HA! Hilarious. Imagine if they really did that.
Oh wait. Today’s Tuesday, so it can’t be the Weekly Joke Revue. And that can only mean one thing: they actually did it.
Yes, in yesterday’s much-anticipated decision on Arizona’s campaign finance law, the Supreme Court concluded (by the utterly and depressingly predictable 5-4 margin) that Arizona’s system, which increases the amount of money available to publicly-financed candidates depending on how much their privately-financed opponents are spending, violates the First Amendment.
At first blush, the decision seems as absurd as the title of this post. As Justice Kagan’s remarkably (perhaps even surprisingly) harshly-worded dissent points out, “what the law does—all the law does—is fund more speech.” Surely, “more speech” can’t violate the First Amendment.
And yet, according to five guys in black robes, it does. You see, if a privately-financed candidate knows that running more ads (thus spending more money) would result in more public money being made available to his competitor, he might make a strategic call not to run that ad, in order to prevent the extra money going to the other guy. This strategic decision, apparently – entirely voluntary on the part of the candidate – constitutes constitutional injury sufficient to invalidate a duly-enacted law. Even though, obviously, the law does absolutely nothing to actually prevent or penalize the candidate from speaking, beyond letting the other guy speak too.
Really, this decision strikes me as so painfully and transparently ridiculous that there isn’t much to say about it; certainly, Kagan’s dissent shreds it effectively. The NY Times has a pretty good editorial called “The First Amendment, Upside Down.” Seems about right. Yale law prof Heather Gerken has an interesting commentary on the almost startlingly strident tone of the opinions, especially Justice Kagan’s dissent. And I agree – the dissent is almost Scalia-like in its abrasiveness, belittling and ridiculing the majority opinion’s analysis every chance it gets. It’s all the more remarkable because the dissent is authored by the Court’s junior Justice, and the majority opinion is authored by the Chief. No deference to Roberts’ seniority is evident in Kagan’s opinion.
Well, good. As election law specialist Rick Hasen observes, “Kagan has emerged here as not only an intellectual leader, but a pugnacious, take-no-prisoners’ writer on an issue about which she feels passionately…. Justice Kagan has shown that the other side won’t go down without a fight.”
The sad thing, though, is how apparent it’s becoming that the basic tenets of election law (in particular, though this is true of other areas of law to a lesser extent) is entirely a function of the Supreme Court’s membership. It seems perfectly clear that, should President Obama win a second term and one of the five conservatives retire during that time, the new five-member majority would happily overrule this case (and probably Citizens United as well). I think that would be a good thing in a micro sense, as I think that those two cases went badly off the rails, so overruling them would restore election law to a more sound doctrinal footing. But I think it’s quite a bad thing for constitutional law generally to have an important area like this one see-sawing between (in Professor Gerken’s words) “two incompatible world views.” Even more sadly, it’s hard to see what the solution to this problem might be.
David says
to the extent there is one, is that matching fund schemes should be unaffected by this decision. So, as far as we know, if a state (or the feds) want to set up a system where a publicly-financed candidate gets, say, $5 of public money for every $1 of private money raised, that’s OK.
Trickle up says
or at least the sound of the other shoe preparing to drop.
Having found that money is speech, the court is slowly concluding that (1) only money is speech and that therefore (2) speech is a zero-sum game in which any government subsidy of speech is an infringement on the speech of others.
SomervilleTom says
The GOP has always believed that poor people don’t count. Always. Now that they hold the Supreme Court and own the mainstream media, the GOP feel emboldened to actually say what they’ve always believed.
“Speak all you want, so long as nobody hears” is the result.
This ruling shuts everybody except the very wealthy out of the mainstream media. The internet is all that is left.
How long before the net, too, is bought and silenced?
Tell me again about net neutrality, who supports it, and who opposes it.
Bob Neer says
And got the 13th, 14th, and 15th amendments through Congress. But maybe those are not the poor people you had in mind.
farnkoff says
I think we all would agree that the political parties have changed since that time. Is there a single issue that today’s Republicans share with their 19th century counterparts?
Plus, they were fairly new in 1865- were people already referring to them as the “Grand Old Party”?
SomervilleTom says
Any relationship between the party of Abraham Lincoln and today’s GOP is purely coincidental. The Concorde was the safest airplane in the air, until it crashed.
The “poor people” I have in mind includes every American who falls beneath the 95th percentile of the wealth distribution.
AmberPaw says
Corporations are – or can be – the best way to shelter criminal activity, assets, and political sneak attacks, in part because http://finance.yahoo.com/career-work/article/113032/little-house-secrets-great-plains-reuters
Ryan says
I say pack the court, or a constitutional amendment for 10 year terms (and something with some serious provisions preventing the sort of shenanigans that Thomas has been involved in — absolutely barring a SCOTUS to profit on anything that could impact a case IMO). This is a disgrace.
Bob Neer says
That would perhaps make the political basis for Supreme Court decisions clearer. It would also highlight the legislative power given to an unelected group of politicians.
Christopher says
I fear that if SCOTUS is not the presumed the peak of one’s career, the justice might have incentive to consider a ruling’s popularity. Keep in mind there have been times in history that liberals have looked to the Court as the bastion of rights protections. As to Thomas I’ve heard that the same judicial ethics standards that apply to most judges don’t apply to SCOTUS and they should. In this particular case I would file articles of impeachment against Thomas. Nothing personal, and it may not lead to removal, but I think this would demonstrate how seriously this warrants an investigation.
Ryan says
Somehow, the justices on the Supreme Judicial Court manage to put out thoughtful decisions despite the fact that they don’t have lifetime appointments.
10 years is a plenty long enough term, and if people are worried about rulings decided through popularity… don’t let people get reappointed right away.
Plus, it would have the added benefit of people selecting justices based on talent, not age. There are more than enough potential picks who have been ignored because they were ‘too old.’