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

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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.

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A creative thinker on matters of public policy and art, and a principal researcher. Current focus of work is on the strategies democracies can use to protect against overthrow by corruption, with immediate attention to the mess being made by (more...)
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