Wednesday, March 17, 2010

Dred Scott Revisited

The estimable Lawrence Lessig was hired last year by the Safra Center for Ethics and was to get paid to spend five years studying corruption. His will be a busy five years no doubt. In reviewing the recent Supreme Court decision opening the doors to the unlimited sale of our electoral process to corporate money Lessig proposes a new constitutional amendment to limit the damage. Danette turned me on to this essay found here:

http://www.tnr.com/article/politics/citizens-unite so you can read it yourself in full.


It must be obvious to anyone that pays attention to my political beliefs, that I think the five to four vote by the Supreme Court was a classic error on the level of the Dred Scott decision before the Civil War. In that one, declaring Blacks were not US Citizens and thus unable to seek emancipation from the courts even when living in "free states" the vote came by 7 to 2 which pretty much guaranteed war two years later. At that time the court declared that had they decided Scott and his wife were able to petition for their freedom, having lived in free territories (declared such by the Missouri Compromise) they would have deprived the widow Emerson of her property whether or not her property resided in free states. Which, looking back from this place in history makes that Supreme Court look as mad as a flock of loons, and I am confident that given a hundred years this shower will end up the same way in the eyes of history.
Harriet and Dred Scott

Given that the current court is split four to four with Justice Kennedy the swing vote we are stuck in a parallel universe of lawmaking which is dependent on his ego for sanity to prevail. Don't get me wrong, any grouping that rates David Souter as a "liberal" is not a liberal grouping that I would consider joining, but it's the best we've got at the moment. In writing the dissent Senior Associate Justice Stevens shocked people who fancy themselves "court observers" by sarcastically suggesting that corporations should get the vote as that too is a form of speech. He isn't given to bitterness but you can see his point. I remember a time when Stevens was a middle of the road justice with some towering intellects on the left of the Supreme Court. His elevation to liberal is just a reflection of the times.


Had the 1858 Supreme Court voted in favor of the Scotts' petition they would have overturned effectively the Missouri Compromise and precipitated a flood of black refugees from the south. Thus in making their political calculation they voted in a way that defies common sense (and denies the revisionists assertion that slaves were happy as slaves). Similarly today, had the Supreme Court voted in favor of the Federal Election Commission they would have denied corporations the right to essentially buy our elections. The notion that corporate interests should be allowed to buy our elections is totally at odds with the common sense position that votes decide elections and a free voters should cast their votes in the land of the free.

The Citizens United vote lifts the ban on corporations (and by implication on Unions) on spending unlimited amounts of money on explicit election advertising. These days, elections are a money making machine for television which is where the loudest debates occur especially in large electoral jurisdictions. By allowing a free-for-all in corporate funding and by not explicitly banning foreign corporations from joining in the fun, the Supreme Court has effectively turened our elections, what was left of them, on their head. The sort of money a corporation can throw at buying TV time will make a mockery of town hall debates on any subject at any time.

Lessig's solution comes from the mind of an academic. He's like to see the 28th Amendment to the US Constitution read like this:

Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.

It's a clever proposal because it doesn't supply a blanket negation of the "rights" of corporations, thus sustaining previous Court rulings on the ridiculous notion of the person-hood of the corporate being. What it does do is forbid campaign spending by non citizens, a pale reflection of Dred Scott 150 years later, this time to support democracy. Corporations foreign or domestic are not citizens. Of course by Lessig's own account there would be a rather large hole in the Amendment which would allow citizens to take up spending on behalf of non citizens but one hopes greater transparency in electoral law could cover that (if citizens bother to pay attention).

I think the proposal would enrage corporate leaders who see nothing clever or funny about an idea that deprives them of the power to rule. Besides where will you find the necessary two thirds of the State legislatures to vote a double negative into constituional law? They couldn't pull their socks up high enough to give women equal rights! I wonder if Citizens United could ever be the precursor to what Dred Scott became? An historical footnote to a conflagration. We should all be like Lessig and find a secure berth to see us through the next five years.

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