“It is not our job to protect the people from the consequences of their political choices,” said Chief JusticeJohn G. Roberts Jr., making pretty clear what he thinks about the healthcare law even as he supplied the crucial fifth vote to uphold it. With those words, Roberts not only got big points for intellectual honesty, he also insured that National Federation of Independent Business et al vs. Sebelius will not join the surprisingly short list of Supreme Court rulings in our lifetime that liberals love to hate.
It’s been 39 years since Roe vs. Wade, the high-water mark of liberal activism, and 43 years — 28 of them years with a Republican president choosing the justices — since Warren Burger replaced Earl Warren as chief justice and the counterrevolution was supposed to start. But, one way or another, the major Warren court rulings have dodged bullet after bullet.
Actually, there are only two cases in the past half-century that are notorious, from a liberal point of view: Bush vs. Gore, which upheld the theft of the 2000 presidential election, and Citizens United vs. Federal Election Commission, just two years ago, which declared that corporations have a right of free speech under the 1st Amendment.
Bush vs. Gore is indefensible. But Citizens United is not. In fact, it was correctly decided, however deplorable the consequences. Liberals ought to show the chief justice that we too can acknowledge a principle even when we don’t agree with the result.
Citizens United overturned provisions of a law once known as McCain-Feingold, after its main sponsors, Republican Sen. John McCain and Democrat Russ Feingold. The law was “an outright ban, backed by criminal sanctions” (as JusticeAnthony M. Kennedy’s majority opinion explained) on corporations advocating the election or defeat of a candidate, or issuing any other “electioneering communication,” within 60 days of a general election or 30 days of a primary.
If the law had been aimed at individuals, it would have been obviously unconstitutional. Endorsement of a political candidate — even if it’s yourself — is about as central to the 1st Amendment as any category of speech can be. The government may restrict campaign contributions if it wishes (as it does) because a contribution isn’t speech and will not necessarily be spent on speech. Money spent directly promoting yourself or others for public office is speech, and it can’t be censored.
But wait a moment, goes the response by every liberal newspaper and website in the nation. Speech by a corporation is different. Corporations are artificial entities, designed and built by the government. They have no more rights than Dr.Frankenstein’s monster. Human beings may decide to organize themselves as a corporation, but they don’t have a constitutional right to exercise their constitutional rights in that form.
A pretty good argument, I’ve always thought, but it stumbles over media companies (as Kennedy notes at length in Citizens United). If “money isn’t speech,” as many a New York Times editorial has declared, may the government put a limit on how much a corporation can spend publishing a newspaper? The law Citizens United overturned actually exempted media companies from its spending limits. But the difficulty — impossibility, really — of defining a media company and explaining why it should have more rights than any other company suggests that a right granted to one company should be granted to all.
No doubt that this year’s election campaign has vindicated the concerns of the Citizens United ruling’s critics. The influence of money in politics is greater than ever, and the influence of people with money is growing apace.
So what’s the solution? Please don’t say, “Amend the Constitution.” The current political atmosphere is not one in which opening the 1st Amendment for reconsideration is a good idea. Anyway, constitutional rights are “unalienable.” Corporations will continue to have 1st Amendment rights even if we choose not to recognize them.
The solution is to make money a voting issue — which now, by and large, it is not. It’s a kvetching issue but not a voting issue. Politicians — who are not, primarily, in it for the money — should have to make the calculation every time they spend a dollar, or look the other way while others spend a dollar on their behalf: Will this money buy me more votes than it will cost me?
All it would take would be the defeat of a few representatives (and maybe a senator or two) precisely because they or others spent an offensive amount of money on the effort to get reelected.
This could completely change the relationship between dollars spent and election results, and it wouldn’t require judges to deny anybody his or her (or its) constitutional rights. As Roberts says, it’s not the Supreme Court’s job to save us from ourselves.
Michael Kinsley, a former editorial page editor of The Times, is a Bloomberg View columnist.