The Supreme Court: Equality is Unconstitutional

Ronald Dworkin produced an article for the New York Review of Books that challenges the motives, the methods and the competence of the five conservative Supreme Court justices who seem to be driving the Court in a new and dangerous direction. The article is titled The Court’s Embarrassingly Bad Decisions. We have previously commented on aspects of this article here.

Dworkin also considered the conservative justices’ actions with regard to election campaign funding. The now infamous Citizens United decision greatly expanded the ability of corporations to participate in political campaigning. What the author found particularly troubling was the belief of these conservatives that the free speech rights of corporations were more important than the fairness of elections.

“....the five justices guaranteed corporations a constitutional right to use their own capital for political advertising. They said that the point of the First Amendment is to provide the electorate with as much political speech as possible. They did not deny that the political process would be fairer if candidates and political organizations were more equal in their campaign resources. But the First Amendment forbids infringing free speech for the sake of equality, they said, and so ‘leveling the playing field’ is no justification for stopping corporations or anyone else from spending as much on political advertising as they wish.”

There is a case before the Supreme Court that deals with similar issues, and Dworkin fears the five conservatives will strike again at any attempt to limit the brute force of big money.

“The new case—Arizona Free Enterprise Club PAC v. Bennett—gives the five justices another opportunity to protect the power of wealth in politics. Arizona, like many states, offers public financing to election candidates who agree to limit their spending but permits candidates who refuse public funding to spend as much as they wish. In a 1998 referendum following a series of political scandals, Arizona voters adopted a “Clean Elections Act” providing that if a privately funded candidate spends more than a stipulated amount, other candidates who have accepted public financing receive additional campaign funds from the state.”

Conservative activists challenged this legislation and arguments were heard before the Supreme Court in March of this year. A judgment has not yet been handed down but Dworkin fears that the justices’ comments suggest another blow to campaign equality.

“They agreed with the plaintiffs that the act would ‘chill’ the speech of privately funded candidates who would know that if they spent more than the stipulated limit their opponents would receive additional funding. In that way, they suggested, the act infringes the rights of privately funded candidates to speak as freely as they wish.”

“This is a bizarre argument. The five justices do not challenge the constitutionality of public funding; they hardly could since such funding obviously increases the amount—as well as the diversity—of political speech. But public funding presumably deters many rich candidates from broadcasting dubious claims they would happily broadcast if their opponents had no money to rebut them. Indeed, public funding for potential opponents might well deter some wealthy individuals from running for office and therefore from campaigning at all. The First Amendment can hardly be thought to guarantee rich politicians and organizations that they will not be effectively opposed, even when the possibility of effective opposition might induce them to say less.”

Comments made by Justice Roberts and his cohorts were particularly troubling.

“They repeatedly declared that the real intention of the act was egalitarian—that it was actually designed not to reduce corruption but to make the resources available to different candidates somewhat more equal—and that the act was unconstitutional for that reason. Roberts put the point this way: ‘Well, I checked the Citizens’ Clean Elections Commission website this morning, and it says that this act was passed to, quote, “level the playing field” when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional’?”

What are the implications of this attitude?

“Roberts’s declaration in the new case suggests a malign sleight of hand: that an act passed by popular referendum to promote electoral equality will now be condemned by that motive even if there is no other constitutional objection to it. The enthusiasm with which at least three of the conservatives toyed with the idea that equality is just in itself a forbidden goal gives further evidence that they are driven by political convictions wholly alien to the Constitution—convictions that a genuine jurisprudence of principle must reject.”

The actions of legislators, and the elections that put them into office, are, to a great extent, determined by who has the most money. Wealthy individuals and corporations are therefore in a position to buy elections and the allegiance of legislators. This has long been a problem, and this sorry state of affairs is one of the reasons the country continues to drift towards ever greater income inequality. The primary means of countering this trend is to have elections in which individuals or corporations with deep pockets cannot control the playing field. The only way to institutionalize a degree of fairness into the process is by legislation. The Supreme Court—or at least five members thereof—seems to be saying that any attempt to enforce fair elections is unconstitutional. If equality in elections is unconstitutional, then legislation is hopelessly corrupted, and equality in any matter then exists only at the whim of wealthy individuals and corporations.

How this perverse result can be reconciled with our founders’ intent is beyond me. Dworkin’s outrage at this mutilation of the Constitution is justified.