Saturday, January 23, 2010

Catch 2010

It is organic to liberalism that its adherents argue amongst themselves as arduously as they do with their adversaries.

Thus the liberal blogger, lawyer, and expert on Constitutional law, Glenn Greenwald, sees the Supreme Court decision on corporate campaign spending in a somewhat different light than many other liberals.


"Critics emphasize that the Court's ruling will produce very bad outcomes:  primarily that it will severely exacerbate the problem of corporate influence in our democracy.  Even if this is true, it's not really relevant.  Either the First Amendment allows these speech restrictions or it doesn't.  In general, a law that violates the Constitution can't be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes). 

"Those who want to object to the Court's ruling need to do so on First Amendment grounds.  Except to the extent that some constitutional rights give way to so-called 'compelling state interests,' that the Court's decision will produce 'bad results' is not really an argument.

"More specifically, it's often the case that banning certain kinds of speech would produce good outcomes, and conversely, allowing certain kinds of speech produces bad outcomes (that's true for, say, White Supremacist or neo-Nazi speech, or speech advocating violence against civilians).  The First Amendment is not and never has been outcome-dependent. The Government is barred from restricting speech -- especially political speech -- no matter the good results that would result from the restrictions.  That's the price we pay for having the liberty of free speech.  And even on a utilitarian level, the long-term dangers of allowing the Government to restrict political speech invariably outweigh whatever benefits accrue from such restrictions.

"The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin:  "banks own" the Congress).  Corporations find endless ways to circumvent current restrictions -- their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold -- and while this decision will make things marginally worse, I can't imagine how it could worsen fundamentally.  All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical.  There's not much room for our corporatist political system to get more corporatist.  Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday's issuance of this ruling?"

I cede to Mr. Greenwald the First Amendment argument.  I continue to disagree with him about the outcome of the court's ruling.   Things will "worsen fundamentally."  Here's why:

The solution to what the court has done is legislative.  It behooves Congress to enact Constitutional laws that protect both the integrity of the election process and the right of free speech. But no-holds barred spending guarantees that corporate-controlled candidates will win still more seats in Congress.  This militates against our ever achieving fair elections, that is,  elections in which the "compelling state interest" in the health, welfare and liberties of  "We the People of the United States" are protected against competing interests that have vastly more money to spend.

It's Catch 2010.  Only a fairly-elected Congress can find a fair and democratic solution to the campaign finance dilemma.  Now we never will have a fairly-elected Congress to do so.

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