The Plutocracy’s Mouthpiece: The United States Supreme Court

Notwithstanding the cries of so-called “strict constructionists,” the U.S. Constitution – a product of the 18^th century! –– is of necessity a fluid instrument rife with its own internal inconsistencies. Without that fluidity, allowing Congress to raise a standing army and navy wouldn’t stretch to accommodate permitting an air force. Inconsistencies provoke the court to engage in a balancing of interests. Also for example, one provision of the constitution allows for the creation of monopolies in expressions of speech (the effective purpose of copyrights), while another allows for unabridged free speech. The court is obviously charged with creating reasonable interpretations to reflect inevitable modernity and to apply this incredible anchor of our judicial system to situations never contemplated by the original draftsmen.

To those who suggest that any nuances of interpretation require an amendment, the process of securing that amendment is so cumbersome and so time-consuming that changes are not only exceptionally unlikely, but no such amendment could be passed quickly enough to matter to anyone dealing with a pressing and challenging case. In fact the last amendment (the 27^th - deferring the impact of a Congressional raise until the next session of Congress) was ratified in 1992, although it was originally proposed in 1789! Mississippi just ratified the anti-slavery 13^th Amendment (passed in 1865).  

“As spelled out in Article V, the Constitution can be amended in one of two ways. First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures (ratification by thirty-eight states would be required to ratify an amendment today). This first method of amendment is the only one used to date. Second, the Constitution might be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures.” law2.umkc.edu. Whew! And if the issue is anything that would negatively impact the those who support the moneyed conservatives in this country, think there’s a shot in hell of getting such an amendment through today?

What this means is that the court has a delicate responsibility, occasionally even repealing earlier precedents seem out-of-step with practical modernity (for example, replacing the 1896 “separate but equal” Plessy vs. Ferguson doctrine in segregation cases with a ban on such practices in schools under the 1954 Brown vs. Board of Education years later).

Among the stickiest cases that the court has faced over the years deal rather directly with who gets elected to the most powerful offices in the land… and how. Aside from the court’s direct intervention in the George Bush vs. Al Gore presidential election decision in 2000, which effectively resolved a dispute over the validity of Florida ballots in favor of Mr. Bush, the court has of late slowly but rather obviously used its discretion to move itself to become the single most powerful political advocate for the rich. In stepping into the political fray and taking sides consistently favoring one constituency over any other, the court has unraveled its own recent more egalitarian decisions in this heavily political arena and threatened the very credibility of the court itself.

By recognizing that corporations and other such organizations have sufficient personhood to fall within the protective cover of the First Amendment, the court effectively took the dollar lid off of corporate campaigns embracing issues and candidates that are not controlled directly by the candidates themselves. Citizens United vs. Federal Election Commission (2010), which reversed its own Austin v. Michigan Chamber of Commerce (1990), effectively allowed such large structures an unrestricted right to buy the airways and media to sway election results. Despite some dictum in the case that such permissive contribution policies were unlikely to create a corrupting influence to “buy elections,” when faced with a small population state (with about one million people) that limited campaign contributions to prevent a corrupting influence, the court refused to back down - Western Tradition Partnership, Inc. v. Montana (2012).

In 1976, in Buckley vs. Valeo, the court faced a determination of whether federal campaign limits were lawful or not. The court ruled that while there were no restrictions on rich candidates’ spending their own money on their own campaigns, otherwise those campaign limits were sustained. To effect an equalizer, Congress passed the so-called Millionaires’ Amendment, allowing independent candidates to raise money outside of campaign limitations if their opponents were using their own money to run. The court struck down that equalizing statute in Federal Election Commission vs. Davis (2008).

As onerous as the process is to amend the U.S. Constitution, the grassroots sentiments against the Supreme Court and its billionaire boyz club might just strong enough to effect a change. “California Assembly member Bob Wieckowski (D-Fremont) introduced a bill, AB 644, Wednesday to put a measure on the state's 2014 ballot urging Congress to [initiate] a constitutional amendment to overturn the 2010 Citizens United ruling, which lifted restrictions on political spending by corporations and labor unions. Independent spending in federal elections has exploded since the ruling…‘It's one thing for a legislator to say he wants this,’ Wieckowski said. ‘It's another thing for Congress to have direct instruction from the voters. There comes a tipping point where people are upset with billionaires having a disproportionate impact on our electoral system.’” Huffington Post, February 21^st. But would the plutocracy ever allow such a vote to happen? Think getting a two-thirds vote in the House for an amendment that would strike down the greatest source of GOP fund-raising in years is going to happen?!

The Supreme Court has slowly inveigled its way into the political process, pressing hard to enable and support the mega-rich to have a disproportional power to determine the outcome of political campaigns, reversing even their own precedents that get in the way of their supporting the new plutocracy, a nation where 1% of her citizens own 42% of her wealth. Polarization is not evil to this court, it is a mandate. Among the principal advocates of such continued polarization is ultra-right-wing Associate Justice Antonin Scalia (pictured above). He addressed an assembly at Southern Methodist University at the end of January, where he “dismissed the modern vision of the U.S. Constitution as a living document... ‘It’s not a living document,’ he said, according to theDallas Morning News. ‘It’s dead, dead, dead.’” Huffington Post, January 29^th.

On February 19th, the court accepted a case, McCutcheon v. Federal Election Commission, which may well be decided to give the mega-rich even more power to buy media influence in elections. The case revolves around the overall cap (not the per-candidate cap) on individual campaign contributions in federal elections: $123,000 per two year election cycle.

If indeed the court’s majority continues to step towards a society in which the mega-rich have clearly-defined rights and political abilities well beyond those accorded to average citizens, the court will become a mockery of the intentions that were the very underpinnings of its creation: to use the constitution to protect those unable to protect themselves, to support American justice, democracy and equality for all. Instead, this majority is now nothing more than a mouthpiece for those at the top of a highly polarized society, stepping into political issues that were never supposed to be within their purview… crushing the individual liberties of those who do not have the money to counterbalance the efforts of the narrow cadre of rich at the top.

I’m Peter Dekom, and the extreme politicization of the Supreme Court is toxic to the  survival of the kind of democracy our forefathers intended.