Balkinization  

Saturday, January 23, 2010

The Ghost of Campaign Expenditures Past

JB

Larry Lessig begins his critique of Citizens United by contrasting the Justices of the Supreme Court with Senators and Congressmen:

Whatever else one believes about the Supreme Court's decision striking down limits on corporate speech in the context of political campaigns, there's one thing no credible commentator could assert: That money bought this result.


At the risk of Larry not regarding me as a credible commentator, I beg to differ. The structure of campaign finance law matters considerably to how the Constitution gets interpreted over time.

Electoral politics, heavily influenced by monetary contributions, shapes who becomes President and who serves in the Senate. However, federal judges are appointed by the President and confirmed by the Senate. Once appointed, they serve for life. The current composition of the Supreme Court is shaped not by the latest elections, but by a string of previous elections. Its current composition was pretty clearly the result of the power and influence that money created. This was true during the Gilded Age, and it is no less true today. It is not an accident that the Supreme Court during the Gilded Age mostly sided with the interests of railroads, trusts, and other large business entities, even going so far as to hold the income tax unconstitutional in 1895 and temporarily eviscerating the antitrust laws in the Sugar Trust Case the same year.

It is not an accident that many of the Justices appointed after the Civil War had significant connections to railroads and other large businesses enterprises; many of them were attorneys who represented the railroads. Installing lawyers friendly to business interests as Supreme Court Justices was one (but not the only) goal of the Republican Party during this period in history, and during that period the Republican Party also dominated Presidential politics. (The lone Democratic resident of the White House during this period, Grover Cleveland, was a business friendly Democrat who was very different from a populist candidate like William Jennings Bryan). The influence of money on the two political parties during the Gilded Age produced the kinds of Justices who sat on the Supreme Court during the Gilded Age. This certainly does not explain all of these Justices' decisions; it simply helps us understand why these Justices were generally friendly to business interests, especially near the turn of the century when enough of them had been appointed to constitute a clear majority on the Court. The Presidents who appointed them and the Senates that confirmed them wanted people on the bench who would likely decide cases in certain ways and not others. The Justices' principled constitutional views meshed well with the needs and interests of the politicians who appointed them.

Sandy Levinson's and my theory of partisan entrenchment argues that Presidents generally attempt to install jurists who agree with their constitutional and policy positions on the issues most important to them. For at least thirty years, most Republicans, and especially the most ideologically committed conservative movement Republicans, have argued against the constitutionality of campaign finance laws on first amendment grounds. John McCain was considered a "maverick" precisely because he bucked this standard view. It is not an accident that the current Senate Majority leader, Mitch McConnell, brought the first challenge to the McCain-Feingold law that the Supreme Court has now struck down. Republicans, far more than Democrats, have sought to free campaign finance from regulatory control, and have argued in favor of the right of corporations, as first amendment actors, to influence the political process.

Justice Sandra Day O'Connor, who was not a movement Republican, was replaced with Justice Samuel Alito, who is. With this switch, four movement Republicans plus a conservative libertarian (Anthony Kennedy) have created a Supreme Court majority which has put the constitutional views of the conservative movement into law.

It is true that nobody bribed the Justices to decide as they did. They did not have to. The Justices in the majority are not corrupt: they sincerely believe that their views about the First Amendment are correct. Past electoral influence has been laundered into present juridical conviction.

This is the genius of partisan entrenchment: The Supreme Court we have today is the ghost of campaign expenditures past.

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