There is no right in our democracy more basic than the right to participate in electing our political leaders.
— Chief Justice John Roberts, McCutcheon v. Federal Election Commission
In January 1898 Emile Zola published an impassioned defense of General Alfred Dreyfus, accusing the French government of anti-Semitic bias in convicting the general of treason. Dreyfus went to Devil’s Island and Zola fled to Great Britain to escape prosecution for libel. Both Zola and Dreyfus would ultimately be exonerated and the French government shamed in the annals of history.
The title of Zola’s article became the battle cry of the oppressed for generations of dissidents: J’Accuse!
The phrase should not be used lightly. It should be reserved for matters of profound betrayal, extraordinary hypocrisy and high crimes worthy of the charge: Treason!
With McCutcheon v. Federal Election Commission (2014) the United States Supreme Court pushed to the very edge of that criterion. In a series of decisions beginning with Bush v. Gore (2000) the court has set a pattern of repeated and methodical betrayal of democratic principles.
In its cardinal assault on the fundamental tenets of representative government, the court affirmed a standing assumption that citizens do not possess a right to vote. It further refused to consider the most pressing issues of the day: voter disenfranchisement and outright fraud.
In rendering a decision so compromised, convoluted and self-contradictory, the court called on future jurists to discard its precedent value (as if that were possible). The court pleaded ignorance in delivering a commander-in-chief so unprepared and ill-equipped that he was virtually guaranteed to become the disaster that followed. One cannot help but wonder if the court ever reflected on the dire consequences of their decision as President GW Bush stumbled through Afghanistan, Iraq and the near collapse of the global economy. Decisions have consequences and history will account.
Perhaps the worst decision of the modern era, Bush v. Gore was compounded by Citizens United (2010), a decision that defined money contributions by corporate entities as synonymous with speech and therefore protected by the first amendment. CU empowered international corporate conglomerates to deliver unlimited money to electoral campaigns and that in turn led to the rise of the Tea Party and the takeover of congress by the most inept legislators in memory. It is not by accident that a clear majority of the American electorate voted for the party not in power.
The recent decision sets the trend for as long as this court remains in power: Money and its interests will be protected at all costs. Money is the voice whose speech will be broadcast on all stations at all times so that the voices of ordinary citizens can never be heard. Money is the ultimate arbiter of power and everyone who seeks office must bow before its almighty grandeur. When money determines who will be elected from the town council to the regal halls of the United States Senate (and ultimately the White House), our elected officials will represent the interests that empowered them.
Plain and simple, when one voice (or the collective voice of the elite) is entitled to speak out as long and as loud as it pleases, all other voices are muted. Plain and simple, the highest court in the land has scheduled the demolition of our democratic institutions and set the course for aristocratic rule.
When our Chief Justice declares “there is no right in our democracy more basic than the right to participate in electing our political leaders,” he omits the right to vote. Could it be that his political interests are served by this telling omission?
Despite its adherence to a rigid judicial philosophy, consistency has never been the hallmark of this court. The rightwing majority has a marked tendency to wink as it hands down its judgment. In the case of McCutcheon v. FEC the court allowed the limit on individual contributions to individual campaigns to stand though it struck down the total amount a contributor can spend. This too is a revealing exception. It concedes that unlimited contributions to a single campaign could compromise an elected official even while denying that unlimited contributions can corrupt officials in general. Both cannot be true.
It is as if the prevailing justices of the Roberts court know they will be judged harshly in judicial history so they hedge their bets.
It is of little consequence. They have shown their hands. They have declared their intent. They are the enemies of American democracy and there is no immediate remedy. Those in congress who claim that transparency will correct the problem are mistaken. The effects of massive funding injected into the political process will be little mitigated by unmasking the sponsor at the end of a television ad.
The only effective defense of democracy we can hope for is at present remote. It will not happen as long as the court remains as it is. The moneyed interests have taken control of the lower house of congress and they will retain it. They have set their sites on the Senate and they are likely to succeed. If they do so, our cause is lost for the Senate has the power to confirm or reject Supreme Court nominees. If they take the White House (some would say they already have) we will lose access to any remedy for generations.
What we need and what our republic demands is a court that believes in the principles of democracy. If some future court would rule that a citizen has a right to vote that simple decree would open up the lines of defense. If a citizen has a right to vote, the court would have jurisdiction over voter disenfranchisement, election fraud and gerrymandering.
A Supreme Court that actually believes in democracy would consider unlimited financing of political campaigns an affront to common sense and a betrayal of our most sacred principles of government.