunction is caused by inequality, not just poverty. R.Wilkinson and K.Pickett, The Spirit Level: Why Greater Equality Makes Societies Stronger (2009).
The current trend of job killing inequality began in 1976, the same year that the Supreme Court redefined the corrupting involvement of money in politics as First Amendment speech. Buckley v. Valeo thus legalized systemic political corruption, the sale of public policy that funnels wealth from 90% to a tiny elite who can pay to play this game.
This growing inequality between the 1% who buy government and everyone else who they stripped of prosperity and power was masked since the 1970's by a series of one-time compensating factors and bubbles. The transition to two income families is one factor that distorts the CBO's figures, which is based on household income. Measuring "household" rather than individual income understates the growth of inequality during the 28-year period studied. Reverting to child labor would similarly increase household income while increasing inequality.
Other factors that have masked the growing disparity in incomes since 1976 include longer hours of work, decline of the personal savings rate, growing credit card debt, and finally the housing mortgage ATM bubble which ended in foreclosures and poverty for many when the bubble burst. These accommodations to the underlying fact of stagnant median incomes helped defy economic gravity through 30 years of growing inequality after 1976.
Unemployment (caused by inequality) and asset deflation (caused by credit de-leveraging) as occurred during the Great Depression for the same reasons, and were then addressed with effective New Deal policies, have been addressed this time around by old deal policies -- bailouts for the rich and foreclosures for the rest, anti-Keynesian political economics that complains about deficits, rather than deploying them effectively to overcome private sector unemployment. Politicians responsive to the 1% recite the voodoo economics liturgy that even greater inequality -- more tax cuts for the rich, and scuttling safety nets for the rest -- will somehow cause growth, and new jobs.
The bizarre economics of politicians beholden to the 1% create tax-free profits for the 1% , and increasing inequality for everyone else, as the 1% continues to ratchet up their share of national income and wealth. Corporate profits, casino capitalist commodities bubbles, unemployment, inequality are all on the rise in this great recession.
2. The Roberts 5: Guardians of Plutocracy
The engorged 1% at the top "speak" to power with money in politics skimmed from the profits their political investments bring them. Unless real change is brought very quickly to the corrupt political order that sustains their power, these new rulers will prosper as the stagnant economy continues its jobless descent into a new feudalism for the rest.
The John Roberts majority of 5 assumed control of the Supreme Court in 2006, just in time to protect the casino capitalists from the political consequences of their final burst bubble. Led by Bush's new Chief Justice this gang of 5 promptly consolidated the rule of money over politics. The changes in the rules are thus all headed toward - not away from - a new feudalism. During the past 6 years these five judges have decreed unconstitutional the following election integrity safeguards:
reasonable state limits on election spending and contributions, Randall v. Sorrel (2006);
restrictions on corporate electioneering for or against candidates under the guise of "issue ads," Wisconsin Right to Life, Inc . (2007);
the federal "millionaire amendment" addressing the use of personal fortunes to buy elections, Davis v. FEC (2008);
prohibition of "independent" corporate electioneering expenditures, Citizens United (2010);
public funding of candidates at a level to match private contributions to opposing candidates, Arizona Free Market Club (2011).
These decisions all employed the surreal metaphor invented in the seminal 1976 Buckley v. Valeo decision that money in politics that corrupts democracy is the same as speech protected under the Constitution for the purpose of sustaining democracy.
Money in politics has since 1976 undermined the consent of the governed and bought distorted policies that relentlessly increase inequality. From tax cuts for the rich to trade policies that export jobs; a war profiteering MIC to healthcare industry subsidies; financial and corporate bailouts to foreign policy at the service of countries with generous lobbies; agribusiness subsidies to procurement scams; environmental poisoning and global warming to empowering energy and other monopolies, the plundering 1% has left behind a dying carcass of a former democracy in the United States. The economy that once sustained a middle class essential for a thriving democracy has been gutted.
Policies of the illegitimate government festering in the remains are designed to physically and financially deprive 99% of Americans while engorging the 1% who pay to play. Their bloated wealth now seeks new similar dining opportunities abroad. Dennis Kucinich says the resulting "massive transfer of wealth [is] a challenge to the legitimacy of the two-party system." Two venal parties vie for their cut of the money they help transfer to the top 1% while illegitimately pretending to serve a majority of the other 99%. As Gore Vidal put it:
"America has only one political party - the property party. It's the party of big corporations, the party of money. And it has two right wings, one is Democrat and the other is Republican."
The difference between the two parties is that Republicans do what they say while blatantly lying about the effect it will have (e.g. cutting taxes on the rich or deregulating corporate predators will "create jobs"), while Democrats lie about what they will do by talking Democrat and governing Republican (e.g. Obama will tax the rich, change the way Washington does business, oppose the health insurance mandate, regulate Wall Street, restore civil liberties, etc.). Democrats are superior contortionists, tying themselves in knots blamed on Republicans, to avoid disingenous campaign promises that would offend their paymasters if redeemed. In return, mainstream Americans are united in expressing deep disdain for all politicians.
In August 2011 the number polled who approved of Congress was 14%, declining to 9% in an October poll which also found that 89% distrusted government to do the right thing. A June 2011 CNN poll found that 86% of Americans agree that politicians are more influenced by money than by what is best for the country, while 67% believe elections are generally for sale to the candidate who spends the most money. The hard data showing that winners spend over double what losers spend for a seat in Congress supports this view. Polling consistently shows that Americans believe their country is run by and for the rich, and is no longer a democracy of the people. In an NBC poll 76 percent (including 62 percent of Republicans and 61 percent of Tea Party supporters) agreed that the current economic structure of the country is out of balance, favoring a small proportion of the rich over the rest of the country, and that America needs to reduce the power of the banks and corporations. A declining number of likely voters, now only 17% , think government even has the "consent of the governed," the Declaration of Independence litmus test for any republic, not to mention a democracy. George III had better numbers.
To dust off an old word that describes this situation, the Supreme Court has turned America into a plutocracy where money rules. Republican President Theodore Roosevelt famously defined plutocracy as government by the "ideals of so many glorified pawnbrokers" -- the robber-barons of his day. This era's political pawnbrokers, the 1% who buy elections, are those who hold national sovereignty in hock as they profit from their investments in elections, politicians and and public policy. The people know it. They only lack a clear strategy to deal with it. They are being misled to false solutions by the propaganda of professional activists and corporate media alike.
3. Real Solutions, Fake Solutions
Any strategy must address the source of the problem. The Supreme Court has established the ground rules that sustains this plutocratic political order. A passively corrupt Congress is complicit. The Constitution empowers Congress to prevent the Supreme Court from undermining democracy. But it serves the financial interests and political ambitions of Congress and its dependent political class to not exercise or even acknowledge the power it has to check the Court. They prefer to divert attention to soundbite strategies that would actually aggravate the problem if they could succeed.
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 Hartmann. 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.
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. 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.
This decision more than any of the perverse election decisions of the Roberts 5 revealed a Court majority intent on maintaining plutocracy without a shred of fidelity to law, logic, the Constitution, or even common sense principles of fairness and democracy.
First Amendment rights serve democracy by fostering the free sharing of views and information upon which voters in a democracy depend to make decisions. In the hands of the Roberts 5 the First Amendment has become a tool to assure that elections are won by those who can afford to buy elections and politicians who will in turn appoint more judges like the Roberts 5 who will perpetuate the influence of money in politics.
6. The Political Question Doctrine: Separating Judicial from Legislative Power
The Constitution (Art. I, Sec's. 4&5) commits the conduct of elections to Congress and state legislatures, provided only that they do not use that power to entrench minority rule contrary to the core democratic axiom of one person, one vote. Before 1976 the Court had excluded itself from deciding any other questions about elections as being inappropriately political for a Court. Such questions therefore lie outside the judicial function and are properly left to the elected branches. In legal terminology such cases were held to be not "justiciable."
This "political question" exception to the judicial power of review is rooted in the same Supreme Court decision, Marbury v Madison, that first declared the Court's authority to overrule acts of Congress in order to enforce the Court's own view of the Constitution. The power to declare acts of Congress unconstitutional was not used to determine the outcome of a case until Dred Scott (1857), which has been compared to Citizens United' s pernicious anti-democratic effect on the country . The former decision overturned the Missouri Compromise, imputed racist views of citizenship to the Constitution, and thereby helped cause the Civil War to settle the question. Dred Scott is legendary as the worst decision ever made by the Supreme Court. The decision got judicial supremacy off to a bad start.
In Marbury Justice Marshall had qualified the controversial and potentially dangerous power he claimed for the Court. He immunized himself from possible impeachment by placing it in a theoretical context. The challenged action of the Jefferson administration was not affected by the decision. To make the ruling even more palatable to his reigning Republican political opponents, Federalist Marshall made the enduring caveat that the Court could not overrule Congress in cases that involved "political questions."
Since 1976 the Court has ignored Marshall's caveat and effectively abandoned the political question doctrine in election cases. See Rachel E. Barkow, More supreme than court? The fall of the political question doctrine and the rise of judicial supremacy , 102 Colum. L. Rev. 237 (2002). To get the Supreme Court out of elections it is only necessary for Congress to mandate that the Court return to Marbury's first principles and the nearly two centuries of judicial practice under the political question doctrine.
The political question doctrine can be reinstated by act of Congress. While the Exceptions Clause provides Congress the general power to curtail the Supreme Court's appellate jurisdiction in any area of law, the restoration of the political question doctrine provides the politically supportable occasion to exercise that power. Limiting, under the plenary Exceptions Clause powers, the Court's jurisdiction to decide political questions would once again prohibit the Court from acting as an unelected legislature dictating the rules for elections. In this way, the separation of power breached by the Supreme Court's usurpation of legislative power since 1976 can be re-balanced by Congress. Just as the Court exercises a "check and balance" on powers of Congress so can Congress check and balance the Court when it exceeds its judicial authority or otherwise violates the Constitution.
The core principles of the political question doctrine, as outlined in Marbury and followed by the Court until 1976, excluded the Court from deciding issues committed to Congress, or issues that are political in nature because they affect the whole nation not just particular litigants. Elections are both quintessentially political and also fall within the exclusive powers of Congress.
Even under the most restrictive view of Congress' Exceptions Clause power to define the jurisdiction of the Supreme Court, Congress is empowered, indeed obliged. to protect its own exclusive constitutional authority to regulate and judge elections under Art. I, Sec's 4 & 5 -- always subject to the prohibition of illegitimate minority entrenchment in the legislative branch by violation of the one person one vote principle.
The elected branches can do the same for the states by exercising their exclusive Art. IV, Sec 4 authority, recognized in Luther v Borden (1849), to guarantee the states a republican form of government under corruption-free election laws.
Congress may exercise these powers over elections by rejecting the metaphorical notion that money in politics is speech that should be protected by the First Amendment on the same par as actual speech that communicates information and opinion relevant to democratic debate.
Money in politics presents an election integrity issue over which the Court has no power, as was recognized unanimously in Burroughs v. United States, 290 U.S. 534, 547-48 (1934), by the same conservative Court that Roosevelt sought to pack. ("The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress.") No Court prior to the Nixon Court in 1976, however conservatively plutocratic, thought the question of money in politics raised a First Amendment free speech issue, or that the Court could interfere in elections so as to compromise their integrity on the bizarre theory that special interest money in politicians' pockets, any more than a pimp's procurement pitch on a street corner or an inside trading tip in a boardroom, somehow has the same status as political speech on the tongues of citizens.
The fundamental question is whether five unelected judges or the representatives of the people in Congress should decide if the "money is speech" metaphor provides a legitimate basis for conducting elections and overthrowing election integrity laws. Is it not the people who should decide through their elected representatives whether this surreal metaphor is merely an illegitimate excuse by judges indebted to plutocrats for their positions to intrude upon Congress' exclusive powers over elections in order to snatch sovereignty from the hands of the people as Justice Powell planned?
In Citizens United there was no one in Court specifically claiming the right as a voter to hear more corporate-sponsored political advertising inserted in broadcasts. The Court's ruling claimed this right for all Americans without hearing from any single American who would confess the counter-intuitive desire for such a right to have more political ads interrupt their broadcast programming. This ruling was not a decision of a case or controversy of a particular person or group advancing a particularized right. It was a decree establishing a political regime universally applicable to all Americans. The decision thereby invades the field of politics and strays well outside the bounds of judging. The Court acted well outside the lawful scope of its authority in ignoring the political question doctrine and the constitutional proscription against advisory opinions.
7. The Status of "the People" in Defense of the Constitution
In a democracy, which institution is empowered to make such rules universally applicable to all Americans? Which institution better represents the views of all Americans concerning the "right" to be or not to be subjected to paid special interest political advertising? These questions were answered long ago by the political question doctrine. Giving such power to the Court, takes it away from all Americans who are entitled to balance conflicting rights and values in a way that best serves the country. By preventing their elected representatives from regulating elections in the interests of all citizens, the Court has more broadly prevented the people from electing politicians who are at all motivated by what is best for the country rather than by what will fill the politicians' own pockets with payments from the plutocrats they serve.
When one interest conflicts with the other it is a political question how to resolve the conflict to enhance both liberty and democracy for all. The separation of powers under the Constitution mandates that Congress should answer such questions weighing the rights and interests of all citizens because those are political, not legal, questions. Citizens United, like the Courts' other election decisions since 1976, violates the political question doctrine by intruding on legislative powers.
Legal questions involve the particularized interests of an individual or a group of people - not everyone. As one scholar of Article III put it:
"Too little particularization or too much political discretion and the courts are off their turf. ..When an interest is widely shared among a great many people, so that relief will affect all of them, it may not be desirable simply to allow anyone who shares that interest to seek judicial relief in effect on behalf of everyone."
John Harrison, The Relation Between Limitations on and Requirements of Article III Adjudication , 95 Cal. L. Rev. 1367, 1368, 1372 (2007).
Justice Stevens pointed out that no voter did seek such relief in Citizens United : "It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering." Certainly the Court itself had no more standing than a litigant would have to raise a political question of this nature. Prof. Harrison continues:
"One of the primary purposes of political arrangements is to produce a mechanism for resolving disputes about widely shared interests....[W]ith respect to interests shared by the public, political actors should decide how to vindicate them."
The Constitution prescribes the remedy when the Court strays "off their turf" as it has done with such disastrous effect in its line of election cases.
As mentioned above, the Constitution gave Congress the power to determine what issues the Supreme Court can decide rather than vice versa. It did so understanding that conflict over the most fundamental issues must ultimately be decided by the people themselves in a democracy. The people can punish elected legislators at the polls who intrude on judicial powers by deciding individual cases, or they can force politicians to reclaim their legislative power from a Court that intrudes on legislative powers to corrupt the elected branches.
Congress is subject to the will of the people; the Court is not. The Courts are servants of the law not its master. It is precisely when the survival of democracy itself is at issue that the people must speak, and their voice prevail, not the views of five unelected politicians in robes who have done their best to subvert democracy and install the current plutocracy.
The people can require that Congress, now itself deeply mired in the Supreme Court-mandated system of political corruption, exercise its constitutional power to reject the Supreme Court's "money is speech" metaphor. If Congress decides that the Roberts 5 are "off their turf," and merely using the First Amendment as an excuse for intruding on the conduct of elections for the very purpose of undermining democracy, Congress has both the power, and more the duty, to stop them.
The Constitution wisely made Congress the judge of elections. This includes judgments about the role of paid special interest advertising as a valuable form of speech, or not, as compared to the fundamental importance of election integrity. All voters share an interest in both rights -- both the Court-created right to hear political advertising they think is valuable, on the one hand, and the Congress-protected right to have their vote count equally, and their unpaid voices heard above the din of paid political advertising, on the other. The balancing of these broad political interests places this question properly in Congress and not as a "case" trumped up for judicial resolution as Citizens United clearly was.
The Exceptions Clause does not override the First Amendment. It gives Congress the authority to remove from the Court the power to interpret the First Amendment on this narrow set of political issues involving elections. The Constitution gave the elected Congress power to reverse an unlected Court when it itself becomes the source of fundamentally unconstitutional decisions establishing an undemocratic election regime. It could be no other way in a democracy.
The true First Amendment intended to promote democratic conversation stays in its place; the distorted version created by politicized judges to drown out that conversation with money is overthrown. The Court's authority to enter this field of elections on the basis of this particular attenuated excuse is revoked. Congress remains bound by the First Amendment - but Congress gets to interpret its proper scope in the quintessentially political arena of elections, according to what the overwhelming majority of Americans believe it should be. The five politicized plutocrats who find themselves on the Court due to the power of those they serve, and who have been opposed by four dissenters in most of their election cases do not, in a democracy, get to tell the people how their elections shall be conducted.
8. No Exceptions to Congress' Exceptions Clause Power
Years ago, in declining to strike down a state law, Justice Oliver Wendell Holmes, Jr. used words applicable to the Roberts 5 interference in elections:
"Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, K. & T. R. Co. v. May , 194 U.S. 267, 270 (1904) (Holmes, J.).
There may be an unelected law professor who will disagree with Justice Holmes; but there are others who will say that Art III is unqualified in granting precisely the authority that Congress needs to serve as ultimate guardians of liberty and democracy from tyranny. A professor might propagate the judicial supremacy ideology transmitted to most law students. The slippery slope argument would contend that if Congress uses its unquestioned powers to rescue democracy from plutocracy by overturning the judicial legislation of the Roberts 5, it might also use the Exceptions Clause to overturn good judicial decisions. Rather than attempt to use Art III to distinguish between legislative and judicial powers, better to leave change to the election of politicians who will appoint better judges, the argument goes.
This argument ignores that the Supreme Court's elections decisions, unlike its other bad decisions, removes the very possibility for leaving reform to political processes. It has fundamentally corrupted those very processes. No President can be elected without the support of the 1% who pays the campaign expenses. No Congress will have a majority not beholden to the same paymasters. So no judge will be appointed to the Supreme Court who is not subject to these same influences.
By corrupting the elected branches that appoint federal judges, the Supreme Court since 1976 has effectively packed itself by creating a corrupt politics that assures appointment of increasingly plutocratic judges on the Supreme Court. As pointed out by Justice Stevens, "with the exception of Justice [Ruth Bader] Ginsburg -- I think every judge who's been appointed to the court since ...[Nixon appointee] Lewis Powell, has been more conservative than his [or her] predecessor." However, Justice Ginsburg's opposition to money in politics has been no stronger, and less vocal, than her predecessor Justice White, who vigorously dissented from both Buckley and Bellotti holdings that money in politics is speech, and corporations can spend freely on issues. On the issue of money in politics the judges without exception get uniformly worse, and it is now unclear if any judge on the Court would vote to overrule Buckley.
The judicial supremacy ideology ignores that Congress does not normally gain politically by opposing the Court. It is often in the politicians' own interest, as it is now, to pretend that the Supreme Court gets the last word on political issues. This permits the lucrative corruption to continue while Congress passes anemic reforms at best, and deflects criticism from itself onto the Constitution. Even where Congress does not profit as it does from continuing the corrupt electoral system established by the Court, as now, it is rarely more popular than the Court. It will require a movement well informed of the Court's role in causing the extreme and increasing inequality to force Congress to strip the Court of its illegitimate power.
Contrary to the slippery-slope arguments of their judicial-supremacist colleagues, some scholars criticize the "new mythology in which judicial supremacy is treated as the logical and inexorable endpoint of a beneficent progress." They urge that Congress should exercise its power precisely when the Court itself has placed Justice Holmes's "liberties and welfare of the people" at risk by abandoning the established teachings of previous Court rulings. The contemporary crisis created by a judicially-installed plutocracy is thus the very occasion for which the Exceptions Clause was designed.
A group of constitutional scholars who support "popular constitutionalism" would emphasize that it is the people themselves who must rescue democracy from 5 anti-democratic "kings," as Thom Hartmann has labeled the Roberts 5. See e.g. Stanford Law School Dean Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press; 2004); Mark Tushnet, Taking the Constitution Away from the Courts, (2000); Mark Tushnet, Popular Constitutionalism As Political Law, 81 Chi.-Kent L. Rev. 991-1006 (2006), in A Symposium on The People Themselves: Popular Constitutionalism and Judicial Review, by Larry Kramer, id. No. 3, (2006). Others challenge judicial review itself on the ground that "[i]n a society that takes democracy seriously, there is no privileged place for judicial proconsuls or their scholarly cohorts." Allan C. Hutchinson, A 'Hard Core' Case Against Judicial Review, 121 Harv. L. Rev. 57, 64 (2008)
One of the great constitutional scholars of a previous generation explained:
Except for the original jurisdiction of the Supreme Court [Art. III, Sec. 2, Cl. 2, Sentence 1] , every assumption of jurisdiction by every federal court since 1789 has been on the basis of an Act of Congress giving jurisdiction to that court. This ... is the rock on which rests the legitimacy of the judicial work in a democracy. "
Charles Black, The Presidency and Congress, 32 Wash. & Lee L. Rev. 841, 846 (1975) (emphasis added). Black recognized that it was essential in a democracy for the Supreme Court to derive its power, with very minor exceptions, from the people through their representatives in Congress, not from the Court's own interpretation of its powers under the Constitution.
In preparing to advocate use of Congress's express Art III authority to legislate money out of politics as the necessary first step toward rescuing democracy from plutocracy, the first questions to ask are:
A) Who must an aroused public persuade about Congress' Art. III authority, and,
B) What is their historical view of this question.
The answers are: A) quite clearly the people need to persuade elected members of Congress, not unelected law professors, and
B) this should be easy since both houses of Congress have separately taken a clear position on this question. They used their Article III power in the very same First Amendment context when they voted to strip the federal courts of jurisdiction:
1) over cases relating to 1st Amendment restrictions on voluntary school prayer, a bill which passed in the Senate, but not the House.( Prayer in Public Schools and Buildings Federal Court Jurisdiction: Hearings on S. 450 Before the H. Comm. on the Judiciary, Subcomm. on Courts, Civil Liberties, and the Admin. of Justice, 96th Cong. (1980)); and
2) over any 1st Amendment challenge to mandating students' involuntary recitation of the Pledge of Allegiance by the Pledge Protection Act, which passed in the House as H.R. 2028, 108th Cong., 150 Cong. Rec. H7478, but not the Senate.
Neither of these authoritarian efforts to impose thought control on school children had anything to do with political questions, intrusion on express legislative powers, installing plutocracy, or the survival of democracy. They both involved judicial recognition of individual liberty to be free of state religion or state mandated patriotic expression. Hence they were far less legitimate targets for the Exceptions Clause than would be the "money is speech" legal gimmick used by the Court for intruding on Congress' own assigned powers over election integrity.
But by enacting these bills each house of Congress has clearly established its interpretation of the Exceptions Clause as granting them very broad power to make exceptions to the First Amendment jurisdiction of the Supreme Court. They simply lacked -- for good reason - the political support of the People to get these particular authoritarian applications of their undisputed power enacted.
The next question is, What has the Supreme Court itself said about Congress' Art III, Sec 2 power? The Supreme Court has never interpreted the Exceptions Clause to deny Congress the power to make exceptions to its appellate jurisdiction. For example, Congress originally left out of the Court's jurisdiction all criminal cases. In United States v. More , 7 U.S. (3 Ranch) 159 (1805) the Court held that Congress's failure to provide for appellate jurisdiction over federal criminal matters in the 1789 Judiciary Act barred such jurisdiction.
In a later case the Court made a sweeping statement supportive of Prof. Black's view: "By the constitution of the United States the Supreme Court can exercise no appellate power unless it is conferred by act of Congress. '' Barry v. Mercein , 46 U.S. (5 How.) 103, 120-21 (1847). In In The Francis Wright, 105 U.S. 381, 385 -386 (1882), the Court elaborated on the source of appellate power: "What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control.... Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not.''
After the Civil War, when it feared that the Court might hold military reconstruction of the South unconstitutional in a pending case, Congress quickly repealed the statute on which the Court's jurisdiction depended. After hearing argument on the constitutionality of the repealing act, the Court in Ex parte McCardle , 74 U.S. (7 Wall.) 506 (1869) unanimously upheld the jurisdiction-stripping law and dismissed the appeal for lack of jurisdiction, even though the writ of habeas corpus, jurisdiction over which is not subject to Art III stripping, was involved in the case.
More recently the Court rejected an attempt by Congress to strip the judiciary's authority over the inherently judicial power to issue a writ of habeas corpus. This power arises under the federal courts' writs jurisdiction, not the Supreme Court's appellate jurisdiction. Hence the question arose not under the Exceptions Clause (Art. III, Sec 2, Clause 2) but under jurisprudence involving the Constitution's Suspension Clause (Article I, Sec. 9, clause 2). The latter provision protects an individual right of habeas corpus secured by the Constitution subject to a single narrow exception that did not apply. But in Boumediene v. Bush, 553 U. S. 723 (2008), Scalia, J., wrote the dissenting opinion for the Roberts Court extremist bloc of four. These New Four Horsemen objected to the Court's invalidation of a statute that curtailed the federal courts' habeas jurisdiction in violation of the Suspension Clause. The four described the majority decision as the result of an "inflated notion of judicial supremacy," a critique that does not seem to trouble the extremist bloc when they repeatedly trespass on Congress' exclusive authority to regulate and judge elections.
Justice Scalia goes on to proclaim:"Our power to say what the law is is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction." Thus the most activist judges in interfering in elections are also the most extreme in upholding Congress' absolute authority to strip the Court' jurisdiction -- when that is needed to get the authoritarian result they want. Plutocrats see civil liberties for any but themselves as a nuisance for their hold on power. These four judges concede this judicial jurisdiction-stripping power in a case that went well beyond stripping of jurisdiction over political questions under the Exceptions Clause in order to re-balance the separation of legislative from judicial power. Habeas corpus is arguably the irreducible judicial power.
9. Enforcing the Exceptions Clause Against Judicial Supremacy
The Exceptions Clause, Art, III, Sec 2, Cl. 2, expressly states that Congress has the broad power to make exceptions to the Supreme Court's jurisdiction, other than in a few areas that are not relevant. There is no express statement elsewhere in the Constitution, as amended, that qualifies this congressional power over appeals to the Court. Any views to the contrary by unelected law professors are more political than legal. But even those views do not argue that Congress could not exercise its power for the purpose of restoring the political question doctrine. The Supreme Court itself upheld the political question doctrine as an essential constitutional restraint on its jurisdiction defining the appropriate separation of legislative from judicial power during most of its history, since the legendary Marbury case and consistently down to 1976.
Congress has acted on their consistent interpretation that they can strip the appellate jurisdiction from the Court on First Amendment issues, as well as many other issues that are far less suitable targets for jurisdiction-stripping under the Exceptions Clause than would be political questions and maintenance of the well-established boundaries for the separation of powers concerning elections.
The Supreme Court has ruled that Congress can strip its jurisdiction in comparably important areas. It has said it has no power to hear appeals that Congress has not itself given by statute. It has never ruled that Congress cannot strip jurisdiction under Article III by simply amending those statutes. To convince the Roberts 5 not to start now, the law stripping the Court's jurisdiction itself will need to contain very strong incentives, clearly threatening their impeachment and even the prosecution of justices who defy the law and exceed the scope of their constitutional authority by continuing to encroach upon Congress' legislative powers.
An early Jeffersonian, Senator Giles, of Virginia, said in 1804 of Marbury v. Madison
"if the judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional, it was the undoubted right of the House of Representatives to impeach them, and of the Senate to remove them, for giving such opinions.... And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."
Hamilton supported this same view in Federalist 81.
"There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by [impeachment]."
The four most extreme judges among the Roberts 5 would be handicapped as hypocrites willing to distort rules to reach results for their favored class should they deny Congress' Exceptions Clause authority in the context of restoring the political question doctrine after upholding it in the far more extreme and unjustified context of suspending habeas corpus in Boumediene. There is no reason to believe they are above engaging in such hypocrisy, however.
The fifth judge, Kennedy, who wrote the Boumediene decision, would not necessarily be a hypocrite if he were to refuse to enforce a jurisdiction-stripping law, but is nevertheless unlikely to risk prison or impeachment for the sake of empowering plutocrats.
Some hold an absolutist view of judicial supremacy that exceeds even Justice Marshall's view in 1803. Law professors or lawyers whose self-importance is tied to their intellectual influence on an all-powerful but unelected Court may believe the court is invested with infallibility from some higher source. They may argue that it is not proper for Congress to exercise its Exceptions Clause authority over the Court. So will some unprincipled Republicans. But Republican presidential candidate Gingrich recently issued a fairly well-researched position paper stating a reasonably complete legal case against judicial supremacy, while also containing some brief insertions of glaring flaws and factual errors with respect to the proper application of Congress' powers over the Court. It is Republicans who have been the most aggressive in exercising Exceptions Clause authority in a variety of circumstances, while liberal Democrats are strangely susceptible to the anti-democratic judicial supremacy ideology. Republicans like Gingrich will also have the weakness of hypocrites if they were to oppose Congress' coercive exercise of power over the Supreme Court on the subject of election integrity.
Prof Keith E. Whittington, in his award winning history of judicial supremacy, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007) criticizes the myth of judicial supremacy in his discussion of the maintenance of the constitutional system that is the whole country's heritage, not just that of judges and lawyers.
"[S]ensible claims on behalf of the utility of judicial review for maintaining constitutional forms have been transmogrified into a demand for judicial supremacy. ... Constitutional maintenance becomes a bloodless and technical enterprise best conducted by the legal intelligentsia.
"This vision of constitutional maintenance is neither desirable nor realistic. Constitutional maintenance is above all a political task. As such, it must be considered in political terms. Constitutions cannot survive if they are too politically costly to maintain, and they cannot survive if they are too distant from normal political concerns."
The Court-mandated system of money in politics is a question of Constitutional maintenance. It would be far too costly to have to enact a constitutional amendment when the Court itself creates a doctrine based on a view of speech that defies the country's universal (95%) understanding that big money enters politics for the sole purpose of the large financial returns that it earns by corrupting government, not to enhance legitimate public debate of issues.
Roosevelt challenged "a judiciary so independent that it can deny the existence of facts which are universally recognized." Senator Robert "Fighting Bob" LaFollete, in defending Roosevelt's "court-packing" proposal complained "the Court ... has become a dictator and we have succumbed to a fascist system of control." (Shesol 350)
Because there must be limits on a Court with a political agenda, like the current Court, its authority must be subject to democratic control. Prof Whittington recounts the indisputable fact that judicial supremacy has been, throughout American history, a political not a legal question. That is why Congress was given the power to respond to political demands with a simple law. It is a political question whether a comfortably corrupt Congress can be forced to use that power.
Judicial supremacy is a political ideology that runs deep in the "legal intelligentsia" who are empowered by it. When applied to support judicial decision of political questions (i.e. judicial exercise of legislative powers) against Congress' constitutional power to change those decisions, the ideology becomes clearly hostile to democracy.
Some, like Prof. Lessig, apparently blinded by the myth of judicial supremacy yet credibly concerned about the Court's politicized elections decisions, have leveled a broad ranging attack on the Constitution, rather than the Court. He's like a drunken brawler who defends himself by punching an innocent bystander. Other misguided advocates similarly claim the Constitution needs amending. Such a strategy is orders of magnitude more difficult than winning and enforcing jurisdiction-stripping legislation that would also restore and complete campaign finance legislation which is currently unenforced as unconstitutional.
Asking the Supreme Court politely to look at a new constitutional text when illegitimately deciding political questions will not itself predictably get money out of politics, compared to comprehensive integrity legislation that simultaneously removes the Court from the field.
The Constitution nowhere grants the Court power to entrench a plutocracy, or to resist Congress's stripping of its jurisdiction in order to continue doing so. Whittington shows that the solution lies in politics, and a political opposition aimed directly at an overreaching Court, not diverted away to adjusting constitutional arrangements and wordings that are not directly enforceable and would be interpreted by the same offending judges and would have the effect of justifying and ratifying their violation of the separation of powers.
The existing arrangement of power relations under the Exceptions Clause provides a legitimate direct channel for immediate political struggle without the need of taking an extended misguided detour into rewriting the Constitution which will make no reform in and of itself, and might well be used by the Court to undercut the complete solution contained in the 1789 Constitution.
Forcing Congress to use its Exceptions Clause authority will admittedly require a powerful, even unprecedented, political struggle, albeit considerably less than it would take to wage the illusory campaign to change the Constitution. It was true in 2003 that "[a]t least since the 1930s, no bill that has been interpreted to withdraw all federal court jurisdiction with respect to a particular substantive area has become law." Richard H. Fallon, Jr. et al., Hart and Wechsler's the Federal Courts and the Federal System 322 (5th ed. 2003). This period defined the era of the Court's highest prestige which it is now time to bring to a rapid close.
Times have changed. The Roberts Court should not be allowed to spend any more of the valuable political capital accumulated over 40 years since the New Deal by the dedication of far more prestigious judges who realized much of the Constitution's promises of justice, equality and democracy, a magisterial heritage which was perpetuated on a delicate balance like a teetering bicycle for an additional 30 years by its own momentum. The Roberts 5 politicians in robes now in control of the Court both exploit and embarrass the Court's prestigious heritage. The political capital is exhausted. The bicycle is on the ground. The Roberts 5 need to be exposed for the outright enemies of the Constitution and agents of plutocracy that they are, and denied the respect they inherited from their predecessors without earning it.
Their unconstitutional decisions, flaunting precedent, undermining democracy, installing tyranny, have made them subject to the Exceptions Clause power that remained dormant throughout the preceding era of a largely democratic judiciary.
Justices Antonin Scalia (Reagan appointee) and Clarence Thomas (Bush I appointee) have for many years anchored their jurisprudence to the extreme right of most judges who ever sat on the Court. They each espouse idiosyncratic philosophies which they use erratically to serve their plutocrat friends. But more moderate Republicans and the minority of Democrats held on for 30 years after 1976 to set a generally more centrist course in many areas of law most visible to the public. This delicate balance ended under President George W. Bush. Bush II, like Nixon, overtly sought out the most extreme right wing judges in service of corporate interests that he could place on the Court. Bush's two Supreme Court nominees have been as great a disaster for the country as were his illegal and fraudulent wars of aggression, his energy and environmental policies, his economic and fiscal policies, and his incompetent response to Hurricane Katrina.
With the appointment of John Roberts, Bush proved that a knowledgeable, successful and charming extremist right-wing ideologue willing to obfuscate his views during confirmation hearings would not be effectively opposed by Democrats. Democrats in any event had already given away their filibuster power to Senate Republicans in one of their typical "Getting to Surrender" deals that President Obama would later elevate to an art form. See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2008) 309. Roberts was approved by a vote of 78-22.
Bush nominated 3d Circuit Judge Samuel Alito to take the seat of retiring Justice Sandra Day O'Connor who for many years exercised the moderate swing vote on the Court with one finger to the wind of popular opinion. Alito proved that an uncharming extremist right-wing ideologue unable to disguise his judicial record and totally unresponsive to questioning during confirmation hearings would also not be effectively opposed by Democrats. Alito was approved 58-42 in 2006.
Democrats who had the votes to stop Alito had they filibustered, refused to filibuster possibly because the Republicans threatened the "nuclear option" of abolishing the filibuster rule if they had. Of course, nothing could have been better for the Democrats. With the abolition of the filibuster rule by Republicans, Democrats would have been able to rule after their predictable victories against the highly unpopular Bush administration in 2006 and in the 2008 elections. Instead the Democrats both acceded to the Court turning hard right, and also hobbled themselves from governing after their 2008 victory, due to unprecedented use of filibusters by Republicans. This is the standard Democratic practice of tying their own hands to feign capture by Republicans so avoid fulfilling campaign promises that would offend their paymasters.
When the Democrats' turn came to appoint justices they selected two middle of the road judges, Sotomayor and Kagan, to replace Republicans Souter and Stevens. Time will tell if they are an improvement. Democrats never considered threatening their own "nuclear option" to get judges appointed who would be committed to reversing Buckley v Valeo, or at least overturning the highly unpopular Citizen's United, lost by Kagan as Solicitor General, arguing her one and only case. This is a litmus test that must be applied to any future nominations, but was not applied by Obama and Senate Democrats.
John Roberts claimed in his confirmation hearings that a judge was just an umpire. But he has proven to be an umpire who moves the fences, the bases and the pitcher's mound when plutocrats are at bat. On his field the law provides only a vocabulary for decrees that uniformly serve the powerful. His colleagues Alito, Thomas, Scalia, and usually Kennedy as well in any matters important to plutocrats, adhere to the same Roberts school for umpires. Though the four dissenters have generally presented a united front against the Roberts 5's election decisions, after Stevens retired it is not clear that any justice now on the court -- for the first time since it was decided - would vote to overrule Buckley v Valeo.
Waiting for change of personnel to restore the balance of power on the Court is a slow and uncertain strategy due to the effects of corruption on the composition of the Court since 1976. There is no reason to expect an improvement of the quality of appointments from the corrupt political class entrenched in all branches of government. Jurisdiction-stripping legislation backed by the threat of impeachment in case of violation is a more immediate and more easily obtained political goal than influencing the course of judicial appointments.
Public support for impeachment will depend on attitudes toward the Roberts 5 who are at the source of the problem of money in politics. If they should violate jurisdiction-stripping legislation the political will for impeachment will depend upon the strength of the same political movement required to obtain the legislation.
The Exceptions Clause of the Constitution provides the key for getting the Supreme Court out of elections as a prerequisite to getting money altogether out of politics.
The real test of whether Congress' Art III powers may be used to exclude politicians in robes from influencing elections, is not the legal arguments, which are in any event rooted more in political philosophy than law. It depends instead on whether the many disenfranchised by the money, the 99%, gain the political power to force Congress to exercise its Exceptions Clause power on this issue.
The fundamental structure of the Constitution provides checks and balances to assure that each branch stays within the scope of its proper function, and that "the People" have the ultimate power to guarantee a form of government that has the "consent of the governed," in the words of the Declaration of Independence. The Founders established the separation of powers as a necessary bulwark against arbitrary power, tyranny as they called it. Unelected judges should not be legislators on broad political questions governing all citizens who are perfectly capable of voting for the rules they desire. Legislators, who are responsive to the will of the people, should not be judges of cases involving particularized legal interests protected by law but that might be opposed by majority interests, biases or passions. The goal of this separation of powers is to uphold the rule of laws enacted with the consent of the governed against the reign of arbitrary power when applied to particular cases.
The Roberts 5 venture into legislating the rules for conduct of elections so as to determine electoral outcomes in favor of plutocrats egregiously exceeds the proper scope of a Court's authority. It is the obligation of Congress to restore the line restraining the Court's unchecked political power to where it resided throughout most of American history. After 35 years it should be clear that the Court majority will not restrain itself. They have only grown more brazen, especially since 2006. The Exceptions Clause authority was a fail-safe given Congress by the Constitution to address this very problem. Due to the Court's unconstitutional interference in elections, Congress has become too corrupt to exercise this power. It is up to the People to make them do so.
The 10 th Amendment left certain unspecified powers "reserved " to the People." What non-constitutional power could that right refer to if not that right of the people first declared in the nation's founding document written by Jefferson in 1776 to change any form of government that lacks the "Consent of the Governed?" Polls show that vast majorities correctly deny that the current corrupt government possesses the necessary consent of the governed. The People have a role under the Constitution to restore the basis for consent by restoring elections that are not distorted by money. It is the People themselves who have the power and legal right under the Constitution to force Congress to exercise its legal authority to eliminate the Court's perverse and unconstitutional influence on elections.
If voters can seize the necessary political power by prioritizing the single issue of the disenfranchisement of the many by the money in politics, there is more than enough legal justification to avoid any credible legal argument from Congress that they lack the authority to strip the Court of jurisdiction over these political questions, as demanded by the People. The People have nowhere consented to be governed by the corrupt money-driven election law enacted by an unelected Supreme Court. Congress also has the power to force the Court's certain compliance by making non-compliance an impeachable and criminal act as a matter of law.
It will only require voters to force Congress to exercise these powers by prioritizing this goal ahead of and to the exclusion of any other political demand until it is achieved. A nonpartisan minority large enough to swing elections, about 20% of voters, could achieve this reform of getting private interest money out of politics.
Disenfranchised women and African-Americans prioritized suffrage as their sole issue until it was achieved. The 99% can achieve their own re-enfranchisement by getting money out of politics far more easily and quickly by simply employing the same focus as these earlier heroic movements. Enfranchisement is the only issue, when the leading scholar of the correlation between influence and affluence reports that extensive data shows "influence over actual policy outcomes appears to be reserved almost exclusively for those at the top of the income distribution." What is the point of addressing any other issue when there is no influence by the many to do anything about these other issues that adversely affect them?
Attempting to amend the Constitution to get corporations or money or both out of politics would not only postpone and prolong the effort to the point of exhaustion, it also sends the dangerously erroneous message that the people do not already have ample constitutional power to force their elected representatives to adopt whatever legislation is necessary to get the court out of elections and private interest money entirely out of politics.
If the text of any such an amendment resembles Senator Sanders' confusing text, the Court could seize it as an excuse to invalidate the necessary statutory reforms that would otherwise be outside their jurisdiction. A constitutional amendment cannot improve the current situation, since Congress already has greater authority now than the proposed amendment would purport to give. But the amendment effort could do much to harm the necessary goal of getting a comprehensive law enacted and enforced that will succeed in getting money out of politics in the immediate future.
The apologists for plutocracy cannot twist the words of the Constitution so far as to prevent the rescue of democracy itself from an entrenched plutocratic Court. This is ultimately an issue "the People" of the 10th Amendment will decide. Their effort will fall well within the text, history and past judicial and congressional interpretations of the Constitution, not to mention the People's pre-constitutional power sanctified in the Declaration of Independence and preserved in the 10 th Amendment, to overthrow the tyranny of plutocrats and restore a political order that reflects the consent of the governed.
The beauty of the Constitution is that it brought all this power of the People within its four corners. There is no need for an American who seeks the restoration of democracy to stand outside the Constitution and throw bricks at it. Those who are denigrating the Constitution by advocating amendments or a convention to trash it are doing an extreme disservice. They attack a Constitution which they show little sign of understanding. Meanwhile they are misleading people to stand outside its tradition and authority and therefore implicitly in conflict with, rather than enlisting the support of, the armed forces and officials at all levels of government who have sworn support to the Constitution.
It would be improper to start a political campaign in the face of contrary letter or spirit of the Constitution. But both the letter and the democratic spirit of the Constitution, as it currently exists, is firmly on the side of a people's campaign to force Congress to get the Court out of elections and money out of politics. There is no need to amend or rewrite the Constitution before the people may exercise their power. Facile insults to the Constitution from professional activists who allege that the Constitution is not up to the task proceed from ignorance of what is in the Constitution. The Constitution already provides the people the power they can exercise right now by taking effective action to force Congress to enact specific legislation as the price of reelection in 2012.
Part 2 How to Force Congress to Enact Comprehensive Legislation to Get Money Out of Politics (MOP) and Enfranchise the 99%
[The forthcoming Part 2 of this article will discuss the enhanced power of single issue voting in a first past the post electoral sysem. Enfranchisement has always been the focal single issue of every movement of disenfranchised groups, as argued in Part 1.
Realization encouraged by the Occupy Movement that money in politics has disenfranchised the 99%, that the corrupt Supreme Court-mandated electoral system is supported by both parties, and that an overwhelming majority of incumbents are mired in this system allows transition to the electoral strategy of issue voting. Issue voting abandons reliance on serially unrequited hope in the least trusted group of people in the country. It more rationally choses to rely on the transparent knowledge that about 10-20% of voters aggregated in support of single issue voting will be able to oust the average member of Congress who refuses to sponsor the comprehensive Occupy/MOP legislation prior to the next election.
The Occupy Movement already has support in the range required to implement a single issue voting strategy, it has the non-partisan, candidate-free, movement values to implement the strategy and the digital democracy skills to aggregate its supporters online into a fully transparent single issue force.
This voting strategy can only be used to support a comprehensive solution to the root cause of all other policy distortions, supported by a legitimate strategy that has no contingencies other than the amount of energy - i.e. the level of voter pledges - invested in the strategy]
Footnote The Citizens United decision had nothing to do with "corporate personhood," contrary to the false assertions of many soundbite analysts and the fundraising pitches of professional activists. As the Roberts 5 based the decision on the right of real people to hear all the speech that money can buy, "corporate personhood" is not even a side issue. The Supreme Court's 1978 decision in Bellotti expressly eschewed reliance on corporate rights in authorizing corporations to spend money on issue campaigns. As explained here, the concept is an antiquated 19th century donctrine that has had nothing at all to do with the Court's decisions allowing money into politics since 1976.
The actual issue in Citizens United was the extension of the Bellotti ruling to allow private interest money from any source to influence elections, not just issue campaigns. How the Roberts 5 framed its decision as protecting the rights of voters whose voting rights are actually diminished by their decision rather than the rights of the corporations who benefit from their decision is key to understanding what the solution to the decision must be: revoking the power of a duplicitous Court operating far past the proper boundary of its legitimate authority, and emphatically not amateur tinkering with a Constitution that is not broken.
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 plutocrats in the US.