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

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Message Larry Kachimba

In Arizona Free Enterprise Club v. Bennett, 10-238 (June 26, 2011) (5-4) five Supreme Court justices eviscerate the only effective alternative to limits on election expenditures: public campaign finance. Under its surreal "money is speech" doctrine, the Supreme Court has since 1976 invalidated effective limits on money in politics as a restriction on speech. Now it holds that the public cannot spend its money to match private electioneering expenditures to level the playing field between public interest and special interest in order to control political corruption.

Matching private expenditures provides more equal opportunity for speech from candidates who emancipate themselves from private interests by accepting public campaign funding. Without such matching, the public funded candidate is outspent by the private funded candidate, and usually loses. The Roberts 5 call such matching a "burden" on the privately financed candidates because their special interest money will not consistently overwhelm the candidates who are not reliant on private interests. They may even choose the tactic of spending less to reduce the amount of the match given their opponent. The 5 create a constitutional right for the rich candidate to spend more money in politics than everyone else. Four dissenting judges explain that this decision will make public funding of elections ineffective since the success of the public financing system depends on the matching funds mechanism.

Since 1976 the Court has used its "money is speech" trope to hitch its interference in elections to the First Amendment. The Constitution gives to Congress and the States, not the Court, the power to regulate and judge elections. This decision has nothing to do with free speech. It has everything to do with blatant interference with elections to advantage the money party. The people do not want a plutocracy and are willing to fund candidates not beholden to the rich to try to get get their democracy back. The Roberts 5 do want a plutocracy and will do what it takes to keep it. They know as most Americans do that candidates who spend more money win most elections. That being the outcome the Court desires, the Court claims that the Arizona law, by enabling people without private funds to contest fairly with those who do have private funds, "burdens protected political speech without serving a compelling state interest."

Who are these five judges to say there is no compelling interest in trying to prevent plutocracy? It rises to the level of an unconstitutional burden, according to the 5, for privately financed candidates to have to face up to more opposition speech funded by the people. But somehow the very same burden on the public, facing up to more opposition speech funded by the rich for the purpose of undermining and corrupting democracy, is of no concern. Of no concern to the Roberts 5, that is. This same burden is of compelling interest to the public seeking to protect their democracy.

An overwhelming majority fully understands that this burden of money in politics threatens to overwhelm democracy altogether. Indeed there is no more compelling interest, on a par with defending a democracy from violent overthrow, than defending it from systematic corruption. Previous Supreme Courts knew this. But these 5 that grew out of and remain securely in the lap of plutocrats impose a different view, and a different Constitution of their own making.

Those who have an interest in preserving the fiction of the rule of law may parse this decision for some semblance of legal rationality. The four dissenters looked for it, and could not find any. The Supreme Court majority has simply amended the Constitution -- once again -- to protect plutocracy. Why? Because they can. Congress, and the people, have let them get away with it.

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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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