How in the world will the republic survive the Supreme Court's decision today? Sen. Russ Feingold, the Wisconsin Democrat who favors free speech except when it matters, vowed (in so many words) to unleash a terrible vengeance in retaliation.
"In the coming weeks," Feingold said, "I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible." (Trust me, that's as much a threat as it is a promise.)
And New York's Chuck Schumer assailed the court's "activist and far reaching decision," which, he claims, "opens the floodgates and allows special interest money to overflow our elections and undermine our democracy." Schumer, who knows a thing or two about special interest money, and his colleagues would have Americans believe that the court's modest decision Thursday fundamentally alters the way campaigns are financed in America. But all of the hemming and hawing about "opening the floodgates” ignores the reality that the floodgates have always been open. The flood of money and influence-peddling had simply flowed through different channels to the same destination.
As Roger Pilon counsels at Cato's At Liberty blog, let's all take a deep breath and dispel one big myth about what the justices did and didn't do: "(C)orporations still cannot...contribute directly to campaigns." More importantly, Pilon writes, this business of curtailing the First Amendment in the name of preventing "corruption" should be put away once and for all.
Half of our states, states like Virginia, have minimal campaign finance laws, and there’s no more corruption in those states than in states that strictly regulate. And that’s because the real reason we have this campaign finance law is not, and never has been, to prevent corruption. The dirty little secret — the real impetus for this law — in incumbency protection. How else to explain the so-called Millionaire’s Amendment, which the Court struck down in 2008. That little gem in the McCain-Feingold “reform” package exempted candidates (read: incumbents) from the law’s strictures if they were running against a self-financed “millionaire,” who could not be prohibited from spending his own money campaigning. Thus, the nominal rationale for the incomprehensible edifice we call “campaign finance law” — to prohibit corruption — suddenly disappeared if you were running against a millionaire. Well, the Court, fortunately, saw right through that. And a majority on the Court saw the light in today’s decision, too. The First Amendment is not a “loophole.” It’s the very foundation of our democracy, and we are the stronger today for this decision.
Today’s Court overturned the will of the people as expressed through Congress and the president — typically a hallmark of “judicial activism” charges lobbed like hand grenades by conservatives. And it departed from the Court’s own long-expressed understanding of the Constitutionality of such laws. Departing from precedent is not not activist.
Two points. First, Justice Kennedy discusses the weight of precedent on this case at considerable length in the Court's majority opinion. Down a couple of espressos and have at it!
Second, Joel forgets -- as many conservatives have conveniently forgotten when it suited them, too -- that the judiciary is a co-equal branch and that the will of the people must be reasonable and constitutional to prevail. The bottom line is precedent should not be binding always and evermore if a decision is wrongly decided or misapplied. Otherwise, we'd be stuck with Dred Scott and Plessy v. Ferguson.