This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.
If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.
Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).
Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people. For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere. Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.
But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.
A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people. And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).
The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.
Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts. This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:
Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth. This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.
While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents! The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.
The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United. Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.
In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era. Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it. But this is predictable and pedestrian. The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.
Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy. First, he faults her for not trying to fix “the nation’s disclosure laws,” which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure. It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court. If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.
For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that. He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless. Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954). But does that make passage of the Fourteenth Amendment a bad idea? The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.
If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.
But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage. But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification. For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine. Constitutional movements can change the mind of the Court.
Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era. It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.
Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.
In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.
Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).
…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.
The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).
Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,
This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.
Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.
Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.
Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.
Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.
Listen to the full audio of the telebriefing for more information.
In a week in which the Supreme Court turned a blind eye to the reality of money corrupting politics, a story out of Arizona provides a clear example of the insidious influence of the private prison industry and its campaign contributions.
Arizona has been at the forefront of bad prison policy and big profits for private prison companies. People For the American Way’s 2012 report, “Predatory Privatization: Exploiting Financial Hardship, Enriching the One Percent, Undermining Democracy,” explored how Arizona officials’ political and ideological commitment to prison privatization overrode good policy and common sense. Unbelievably, faced with evidence that privately run prisons were costing taxpayers more, not less, than state-run prisons, some legislators moved to stop the state from collecting the data.
This February, we wrote about Politico’s coverage of the private prison racket. “Companies that manage prisons on our behalf have abysmal records,” author Matt Stroud asked, “So why do we keep giving them our business?” One answer is that the industry spends a fortune on lobbying and campaign contributions.
This week’s story shows how those investments can pay off. According to the Arizona Republic, House Appropriations Committee Chairman John Kavanaugh tried to slip a last-minute $900,000 earmark for private prison giant GEO Group into the state budget. The company is already expected to get $45 million this year under contracts with the state that guarantee the company at least a 95 percent occupancy rate, “virtually ensuring the company a profit for operating its prisons in Arizona.” The state Department of Corrections said the extra money isn’t needed, but Kavanaugh heard otherwise from the company’s lobbyists. GEO executives gave Kavanaugh more than $2,500 in 2012.
The good news is that the Senate Appropriations Committee dropped the extra funding “following an uproar of criticism from Arizonans.”
We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.
In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:
The Times writes:
But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.
In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.
Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.
In an interview with “60 Minutes” this weekend, Supreme Court Justice Sonia Sotomayor gave one of the best debunkings I’ve seen of the Right's line that a judge should be no more than an umpire, exercising no independent judgment and facing no difficult questions. Using the politically neutral example of the 3rd Amendment, Sotomayor explains how even the most seemingly clear-cut parts of the Constitution still require interpretation by judges and Justices:
Chief Justice John Roberts made headlines when, in his confirmation hearings, he said that a judge’s job was merely to call “balls and strikes.” The comforting words of his analogy hide the fact that most of the issues the Supreme Court approaches are complex and require human judgment – that’s why they reach the Supreme Court in the first place. They also conveniently obscure the fact that the conservative bloc on the Court is plenty influenced by their own ideology – there are plenty of examples here.
Justice Elena Kagan, in her confirmation hearings, gave another great rebuke to Roberts’ flawed baseball analogy. “We know that not every case is decided 9-0,” she said, “and we know that’s not because anybody’s acting in bad faith. It’s because reasonable people can reasonably disagree sometimes. So in that sense, the law does require a kind of judgment, a kind of wisdom. “
The ballot initiative that revoked marriage equality in California has taken a big step towards having its constitutionality determined by America’s highest court. In a long-awaited move, proponents of Prop 8 have petitioned the Supreme Court to review the Ninth Circuit’s ruling in Hollingsworth .v Perry that the ballot initiative violated the federal Equal Protection Clause. A nearly 500 page document, which can found here, lays out their rationale for urging the court to review the case.
Prop 8 Trial Tracker broke down the core of their argument:
The question presented in the case is: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” The proponents tell the Court that they should answer the “profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples.” They write that leaving the Ninth Circuit’s decision intact would have “widespread and immediate negative consequences” and would leave the impression that any “experiment” with marriage would be “irrevocable”.
The Ninth Circuit issued a very narrow ruling, avoiding the question of whether gay and lesbian couples in general have a constitutional right to marry. Instead, it based its ruling on narrow grounds unique to California, where same-sex couples were left with all the state rights of marriage but not the name. It found that taking their designation of “marriage” while leaving their rights unchanged did not serve any of the purposes put forth by its defenders. Instead, its only purpose and effect was to lessen a targeted group’s status and dignity by reclassifying their relationship and families as inferior. While the Supreme Court will be presented with the narrower question as framed by the Ninth Circuit, it is impossible to tell, if it agrees to hear the case at all, whether they will rule on this principle or more broadly on the ability of states to deny lesbians and gays the right to marry.
The Supreme Court will likely decide in early October whether or not to hear the case. Back in February, PFAW applauded the decision of the Ninth Circuit Court of Appeals in upholding the decision of the district court striking down Prop 8.
Marriage equality is just one of the many critical issues that will come before the Supreme Court when they reconvene next session. The elevation of Prop 8 to the highest level of the judicial system underscores the increasing importance of the Supreme Court and the Presidential election.
It is a difficult to imagine a more conservative Court than the one we have now, but Mitt Romney has pledged to appoint justices even further to the right then John Roberts and Samuel Alito. Romney has also enlisted far-right judge Robert Bork to advise him on judicial matters.
Visit RomneyCourt.com for more on Mitt Romney’s extreme vision for the Supreme Court.
Add this to the good news/bad news mix from the Supreme Court's healthcare decision: Because of the good news (Chief Justice Roberts voted to uphold the constitutionality of the Affordable Care Act), we get the bad news that his standing among the nation's Democrats has significantly increased. This collective amnesia about who John Roberts is and what he has done is disturbing, especially since the direction of the Court is one of the most important issues upon which Democrats should be voting in November.
A new Gallup Poll shows wild fluctuations in Democrats and Republicans' assessment of Chief Justice John Roberts since their last poll in 2005, a change Gallup attributes to his role in upholding the Affordable Care Act. Roberts' approval rating among Republicans has plummeted 40 percentage points from 2005, falling from 67% to 27%. In contrast, his favorability among Democrats has risen from 35% to 54%. That the healthcare decision is a catalyst of this change is supported by a PEW Research Center poll last week showing that between April and July, approval of the Supreme Court dropped 18 points among Republicans and rose 12% among Democrats.
Yes, John Roberts upheld the ACA, but only as a tax. At the same time, he agreed with his four far right compatriots that it fell outside the authority granted Congress by the Commerce Clause, leaving many observers concerned that he has set traps designed to let the Court later strike down congressional legislation that should in no way be considered constitutionally suspect. He also joined the majority that restricted Congress's constitutional authority under the Spending Clause to define the contours of state programs financed with federal funds.
Just as importantly, Roberts's upholding the ACA does not erase the past seven years, during which he has repeatedly been part of thin conservative majority decisions bending the law beyond recognition in order to achieve a right wing political result. John Roberts cast the deciding vote in a number of disastrous decisions, including those that:
Oh, and then there's that little 5-4 Citizens United opinion that has upended our nation's electoral system and put our government up to sale to the highest bidder.
With a rap sheet like that – and this is hardly a complete a list – no one should be under the illusion that John Roberts is anything but a right-wing ideologue using the Supreme Court to cement his favorite right-wing policies into law.
Next term, Roberts is expected to lead the judicial front of the Republican Party's war against affirmative action and the Voting Rights Act. Whether he succeeds may depend on whether it is Mitt Romney or Barack Obama who fills the next vacancy on the Supreme Court.