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Why Does the Massachusetts Governor Support the Supreme Court on McCutcheon?

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Message Rob Hager

Governor of Massachusetts Deval Patrick said in a radio interview on April 15, 2014: "I respect the authority of the Supreme Court to make those decisions" that have corrupted politics, like McCutcheon . I write this open letter to the Governor to clarify his position, and to express opposition to this statement. 

To "respect" authority in the abuse of its power is to align oneself with and further enable that same abuse. Experience shows that contesting that authority, especially in the case of the U.S. Supreme Court, has the effect of curbing it.

Converting a democracy into a plutocracy is a crime of constitutional dimensions. If the governor does sincerely believe that the Roberts court legitimately has the power to amend the Constitution for this purpose, I would like him to point out precisely where in the Constitution that power is given to five unelected judges. Article V seems to have a different, much more difficult, process in mind than the vote of a single Supreme Court justice in a 5-4 decision. The constitutional process involves an intentionally difficult 2/3rds vote of each house of Congress, and then ratification by three-fourths of the state legislatures. The elected representatives of those bodies, through their legislative acts, give not the remotest sign of agreeing with the Roberts 5 about the constitutional validity and importance of keeping big money out of politics.

Five judges' radical amendment of the Constitution by their series of seven decisions that you "respect," over the opposition of the other four judges on the Court, flouts the established process for making such an enormous constitutional change. 

If the governor disagrees that the five judges who constitute the Roberts court have amended the Constitution, then I would like to have him point out precisely where in the Constitution it says that Congress (and therefore the people) lack the constitutional authority, as the Court ruled in McCutcheon, to prohibit the wholesale purchase of influence from, and the resulting systemic corruption of government by, political parties. As the Solicitor General pointed out in arguing McCutcheon, there is no other likely result from legalizing large biennial contributions to parties, and their candidates, of an aggregate amount as high as $3.6 million per plutocrat, than "a very real risk that ... the government will be run of, by, and for those who help put the $1.5 billion together to run a congressional campaign."

Governor Patrick did rightly protest that "I don't think that is what the founders had in mind, I don't think that that is what most Americans have in mind in terms of a healthy democracy, and I don't like the decisions of the Supreme Court" on this subject of money in politics. That statement would, no doubt, be overwhelmingly popular with Governor Patrick's constituents. But it remains just the opinion of one who chooses to remain a bystander rather than to use his elective office to be an effective actor when at the same time as making these agreeable observations Governor Patrick publicizes his "respect" for the authority of judges to make illegitimate decisions contrary to these views. 

If the Supreme Court has the authority to read the Constitution to say anything five undistinguished occupants of seats on the Court say it means, however preposterous, then there is nothing effective the people can do to get their Constitution back in the foreseeable future from five political operatives in robes. But if the Roberts 5 lack this authority then there are common legislative remedies that can be pursued right now to restore the Constitution. 

The framers did not consider judges to be saints above the law and the Constitution. Rather they gave Congress the authority to enact checks and balances such as, in Article III, Sec. 2, making exceptions to their power to hear cases they have no business deciding, such as political questions about election integrity and public corruption.

Unlike the Roberts 5 judges who in McCutcheon gave parties the constitutional right to be systemically corrupt, the framers who wrote the Constitution in fact disliked political parties. The Constitution gave parties, as such, no rights. James Madison in The Federalist No. 10, and other framers of the Constitution, feared that parties would be used for this very purpose of corruption that McCutcheon has now ruled to be legalized by nothing other than the framers' Constitution. No amendment to the Constitution other than that made by these judges gave parties constitutional rights to corrupt representative government, or any other rights as parties. The Constitution gave parties no more rights than those of the individuals who constitute them. But now according to Justice Roberts parties have the right to directly take money for policy even if the individual politicians who constitute the party do not. Roberts' rules seem to regard parties too big to regulate by means of limiting the size of contributions they can take.

As a member of one of those parties whose systemic corruption has now been legalized, Governor Patrick needs to make his position clear in order to avoid any appearance of a conflict of interest. By conceding the legitimacy of the Roberts 5 decisions that elevate themselves to the position of policy-makers for plutocracy, Governor Patrick communicates the opposite. 

Does Governor Patrick stand with the framers who would be shocked at the abuse of their Constitution so as to create a plutocracy managed by corrupt political parties? Or does he stand with the shocking abusers of that Constitution? 

If not in the contemplation of the revolutionaries against oligarchy who wrote the Constitution, nor of the American people, nor of the legislatures and chief executives who enact and sign the laws repeatedly overthrown by the Roberts 5, nor of the four dissenting justices, nor of a prominent representative of the legal profession such as the governor, then where does the Court get the authority that the governor contends it possesses to create such a rule?

Chief Justice Roberts seemingly created this new rule overturning long-standing precedent and legislation out of thin air, just as he did when inventing the "equal sovereignty" rule in Shelby County (2013) to overturn the Voting Rights Act, of even older vintage, and when inventing reasons to deny speech rights by pretending to protect speech rights when overturning Arizona's public funding of elections law adopted by the people of Arizona by referendum. Arizona Free Enterprise Club (2011). These Roberts decisions invent highly doubtful constitutional rules to reduce the representation of the people in the government of which they are sovereign. 

If the latest Roberts' rule derives from the three words "freedom of speech," as he claims, perhaps Governor Patrick could explain why other crimes involving speech, like filing a false tax return, is not just as legal as the Court has made influence peddling and public corruption? If the governor does not like that example on tax day, especially in Massachusetts where taxation without representation caused a famous public disturbance, there is a long list of examples that would have to be explained, like espionage, forgery, perjury, subornation, fraud, conspiracy, procurement (pimping), gambling, libel and slander, copyright violation, securities violation, false advertising, truth in lending violations, product mislabeling, unregulated health claims, usury or any illegal contract, and any of the other numerous violations that involve an element of speech.

The overthrow of democracy by corruption is more important than any of these. On what clear basis can this one "speech crime" designed to prevent overthrow of representative government by corruption be distinguished from all other such crimes? 

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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