“There is no right more basic in our democracy than the right to participate in electing our political leaders.” That’s how Roberts began the opinion.
So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.
– The REAL News From the McCutcheon v. FCC Opinion, me, Apr. 3
Actually, I had thought the most basic right in our democracy was the right of states to violate individuals’ constitutional rights as they chose, courtesy of the fundamental constitutional principle of states’ equal sovereignty. So my post and its title were intended as facetious. But then AB reader Alex Bollinger reminded me in a comment to my post that Antonin Scalia had written in his concurrence in Bush v. Gore that the Constitution contains no generic guarantee to the right to vote.
I mean, sure, the Fifteenth Amendment says:
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
But those Reconstructionist types who drafted and ratified that Amendment hadn’t checked with James Madison before presuming that there was a right of citizens of the United States to vote. And, more important, they hadn’t checked with Roger Taney.
In any event, Scalia, by joining Roberts’ opinion in McCutcheon, now agrees that the Constitution indeed guarantees a right to vote. It does so in the First Amendment, which James Madison participated in drafting! And which Roger Taney probably approved of. (Whew!)
While that first sentence in McCutcheon doesn’t directly identify the First Amendment as the source of the right to participate in electing our political leaders, elsewhere in McCutcheon the First Amendment is expressly credited as guaranteeing that right.
I realized that this morning when I read Linda Greenhouse’s op-ed in today’s New York Times in which she pretty much sums up John Roberts along with McCutcheon. She writes:
It wasn’t until the Roberts court’s Citizens United decision in 2010 that the court shrank the definition of corruption to quid pro quo bribery. To assess the implications of that shift, it’s important to remember what Citizens United was about: not direct contributions, which remain prohibited to corporations, but independent spending. In the Buckley decision and since, the court has accorded greater First Amendment protection to independent expenditures than to direct contributions, which it has viewed as more tightly linked to the anti-corruption rationale and thus properly subject to tighter regulation. To say that only quid pro quo corruption can justify a limit on independent expenditures was not to similarly limit the rationale for regulating direct contributions, the subject of the McCutcheon case.
But in his McCutcheon opinion, Chief Justice Roberts collapsed the distinction between the two, extending Citizens United’s narrow definition of corruption to direct contributions. The government “has a strong interest,” he wrote, “in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.” Justice Stephen G. Breyer’s dissenting opinion called the chief justice out on this maneuver, but in vain.
Greenhouse’s main focus in that op-ed is Roberts’ ridiculously transparent pretenses to judicial minimalism, in McCutcheon and in his opinion last year striking down the key section of the Voting Rights Act case on the fundamental constitutional principle of states’ equal sovereignty introduced in 1885 by Chief Justice Taney in Dred Scott v. Sanford, and dormant since the Civil War began in 1861 until last year. What Roberts actually is doing, as I wrote here in a series of posts, and as Greenhouse makes clear, is effectively rewriting the standard for judicial review of federal and state laws so that it’s now simply a game of sophistic, sleights-of-hand analogies and of redefinitions of common words and phrases.
Earlier this week, in what I thought would be my final post on that subject, I suggested that liberals should plan to pick up that Supreme-Court-can-now-casually-repeal-statutes-it-doesn’t-like ball and run with it, once they regain a 5-4 majority on the Court. I said that there were several statutes that I could think of offhand that would be good candidates for this, including some that actually are unconstitutional, not necessarily as written but as the current Court majority has interpreted them, and as an example I cited the Federal Arbitration Act, which as it happens, is the law at issue in another article in the New York Times today: This one. (H/T Dan Crawford.)
And aren’t some of those anti-labor-union sections of Taft-Hartley unconstitutional?
But more immediately–and deadly seriously–I see no even-remotely logical ground upon which the state statutes that remove the franchise from convicted felons can survive McCutcheon’s statement that even corruption, other than that of the direct, explicit quid pro quo variety, cannot be limited, because we must ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. Remember: This prohibition is in election-law statutes, not in criminal-sentencing statutes, which shouldn’t, but could, make a difference. I hope challenges to those state laws begin soon.
Greenhouse points in her op-ed to a passage in McCutcheon in which Roberts justifies the de facto overruling of a part of Buckley v. Valeo, the first post-Watergate Supreme Court opinion that addressed campaign-finance law, by saying that, well, Buckley concerned another federal statute, not McCain-Feingold, which was enacted in 2002–and since Buckley, the Court’s conservative majority has partnered aggressively with usual-suspect Conservative Legal Movement lawyers and groups to rewrite First Amendment jurisprudence as a deregulation juggernaut. Regulatory statutes that crowd doesn’t like but can’t repeal through the legislative process can be struck down as violations of the First Amendment! Call it playing the First Amendment card.
Which of course could butt up against the fundamental constitutional principle of states’ equal sovereignty. But which, in light of McCutcheon, would look like pure partisanship, concerning state election laws that deny the vote to convicted felons. Which may not matter.
As I suggested in another post this week, liberals and libertarians can play the McCutcheon First Amendment card in another respect: pushing for legislation (or an SEC rule) that would prohibit publicly-traded corporations to from making political expenditures–and, eventually, direct campaign contributions–unless the corporation first gets approval from a majority of shareholders. As I pointed out in that earlier post, a passage from McCutcheon itself seems to imply that the First Amendment right of citizens to choose who shall govern them is a right of personal choice that, Citizens United notwithstanding, cannot be co-opted derivatively without intentional delegation.
I ended that post by saying that the conservative majority’s petards can hoist only so much before shrapnel lands so visibly in unintended places that it becomes impossible to hide it. And, who knows? Maybe I’m right.
*Cross-posted at The Law of the Jungle.