By joining Roberts' opinion, instead of Ginsburg's, the two erstwhile votes against corruption endorsed both the "money is speech" doctrine of Buckley and also that the doctrine should be applied for the corruption of elected judges, in addition to elected politicians. This left only two justices in the liberal opposition to perhaps the most extreme of the entire pro-corruption jurisprudence of the Court. White, as reconfirmed by The Florida Bar, undermines the due process of law, the country's last institutional defense against the tyrannical impact from the systemic corruption of the two elected branches. After legalized judicial corruption is fully rolled out, which is already well underway in many states, for example like Wisconsin where the Kochs are active, the country will be a kleptocracy in fact as well as in largely Roberts-created principle.
McDonnell completes Roberts' cooptation of the liberal justices to the dark side. For the first time a unanimous Court has subscribed to Buckley's money is speech doctrine, albeit if only by deceptive implication. Dissents to these kinds of decisions have been important throughout history to cast an anchor to have some continued purchase on democratic principles. At its inception, Justice White wrote a powerful dissent from Buckley showing the "money is speech" doctrine to be as intellectually fraudulent as it sounds. He explained "money is not always equivalent to or used for speech" even in politics and showed how Buckley's Robin Hood defense could be used to overturn nearly any law. White reliably continued to write similar dissents form later pro-corruption cases. Justice Stevens who was the last judge appointed to the Court before Buckley was decided, also powerfully rejected the "money is speech" doctrine in opinions insisting that: "Money is property; it is not speech." His dissents were joined by other justices until he retired just after issuing his powerful, comprehensive dissent from Citizens United, which was joined by four justices.
McDonnell confirms what 2016 has taught about other elite-run institutions of a corrupt system, whether it be primary elections or the FBI. There are no such solid defenders of democracy left on the Supreme Court who were appointed, like White and Stevens, before the Buckley era of systemic corruption. Roberts has outsmarted the soft-headed liberals appointed by Obama and Clinton to join in protecting fellow elites. More committed to identity politics than democracy, they have now joined in the judicial usurpation of legislative jurisdiction so as to undermine anti-corruption laws for legally vacuous and both logically and factually deceptive reasons.
This "treason to the Constitution," Cohens v Virginia, 19 U.S. at 387 (1821), indicates that it is even more important than it was previously to demand that Pres. Obama make a recess appointment of an intellectually strong progressive justice to the Court who can provide immediate leadership to the current vacillating liberal contingent. There is no anchor left to democratic values on the current Court. The corruption is total. With leadership, these weak justices may not have capitulated to the Roberts-led devotees of deceptive reasoning, judicial supremacy and systemic plutocratic corruption. At the very least there may have been a powerful dissent exposing Roberts' dishonesty.
If Obama had made such a recess appointment at the first opportunity, under pressure from the Sanders campaign, after Scalia's February 13, 2016 death, this appallingly corrupt and deceitful decision (argued on April 27) might even have been avoided. This solution remains available if Sanders had the courage to make it his litmus test for his intended support for a plutocratic candidate, much as LaFollette under closely similar historical circumstances in the Progressive Era bargained his support for the segregationist Woodrow Wilson in exchange for the appointment of the highly capable anti-supremacist progressive Louis Brandeis.
The other solution that must now come to the fore is legislation not just to overturn McDonnell, but at the same time to solve this era's crisis of democracy caused by a corrupting and judicial supremacist Court. Now that all eight justices have shown their solidly pro-corruption and supremacist colors, the most realistic solution is not to depend solely upon appointments, but rather to strip the Court under the Constitution's Article III of jurisdiction to make any decision about the validity of legislation concerning the political question of official corruption, whether asserted under the bogus First Amendment "money is speech" doctrine, or otherwise. This again should be a litmus test for progressive support of members of Congress in the 2018 election. Unlike several less effective alternatives to change the Court, such legislation requires only a majority vote of Congress rather than a supermajority.
Rob Hager is currently writing a three-part book assessing proposals for ending the political influence of special interest money. The current eLibrary draft of the first part, Hillary Clinton's Dark Money Disclosure "Pillar," is available online
(Article changed on July 6, 2016 at 04:25)