Creating a ‘free-for-all’ political system

CREATING A ‘FREE-FOR-ALL’ POLITICAL SYSTEM…. Rick Hasen has a very good piece in Slate today on today’s Supreme Court ruling, and the significance of the 5-4 decision.

It is time for everyone to drop all the talk about the Roberts court’s “judicial minimalism,” with Chief Justice Roberts as an “umpire” who just calls balls and strikes. Make no mistake, this is an activist court that is well on its way to recrafting constitutional law in its image. The best example of that is this morning’s transformative opinion in Citizens United v. FEC. Today the court struck down decades-old limits on corporate and union spending in elections (including judicial elections) and opened up our political system to a money free-for-all. […]

What is so striking today is how avoidable this political tsunami was. The court has long adhered to a doctrine of “constitutional avoidance,” by which it avoids deciding tough constitutional questions when there is a plausible way to make a narrower ruling based on a plain old statute…. What we have in Citizens United is anti-avoidance. Kennedy’s majority had to go out and grab this one.

Of particular interest, Hasen notes that Kennedy’s ruling “wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the state supreme court?”

Dahlia Lithwick added, “Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is ‘to confuse metaphor with reality.’ Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.”

Obviously, the other branches of government cannot overturn Supreme Court rulings, but it’s worth noting that Democratic leaders on the Hill intend to “push legislation to limit the impact of Thursday’s Supreme Court decision that lifted restrictions on corporate spending in politics.” Sen. Chuck Schumer (D-N.Y.), in particular, plans to “hold hearings to explore ways to limit corporate spending on elections.”

For his part, President Obama also issued a statement, lamenting the fact that the Supreme Court has “given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates.” The statement added the administration would work with Congress to “develop a forceful response to this decision. The public interest requires nothing less.”