Private: A Court Failing The Nation

by Gene R. Nichol, the Boyd Tinsley Distinguished Professor of Law and Director of the Center for Poverty, Work & Opportunity, UNC School of Law

It’s no easy feat to crown a favorite Abraham Lincoln quote. The heartfelt urging of “malice toward none … charity for all,” the challenge to ordain “a new birth of freedom,” the recognition that “our republican robe is soiled and trails in the dust,” the tapping of the “better angels of our nature’, and the “mystic chords of memory stretching from every battlefield and patriot grave.” Many could quickly nominate a dozen others.

My own is less noted: “Allow all the governed an equal voice in the government, and that, and that only, is self government.” [Though it is etched on the gallery walls at the Lincoln Memorial, our national temple of democracy.] The line comes from Lincoln’s 1854 Peoria address. Taking the national stage to decry Stephen Douglas’ repeal of the Missouri Compromise, Lincoln demanded, as Lewis Lehrman has written, that “the nation get right with the Declaration of Independence.” The defining portrait of democracy was the cornerstone, Lincoln reminded, of “our ancient faith.” It is the idea of America.     

It would be hard to produce a stouter debasement of Lincoln’s sense of our national meaning than the recent parade of presidential hopefuls seeking audience, in humbled supplication, before a creepy and lengthening list of billionaire funders to secure meaningful entry into the 2016 race. The mega-buck primary is apparently more compelling, and decidedly more exclusive and demeaning, than the electoral one.  

The Koch brothers have announced that a billion dollars is up for grabs for the candidate who pleases. Scott Walker reportedly has the inside track in what The New York Times calls the “Koch Primary.” But the mercurial pair has chosen to delay the purportedly outcome-bending announcement. Suspense, one supposes, augments the drama.

When Sheldon Adelson let it slip that he was again in the market for a candidate, Chris Christie, Jeb Bush, John Kasich, Scott Walker rushed to Las Vegas to pay homage. The pageant was held, fittingly, in one of the Adelson casinos. The ever-belligerent Christie quickly apologized for prior statements about the Middle East. So much for tough-and-brutal talk. It is easy to see why. Adelson, who coughed up almost $100 million in 2012, suggested he’ll consider putting up serious money this time around. 

Nor were others idle. Hedge Fund magnate Robert Mercer disclosed he will sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of investment manager Foster Friess. Florida billionaire Norman Braham will provide at least ten million for Marco Rubio. Jeb Bush’s new super PAC, Right To Rise, will reportedly secure $100 million of individual and corporate donations by the end of May. The game is underway.

The Democrats are no better – though they add a grotesque and habitual hypocrisy to the mix. 

Hillary Clinton followed up the announcement that curing the evils of money and politics would be a core component of her campaign by traveling to California to seek massive contributions for the Priorities USA Super PAC. The New York Times reported, “Clinton will begin personally courting donors … seeking seven figure contributions” to the shadowy outfit supporting her candidacy.  

She is confident we have forgotten the Lincoln bedroom leases and the overtly purchased attentions (and pardons) of her husband’s administration. She went west, one supposes, to remind us, anew, that she never actually means what she says. A psychologist could spend a lifetime exploring whether cynicism, hubris or old-fashioned deceit dominates in such a candidacy.

The Washington Post described the unfolding primary as “a brawl of billionaires … with candidates set to crucify each other on crosses of gold.” The Center for Responsive Politics revealed that, in 2012, about a hundred people and their spouses contributed two-thirds of all super PAC funding. The one percent of the one percent of the one percent.

Fred Wertheimer, Democracy 21’s campaign reformer of long-standing, predicts that, in 2016, for the first time, spending by super PACs will outpace expenditures by candidates and political parties combined.  As a result, political operatives say, it is possible that the eventual nominee need not prevail, as historically demanded, in either Iowa or New Hampshire. Mere votes will bow in subordination before billions.

This national shaming is made possible, even inevitable, by the United States Supreme Court. In decisions dating from the 1976 Buckley v. Valeo, our high court has famously, as a matter of constitutional compulsion, equated money and speech, outlawed expenditure limits, afforded astonishing protection to corporate spending, and downplayed dangers of corruption obvious to everyone in the land.

Still, the justices have needed to deploy two additional absurdities to secure the ascendancy of wealth over politics. The first is the fiction that “independent” expenditures, as opposed to direct campaign contributions, present no cognizable danger of influence. Justice Anthony Kennedy repeatedly writes, as if lost in a Hindu mantra: “the absence of prearrangement and coordination of expenditures eliminates the risk of improper influence on a candidate.”

In other words, if Sheldon Adelson contributed $5 directly to Newt Gingrich’s 2012 campaign, concern over possible corruption would reasonably have been warranted. But merely spending $20 million on Gingrich’s behalf was unproblematic. No one who has ever come close to electoral politics believes that. No one.

Second, the Court has consistently ruled that concern for equal participation has no role in campaign regulation. None. Limiting the amount of money one person can spend in order to leave others an enhanced chance of access is “wholly foreign to the First Amendment.”

Lincoln proclaimed that “allowing all an equal voice in the government” is the key to the American experiment. Our Supreme Court, on the other hand, deems equality the value that, like Voldemort, dare not be whispered. If, presidential candidates are reduced to playing mascot for billionaires as a result, so be it. Such are the required wages of cash register politics.

Still, we are Americans. Lincoln was, after all, unalterably right. Five or so members of this Court, having spent the entirety of their professional lives in service to the economically privileged, are unalterably wrong. Even they likely know it.

We are not without weapons. Jurisdiction can be curtailed. New seats can be added to the court. Judges can be impeached for attempting to destroy democracy. Enough is enough. Tom Paine wouldn’t put up with this.   

Neither, as we know, would old Abe. He explained, for example, that though the decision in Dred Scott was binding on the parties, it could not set a mandated, foundational, political course for the nation. Otherwise, the “people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of an eminent tribunal.” The Roberts Court may be eminent, I suppose. Depending on one’s notion. But it cannot be allowed to inter the American commitment to self-government. Better to ditch the court than the democracy.   

Campaign Finance, Democracy and Elections, Supreme Court