On The Last Word on May 1st, substitute host Ari Melber interviewed Professor Geoffrey Stone about testimony given this week by retired Supreme Court Justice Stevens. Professor Stone wants the Court to reverse itself, but never mentions what could be the main obstacle to that, stare decisis, a judicial “principal that the precedent decisions are to be followed by the courts.” As you listen to this, remember that the doctrine — money is equivalent to speech — goes back to Buckley v Valeo (1976). Justice Stevens had joined the Court after oral arguments were heard and did not vote on that decision.
Ari Melber has a law degree, which is why it was surprising that he did not ask how a future Court can overturn the 38 year old doctrine that money is equivalent to political speech given the Court philosophy of stare decisis. Even though the Roberts majority ignored stare decisis in the Citizens United ruling, specifically waiving the relevance of the doctrine when it overturned the 1990 decision in Austin v. Michigan, it also honored the doctrine with respect to Buckley. Whether or not a liberal majority (should one come to pass) would be compelled to respect stare decisis in the wrongful decisions of Citizens United and McCutcheon v. FEC is an open question.
Another obstacle is the conservative make-up of the Court. Until one of the Roberts Five retires and gets replaced, the Citizens United and McCutcheon decisions will not be overturned. The unfortunate condition we’re faced with is that electing presidents to nominate judges who will support fair elections (a “level playing field”) may require fair elections. This is another significant obstacle to having the Court reverse itself which Melber also neglected to query Stone about. Stone is correct; Congress cannot do much about the Court’s redefining of the First Amendment.
Contrary to the framing presented by Stevens, Melber and Stone, there is no need to regulate speech; it’s the money spent on speech that Congress should, once again, have the power to control. The First Amendment does not need to be amended. It is the Court that amended the First Amendment when it decreed money to be equivalent to speech, and, again in 1976, when the Court granted First Amendment rights to corporations. The task at hand is restoring the First Amendment. “Equal opportunity” would then come from comprehensive campaign finance reform limiting money spent on television and radio advertising, not from curbing the content of speech in any way. Given what he said about money not being speech, perhaps this is what Justice Stevens meant.
Melber asked, “compared to what?” Compared to constitutional campaign finance reform which was in place in the U.S. until January 30th, 1976. Compared to rights — as written in the Constitution — being applied only to persons, not to creations of law (corporations, PACs, unions, etc). Compared to what Americans had before the Court began to corrupt constitutional rights in various ways. To Senator Cruz’ concern, the press is already protected by the First Amendment to print any opinion they wish, but should the NY Times corporation itself (or Newscorp, Comcast, etc.) be allowed to run paid ads for candidates in other newspapers, on other television channels, etc?
Professor Stone was correct toward the end of this discussion; the problem is at a constitutional level. Massive public pressure needs to be brought to bear on Congress to pass a carefully worded, restorative amendment to repair the damage to the First Amendment wrought by plutocratic and/or corporate, anti-democratic decisions which have transformed the United States into an oligarchic, corporate state controlled by wealthy factions. Better to have a pro-active strategy than Professor Stone’s wishful thinking about the future make-up of the Supreme Court and its decisions.