Ghost of Bush: How Dubya's Court Can Undo Democracy

By Michael I. Niman, ArtVoice  9/17/09

The key to American politics is that you’ve always got to watch for the action behind the distraction. The distractions right now is the healthcare debate, and the economy, and the war, and the other war, and the other wars, environmental collapse, and so on. All salient stories with lots of enticing, media-ready vignettes—you know, heart-wrenching narratives, images of things blowing up, stranded polar bears floating out to sea on melting ice, that sort of stuff.

Lost somewhere on the back burner of our consciousness are the yawn-factor stories, like the endless deliberations of the US Supreme Court, which seem to move slower than even pre-season baseball games or rush-hour traffic. Make no mistake about it, however. The Supreme Court is the ticking time bomb Dubya left in the executive bedroom. And it’s about to blow.

Rolling back the calendar to 1906

It’ll go down in history something like this: “While middle-class folks were opiated on rebounding 501(k)s, and working-class and poor folks were sandbagging their homes against foreclosures and evictions, the Supreme Court went into a rare September session…”

The aim of the Roberts Court, it appears, is to reverse a century of campaign finance reform laws that began with the 1907 Tillman Act, which prohibited corporations from out-and-out buying federal politicians through direct campaign contributions.

Buoyed by two radical ideologues appointed by G. W. Bush, and one appointed by his dad, the 5-4 corporate-rightist majority on the divided court appears ready to make its landmark move while the going is still good. The case started as a lawsuit protesting the censorship of a 90-minute Hillary-bashing infomercial funded by corporate donations. Right before the 2008 primary election, a federal court invoked the 2002 McCain-Feingold campaign finance reform law, to exercise prior-restraint and stop the ad’s airing. (Like I said, there’s a yawn factor here.) The ad’s sponsors cried foul and hired former G. W. Bush administration Solicitor General Theodore Olson to argue their case up to the Supreme Court. There, Bush appointee Chief Justice John Roberts decided to reopen the case and use it to broadly challenge the entirety of 102 years of campaign finance laws enacted by Congress, along with a half-century of Supreme Court decisions upholding those laws.

At stake here are century of hard-fought Congressional victories curtailing the ability of corporations, and to a lesser degree, unions, to buy politicians on the auction block. To understand what this means in the real world, let’s look at the numbers. For the past half century, the candidates who spent the most money electioneering won approximately 90 percent of Senate races and 95 percent of Congressional races. The real contest is in fund-raising. Election-day is just a theatrical exercise where voters essentially do as they’re told.

The right to bribe

According to Olson, “you can’t speak without money.” He goes on to explain that “you need resources to reach people, and that’s part of the right to speak.” Corporations, his argument goes, use money to speak. Remember the adage, “Money talks, bullshit walks?” Olson’s legal argument claims that by limiting a corporation’s ability to give money to politicians, in essence you’ve limited its most effective way to talk and to be heard, hence its supposed freedom of speech is curtailed. Olson never questions his own presumption that only money, and not people, are entitled to freedom of speech.

Bribing politicians, however, is hardly speech, much less protected speech. I’d classify it more or less as racketeering. But even more importantly, a corporation is not a person. It is a legal entity created by government in order to shield investors from liability and responsibility for their collective actions. Corporations, for example, cannot go to jail, even when their actions include manslaughter. Corporations do not have the legal responsibilities of individuals. And they don’t have the constitutional rights accorded to humans, despite recent attempts to twist the Bill of Rights into a tool to defend, for instance, the advertising of alcohol or cigarettes, as “free speech.”

Olson is dead-on, however, about the relationship between money and speech. Since 1987, when the Reagan administration revoked the Federal Communication Commission’s Fairness Doctrine requiring broadcasters to provide time for opposing views, information in our society has become a market commodity. If politicians want to communicate to voters, they must buy media access in the private marketplace. That requires money. Voters are left at the mercy of paid messages and pretty much only paid messages. Candidates without money cannot speak directly to voters and cannot respond to opposition propaganda. The voters do the best they can with the lopsided, biased information they have.

The solution to all of this is not to guarantee corporations the right to “speak” by throwing money at the political system—it’s to let us all speak by democratizing the media and allowing all candidates media access to voters. In a democracy, access to the electorate cannot be a commodity to be bought and sold.

Corporations have billions in profits to play with—not to mention taxpayer-subsidized bailout funds. And when Congress legislates to corporate specifications, they stand to earn many times those billions in windfall profits, usually at the expense of working people and the environment. In the larger scheme of corporate economics, politicians can be bought for what amounts to chump change. And corporate pockets are deep.

Cheney’s still smirking

Current campaign finance laws are weak and relatively ineffective. But they are the century-old foundation for current and future reform efforts to build upon. Erase them and, politically, we’ll have to relive a century of struggle. Make no mistake about it—gutting campaign finance law will be a game-changer. And once the Roberts Court starts erasing Court and Congressional history, in essence legislating from the bench, the voters be damned, everything from environmental protection regulations to civil rights law is vulnerable to erasure. There will be little room for discussion as a radical, partisan court exercises dictatorial control in remaking America to its liking.

This is why Dick Cheney still has a smirk on his face and why George W. Bush isn’t fleeing the jurisdiction. This is the bomb under the bed.

If the Supreme Court declares a century of campaign finance legislation to suddenly be unconstitutional, it would also be overturning numerous previous Supreme Court decisions upholding those laws. For instance, in 1976, the court ruled to uphold laws limiting campaign contributions. It ruled again in 1990 to uphold state laws limiting corporate campaign contributions. In 2003, it upheld the 2002 McCain-Feingold bill, which further limited corporate- and union-funded campaign ads within 30 days of an election. The case now being discussed seeks to overturn a lower court ruling that was based on the 2003 Supreme Court ruling.

With the Supreme Court poised to turn American jurisprudence upside down, let’s revisit Chief Justice Robert’s confirmation hearings in 2005 for a minute. Senators were worried, apparently for good reason, that the new majority might run wild and use its power to rewrite America’s laws in a way that would never be palatable or achievable by democratic means. Hence, senators, during the confirmation process, directly questioned Roberts about Stare decisis, the principle of respecting established legal precedent. Historically, courts have been obliged to respect earlier rulings unless there is clear and compelling evidence of a special justification for overturning the supposedly defective decision. When asked by senators if he intended to overturn precedent-setting Supreme Court decisions, Roberts was clear in his answer: No. End of story. Roberts explained that overruling a precedent would be “a jolt to the legal system,” undermining “stability and even-handedness.” According to Roberts, thinking that “the prior decision was wrongfully decided” was not enough to justify overturning it.

Bush’s golem

In the case at hand, the Supreme Court would be overturning precedent and negating a whole category of laws that no prior Supreme Court in the intervening century found to be problematic. Roberts was right when he said such action would be a jolt that would undermine the stability of the legal system. And it appears he may be ready, his own word be damned, to administer that lethal jolt. This is the ghost of the Bush administration—a golem court that gives phantasmagorical rights to corporations while condemning the Constitution to execution.

Don’t expect much outcry from the media on this one. The billions of corporate dollars that could be showered on politicians will go right through their hands and into the coffers of advertising-starved media outlets in the way of ad buys. And most major media outlets are owned by companies whose activities are regulated by Congress, hence they’ll probably like the chance to bid on a few politicians themselves.

The game, however, isn’t over. Popular sentiment, loudly expressed, could still wipe the smirk off of Dick Cheney’s face and put pressure on the Bush appointees to hold themselves in check. The Roberts Court is the monster the Bush junta left to do its bidding. If we are silent and complacent, it will run wild. If the American people rise up in protest, the Supreme plan can be thwarted.

Dr. Michael I. Niman is a professor of journalism and media studies at Buffalo State College. His previous Artvoice columns are available at www.artvoice.com, archived at www.mediastudy.com, and available globally through syndication.


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