Send a Tweet
Most Popular Choices
Share on Facebook 53 Share on Twitter 9 Printer Friendly Page More Sharing
Exclusive to OpEdNews:
OpEdNews Op Eds    H1'ed 1/13/12

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

By       (Page 3 of 11 pages) Become a premium member to see this article and all articles as one long page. (View How Many People Read This)   20 comments
Author 54873
Message Larry Kachimba

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.

Next Page  1  |  2  |  3  |  4  |  5  |  6  |  7  |  8  |  9  |  10  |  11

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).


Must Read 15   Well Said 9   Supported 8  
Rate It | View Ratings

Larry Kachimba Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

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...)
Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Writers Guidelines
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEdNews Newsletter
   (Opens new browser window)

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

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

Five reasons why a constitutional amendment is the wrong way to get money out of politics

Roberts 5 strike another blow for plutocracy: Arizona Free Enterprise Club v. Bennett

Our corrupt politics is all about money: Reviewing Ezra Klein's NYRB Lessig review

Does the Same First Amendment Apply to the 1% and the 99%?

How not to make Congress more responsive to voters: the Congressional Reform Act of 2011 hoax

To View Comments or Join the Conversation: