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Republican Justice(s) | The Nation

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Republican Justice(s)

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If Bush v. Gore was not proof enough that the Supreme Court is now the judicial arm of the Republican Party, Citizens United v. Federal Election Commission should erase any doubts. The 5-4 decision this past January, which overturned a century of statutory and judge-made law, freed corporations to draw on the trillions of dollars in their treasuries to back their Republican allies and overwhelm the opposition. What John Marshall called an "artificial being" now has the power to influence election outcomes far beyond that of any natural person.

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About the Author

Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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Unfortunately, Bush v. Gore and Citizens United don't stand alone. The past ten years have seen a series of decisions tilting the electoral playing field toward the Republicans, all of which violated established legal and constitutional principles.

As James Madison foresaw, democratic politics is shaped by a continuing struggle between the haves and the have-nots. The former have the money but the latter have the numbers, and in a democracy, numbers are what is supposed to count. The Republican Party, the political organ of the haves, has therefore adopted a two-part strategy: the first part calls for efforts to reduce the have-nots' share of the overall population, which determines the composition of the House of Representatives, as well as their proportion of the voting population; the second part of the strategy is to spend massive amounts of money to dominate the public debate.

The Constitution requires an "actual Enumeration" of the population every ten years, after which "Representatives shall be apportioned among the several States according to their respective numbers"; a similar enumeration is used for allocating federal dollars to states and localities. The problem is that even with the most advanced canvassing and mail techniques, the census undercounts minorities, the poor, immigrants, children and renters, the eligible voters among whom generally vote Democratic. In 1990, the census missed more than five million people—mostly immigrants and urban minorities, including 4.9 percent of all Hispanics and 4.6 percent of all blacks—while double-counting numerous whites.

Modern statistical sampling techniques make possible a more reliable count, so for the 2000 census the bureau proposed to sample a small segment of the population to supplement the traditional methods. That would have added millions of people, most of whom would almost certainly be from Democratic areas. This obviously did not sit well with Republicans and to prevent any sampling, the Republican-controlled House of Representatives filed suit in 1998.

Writing for the Court's five right-wing justices, Justice Sandra Day O'Connor admitted that two recent Census Act amendments could easily be read to authorize sampling. In fact, that was the only reading that reconciled the two provisions. Nevertheless, she looked to prior practice and Congressional attitudes going back over 200 years—even though accurate survey techniques are relatively new—and barred sampling for legislative apportionment. The Court thereby forced the bureau to use a method for deciding who would govern the nation that everyone knew would produce an inaccurate result, hardly what the framers could have wanted.

The result of the 2000 census was preordained: after the census was taken, a 2003 study by the bureau concluded that the official numbers missed some 628,000 blacks and 248,000 Hispanics and overcounted 2.15 million whites. And because sampling is still forbidden, the 2010 census is equally likely to undercount these same groups, especially immigrants who in today's toxic anti-immigrant atmosphere avoid contact with any government agency. States with large minority and immigrant populations will thus have substantially less representation in Congress than they are entitled to.

Superficially neutral voting requirements have long been an effective device for suppressing the low-income vote. A 2005 Indiana law, adopted by a Republican-controlled legislature by a straight party-line vote, requires registered voters to present a current photo ID at the polls.

After this law was passed, Democrats immediately attacked the law on its face. A 6-3 majority of the Supreme Court upheld the statute but split three ways. In the lead opinion in Crawford v. Marion County Election Board, writing for himself, Chief Justice John Roberts and Justice Anthony Kennedy, Justice John Paul Stevens—who doesn't like facial challenges—accepted the state's claims that the law was necessary to avoid voting fraud and that the burden of obtaining an official photo ID was not particularly onerous. He did acknowledge that some people might find it hard to get such an ID and left open the possibility of a challenge to the statute in such a case.

In fact, there was and is no evidence at all, either in Indiana or elsewhere, of in-person fraud at the polls, despite persistent efforts by the Bush administration to find some. Fraud does exist, but primarily in absentee voting. On the other hand, obtaining an official photo ID can be neither cheap nor easy. Most people obtain an official photo ID when they get a driver's license, but in 2002 some 12 percent of Americans did not have one. Most of these are obviously the poor, elderly, immigrant or minority, and are easily deterred from voting.

The other element of the Republican strategy—overwhelming the opposition by spending huge amounts of money—went into high gear in the early 1970s. It was triggered by a 1971 memo to the Chamber of Commerce by Lewis F. Powell, two months before he was nominated to the Supreme Court; the memo did not come to light until years after. Powell was a conservative business lawyer and a Democrat, but in those days Southern conservatives could be Democrats while acting like Republicans.

Business was under attack from those who would regulate it like advocates concerned with "consumerism" and the "environment," warned Powell. The issue was "survival," and business must fight back: "Political power must be assidously [sic] cultivated....and penalize politically those who oppose it." He also urged business to use the courts, which offer "a neglected opportunity" to achieve major economic and social change. He stressed that business must work at shaping public opinion.

Republican businessmen like Justin Dart and David Packard immediately embraced Powell's ideas, as did the Chamber of Commerce, which began to pour money into lobbying and into political races.

At first, the courts provided few successes. After allowing corporate spending on referenda, in 1990 the Supreme Court reaffirmed the long-standing ban on corporate expenditures in partisan candidate elections except for those funneled through PACs, separate segregated funds contributed by corporate executives and shareholders. Otherwise, wrote Justice Thurgood Marshall, such expenditures would produce "corruption in the political arena" by using " 'resources amassed in the economic marketplace' to obtain an 'unfair advantage in the political marketplace'" and thereby distort the public debate.

Ten years later, however, the judicial strategy began to pay off. First came the census decision and then Bush v. Gore. Two years later there was another major victory.

In the 1990s the Republicans realized that state Supreme Court judges decided many issues vitally affecting business such as consumer protection, business and corporate regulation, and tort law. The Chamber of Commerce and others began to pour money into states where judges were elected; in Texas Karl Rove helped turn the Texas Supreme Court into a haven for business.

One problem with this strategy was that most states with elected judges did not allow them to campaign openly. In 2002 the Supreme Court's right wing disposed of that. In Republican Party of Minnesota v. White, they used the First Amendment free speech clause to strike down an ethics rule, common to all but a few states with judicial elections, that candidates may not "announce" their views on "disputed legal or political issues." Denying any significant distinction between legislative and judicial "law-making" despite their fundamentally different character, Justice Antonin Scalia characterized both judges and legislators as "representatives" of the voters and allowed judges to campaign like legislators.

The impact has been catastrophic. The cost of judicial campaigns has soared. Between 2000 and 2009 state supreme court judges raised $206.4 million in campaign funds. According to a 2004 Carnegie Corporation report, "the White decision helped open the floodgates to increasing amounts of special interest money" producing "a perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special-interest politics." Respect for the integrity of state courts has plummeted. Polls show that more than 70 percent of voters believe money influences judicial decisions.

The primary spender and beneficiary has been the business community. National Public Radio's Nina Totenberg reported in 2007 that "business interests spend [about] twice as much money on state high-court elections than all other groups combined," including lawyers, overwhelmingly to Republicans. And they have been getting what they wanted. One judge observed that trying to ignore big money in judicial elections is like trying to ignore the crocodile in your bathtub.

In Citizens United, the Republicans finally achieved their other major goal: corporations can now spend all they want to support their favorite candidates and penalize opponents.

Whether it will be as "devastating" as some like Ronald Dworkin think, is not yet clear but the signs are ominous. The ruling has spurred Republican lawyers to challenge other campaign finance laws including the McCain-Feingold law banning soft money. Given the current Supreme Court, they could succeed.

Citizens United itself is a thoroughly unprincipled and legally insupportable decision. In the first place, the case didn't have to be decided on broad constitutional grounds. Constitutional rulings are supposed to be avoided, and this case could have been decided for Citizens United on any of four statutory grounds. In fact, the constitutional issue was not even properly before the Court. Expressly abandoned by the plaintiffs in the trial court, it was not among the questions presented and was raised only by the Court itself, an unusual and dubious procedure. As dissenting Justice John Paul Stevens said, "They changed the case to give themselves an opportunity to change the law."

On the merits, as Justice Stevens pointed out, the majority opinion was based on unsupported assertions, baseless assumptions, flimsy arguments and unwarranted speculation, for since the constitutional issue was abandoned early, no factual record on the issue was developed. The authority for all this consisted primarily of dissents by Scalia and other right-wing justices, while a consistent line of federal and state, legislative and judicial precedents, as early as 1907 and as recent as 2003, was ignored or overturned. Basic principles of judicial restraint such as deference to federal and state legislators on matters in which they have a special competence were ignored.

Moreover, although the majority constantly invoked a corporation's right to express its views, the prior law did not prevent corporations from speaking out. It just required them to use segregated funds provided by those executives and shareholders who supported those views and not by the shareholders at large.

In dissenting from the lower court's decision upholding the Indiana statute, former Seventh Circuit Chief Judge Terence T. Evans wrote, "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." The veil at the Supreme Court is just as thin.

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