Hello--My name is Judge Moishe Pipick. I have a tough decision to make and I need some help in the matter. The decision I must make is: "Who, exactly has the right to express his or her opinion in the voter's booth?" My decision is related to a subject that has been in and out of the news in the past few years. You might have heard a presidential candidate use the term "the Citizens United decision." This was a puzzling 5-to-4 majority Supreme Court decision involving a company called "Citizens United" contesting a Congressional act prohibiting corporations from airing commercials for political candidates within 30-60 days of a federal election. It had been designed by Congress to prevent corporations from inundating the airwaves with political commercials in an effort to purchase elections for their pet candidates.
By the time that the five-justice majority was done, PACs or political action committees would still to be allowed to accept unlimited amounts of money collected from secret donors to be distributed to their candidates of choice. This "privilege" would be protected by the First Amendment of the Constitution under the auspices of "freedom of speech," that is the expression of the donor corporation opinion or approval of a candidate. According to the majority Court decision, however, this special "privilege" of freedom of speech would not be extended to an individual donor's very same opinion if expressed at the polls in the form of something called a "vote." In short, freedom of speech is not a "right," guaranteed to a U.S. citizen as a voter, but a "privilege" granted only to those who agree to pay money to candidates.
In fact, this concept has been advanced time after time by supposed "Constitutionalists" or "originalists" such as Antonin Scalia and his four apparent fellow stooges on the Supreme Court. In their drooling contempt for American voters. According to their theory, the original authors of the Constitution omitted any reference for the "right" of the individual to to vote. In fact, the original authors neglected to state just how their legislators from each state were to be chosen; those same legislators needed, in turn, to choose the eventual electors of the president and vice president of the nation. This "omission" was apparently corrected in the Seventeenth Amendment, finally ratified in 1913. ("The Senate of the United States shall be elected by the people thereof...") The "original" authors of the Constitution had included only legislators and electoral-college members as voters. Apparently, any other rights of citizens to vote were to be left to the states to decide. According to their theory of "autocratic selection," originalists alone have been endowed by their creator with the special privilege of ignoring any amendment to the constitution they choose, because the amendment was not in the "original" Constitution. Thus their decision basically confirms that states are in charge of federal elections and can make it harder for their citizens to vote and may even override the federal government's First Amendment duty to protect the voter's right to express his opinion at the ballot box.
To anyone but a Supreme Court justice, an arrogant constitutional lawyer, the ACLU or various other disinterested players, this would appear to be a literal, if not classic example of a "protection" racket. The only way a voter's opinion can qualify as protected under the First Amendment is to "pay" for that protection! Now, before you say that what I've said is "parsing" and ask "why should I care?," consider what has been occurring in so many Republican-controlled states in recent years. Not only have thousands of congressional districts been absurdly gerrymandered or drawn up in such a way that the party winning the clear majority of votes loses a significant number of congressional seats (a clear nullification of the voters' expression of opinion), but draconian laws and practices have been employed in these same states to keep specific groups of people from voting. Only recently, the courts finally ruled that it was somehow unfair to honor an NRA I.D. but not a state-college I.D. at the polls. Ya think maybe the opposition party might do the same sort of thing to you the next time they get into power, Texas Republicans?
To make matters worse, although it can be argued that the First Amendment protects people, corporations, parrots and even Mr. Ed's freedom of speech, the same cannot be said as confidently of the Fourteenth Amendment (Equal Protection). Over and over the Court seems to have ruled that the amendment applies only to "people" and not corporations. So if people have "rights" under the Fourteenth Amendment that corporations do not, how do five justices on the Supreme Court decide that "corporations" should have "rights" that "people" don't. Shouldn't it be the other way around?
Well, as we have seen, if you were Antonin (Nino) Scalia you might claim that voting is nothing but the meaningless act of pushing of a button. If you were Clarence Thomas, you might say "Huh? I'll have to ask my lobbyist wife, Virginia, just how she wants me to vote. You know, I need the money." If you were Samuel Alito you might just click your heels and whisper "I wish I were in Kansas, I wish I were in Kansas." Justice Anthony Kennedy might ask Chief Justice Roberts "How do Charlie and David (Koch) say we should vote?"
In the end, I think the two questions that need to be answered before I make my decision are:
(1) To the five majority Supreme Court justices: "From which end did you just express that opinion, your front end or back end?" and
(2) To the reader: "Are the "Five Stooges" better slapstick comedians than "The Three Stooges?'"
Allen Finkelstein, 4/14/17