Following on the heels of November’s gubernatorial elections in Virginia and New Jersey, the loss of Ted Kennedy’s Senate seat in Massachusetts two weeks ago was a devastating blow to Democratic Party hopes. But it must have been especially devastating to President Obama, who promised an adoring University of Missouri crowd, just before he was elected, that “We are five days away from fundamentally transforming the United States of America.” Yet it would appear, judging from the unrelenting commentary and from the president’s own behavior last week, that those losses pale in comparison to the government’s loss before the Supreme Court two days after the polls closed in Massachusetts. For 11 days now the wailing over the Court’s Citizens United decision has not ceased. Indeed, campaign finance regulation, intimately connected to incumbency protection, is a bedrock principle of modern liberalism.
Exhibit A is E.J. Dionne’s column today in the Washington Post – his second in a week on the subject. Last week, railing against the “reckless decision by Chief Justice John Roberts’s Supreme Court and the greed of the nation’s financial barons,” he charged the Court with “an astonishing display of judicial arrogance, overreach and unjustified activism” and urged “a new populist-progressive alliance” to demand “legislation to turn back the Supreme Court’s effort to undermine American democracy” – including a bill prohibiting political spending by corporations who hire lobbyists, no less.
Today, however, Dionne has last Wednesday’s unseemly episode of Obama rebuking a silent Supreme Court to work with. And, like the immortal Daniel Schorr on yesterday’s NPR Sunday Morning, he puts all the blame on Justice Samuel Alito for seeming to mouth, silently, “Not true” when Obama, before all assembled and a watching nation, tendentiously misstated the holding in Citizens United. But Dionne doesn’t stop there, of course. No, he thanks Alito. You see, “Alito’s inability to restrain himself” brought a long-ignored truth to the nation: “The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.” Likening Obama’s behavior to President Reagan’s writing a 1983 article criticizing Roe v. Wade – I didn’t make that up – Dionne chastises conservatives for their double standard: “Reagan had every right to say what he did. But why do conservatives deny the same right to Obama?” Where does one begin?
Turning finally to “the specifics of Obama’s indictment,” Dionne tries to defend the president’s misstatements, but unfortunately the precision ordinarily expected of such a wordsmith seems to have deserted him. Citing Obama’s claim that the Court had reversed “a century of law” and also opened “the floodgates for special interests – including foreign corporations,” Dionne writes that ”Obama was not simply referring to court precedents but also to the 1907 Tillman Act, which banned corporate money in electoral campaigns.” That’s not what the Tillman Act did: It banned direct corporate contributions to campaigns. Only in 1947 were independent campaign expenditures by corporations (and unions) banned – and more clearly so only in 1990, which is the ban the Court overturned. Moreover, pace Obama, foreign corporations are still specifically banned from contributing anything of value “in connection with a Federal, State or local election.” Thus, in claiming, without more, ”that the ruling opens a loophole for domestic corporations under foreign control to make unlimited campaign expenditures,” Dionne seems simply to be passing along what he’s read or heard from others. Nothing in the Court’s opinion warrants that conclusion.
But it’s Dionne’s larger claim that most demands an answer – that an “activist” Roberts Court, exercising “raw judicial power,” is ”ignoring precedents and the wishes of the elected branches of government.” That’s hardly the definition of “activism.” That’s what the Court should be doing, where it’s warranted by the Constitution, whether the Court is defending the rights of blacks to attend unsegregated schools or of gays to sexual freedom or of corporate owners, the shareholders, to engage in political speech through their corporation consistent with their articles of incorporation and by-laws. The claim that corporations aren’t people is a red herring. Corporate owners are people, and their right to speak can take many forms. Fortunately, we have a First Amendment, which protects not only corporate owners but E.J. himself from all but the error of his ways.
[Cross-posted at Politico Arena]