This week’s Supreme Court decision granting corporations the right to spend unrestricted amounts of money supporting or opposing candidates in federal elections is so strained in its reasoning and so removed from the realities of American life that it would be grotesquely comedic, were its implications not so dire.
We’re all familiar, of course, with the disenfranchisement of corporate America. It’s common knowledge that the interests of big business are routinely ignored at every level of society, and that the deprivation of rights suffered by those unfortunates who populate its executive suites is a continuing affront to the national conscience. That, at least, was the suggestion of the strident tone taken by Justice Anthony M. Kennedy. “If the 1st Amendment has any force,” he wrote, “it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech.”
You would think that the federal prisons were overflowing with corporate martyrs to freedom of expression. This is reasoning ludicrous on its face and radical in its dismissal of judicial decisions stretching back to Theodore Roosevelt’s presidency. The notion that corporate rights and individual rights -- particularly those recognized by the 1st Amendment -- are congruent is absurd. Do corporations have a right to freedom of religion, or just to those liberties that advance commercial interests?
As Justice John Paul Stevens wrote in dissent: “If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”
That’s hardly the end of this decision’s implications. Over time, it’s bound to provide the rationale for overturning state and local electoral regulations based on federal law -- as those in Los Angeles are -- and will further undermine the influence of the parties at a time when U.S. politics seem increasingly chaotic.
That’s true because, though corporate contributions to the parties continue to be regulated, expenditures made outside the parties on behalf of candidates now are unlimited. The predictable effect on parties is particularly odd from this court, given that one of the most distressing things about this decision -- considered in a sequence stretching back to Bush vs. Gore -- is that it demonstrates that this is a partisan court, willing to hand down sweeping decisions that ignore decades of jurisprudence based on five Republican votes.
That was not true of the activist court over which Chief Justice Earl Warren presided. At the time he was sworn in, Warren was the only member of the court appointed by a Republican president. Still, he inherited a group of justices deeply split over the overriding question of the day -- segregation -- and fashioned a unanimous rejection of legalized racial separation in the landmark Brown vs. Board of Education decision. As The Times’ Jim Newton -- Warren’s biographer (and also my editor) -- has pointed out, “Before Fred Vinson, Warren’s predecessor, died, the court was deeply split over Brown. At least three justices (Tom Clark, Stanley Reed and Vinson) were inclined to uphold Plessy vs. Ferguson in defense of segregation, and two others (Felix Frankfurter and Robert Jackson) were stymied by the question of how to overturn such a long-standing precedent. Vinson’s death, which Frankfurter referred to as his first solid evidence of the existence of God, cleared the way for that impasse to be broken. Thus Warren achieved a unanimity that elevated the opinion above partisan or sectional politics.” Can that be said of any major decision handed down by Chief Justice John G. Roberts Jr.'s court?
That nonpartisan character survived throughout Warren’s tenure and that of his successor, the Republican Warren E. Burger. Two other landmark decisions of that period -- Griswold vs. Connecticut, which recognized a constitutional right to privacy, and Roe vs. Wade -- were decided by 7-2 majorities. In the former, one of the dissenters, Hugo Black, was a Democrat; the other, Potter Stewart, a Republican. In the latter, one of the minority justices, Byron R. White, was a Democrat, and the other, William H. Rehnquist, a Republican.
Our current ability to predict Supreme Court decisions by weighing the issues against the two parties’ programs is worse than melancholy. It marks a new low in our nation’s descent into corrosive partisanship.