“My rackets,” Al Capone once told an interviewer, “are run on strictly American lines and they're going to stay that way.”
That’s the line Tom DeLay will try on a judge now that five members of the U.S. Supreme Court have ruled that previously illegal corporate campaign contributions are protected free speech.
“Just facilitating freedom, yer honor.” That’s all the former House majority leader was doing when, as his felony indictment alleges, he laundered illegal corporate donations to enhance the electability of a handful of Texas lawmakers. They, in turn, got elected and set out to redraw Texas congressional districts to DeLay’s liking.
Oh, my. Hear the violins now that the court has spoken. What high minds, those of the proponents of opening the floodgates of corporate giving.
“For too long, some of this country have been deprived of full participation in the political process,” said Senate Republican leader Mitch McConnell.
Tears flow like Cabernet, thinking of the dispossessed players unable to buy a friend over the table because of federal law and proscriptions in a host of states, some dating back a century.
Yes, it’s clear as day that corporate hegemony always finds a way. That, however, does not mean states and the federal government should not attempt to blunt business’ role in campaign spending.
First Amendment rights? Equating campaign largesse with free speech, as the Scalia-Roberts wing did on the court, is akin to saying that bribery is akin to coffee talk. Legislature after legislature, court after court, Congress after Congress, each has affirmed the function of limiting corporate “speech” in said fashion. It is a legal principle underpinned by the fact that political campaigns are a joint public endeavor. To enter the fray with campaign dollars, you play by rules agreed upon by the electorate.
Pshaw, says a Supreme Court majority sculpted by those who decried “judicial activists” — you know, judges who make law and ignore the will of legislatures.
Yeah, what about those judicial activists — Roberts, Scalia, Alito, Thomas and Kennedy? They certainly told lawmakers where to stick it.
This brings up a matter that those who actually pay attention to the courts have pointed out. The so-called conservatives in our appellate courts have been just as inclined to overturn laws as their liberal counterparts, though a steady hard-right rallying cry is “out with activist judges.”
Syracuse University political scientist Thomas Keck has the numbers to silence the pitchfork bearers. In his 2004 book, The Most Activist Supreme Court in History, he points out that the late Rehnquist court had the highest score of overturning laws since the country’s infancy. Yes, the Warren Court was the second most activist, signaling as it did dramatic shifts on behalf of civil rights and setbacks for states rights.
“Modern conservatives,” Keck wrote, “tried to curtail the liberal activism they inherited from the Warren Court, while simultaneously seeking to develop a new conservative activism of their own.”
This just shows that appellate courts are empowered to do what courts do: write law. It also shows that the legislative branch sometimes needs to rise to the occasion to make right with the popular will relative to what courts might do.
That’s what President Obama and Democratic leaders say they will do by tweaking campaign finance laws. All should acknowledge, however, that until full public financing is the rule of the land, the Al Capones of campaign finance will figure out ways to carry far more power than you and me, and they’ll find bag men in power who, like Tom DeLay, will always be there for a song.
John Young writes for Cox Newspapers. E-mail: firstname.lastname@example.org.