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

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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

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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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