When a majority of the U.S. Supreme Court's judges recently gave corporations new power to flood money into political ads, the court's senior Republican judge went ballistic.
The court's ruling threatens the integrity of elected institutions by encouraging "corporate domination of politics" and "corruption," warned John Paul Stevens in his scathing 90-page dissenting opinion against the majority's Jan. 21 ruling.
The partisan alignment of federal judges is usually revealed by the presidents who appoint them. Republican President Richard Nixon placed Stevens on an appeals court 40 years ago and Republican President Gerald Ford promoted him to the Supreme Court. So the angry tenor of Stevens' dissent was all the more striking, because he aimed it at the five other Republican judges on the Supreme Court. They formed the majority backing the increase in corporate power.
Stevens highlighted the current Republican trend, because the five justices appointed by more recent Republican presidents appear more ideologically hard-right, especially the two George W. Bush picked—Samuel Alito and John Roberts, who is now chief justice. (The court's three Democratic judges joined Stevens' dissent.)
Think of the court's majority as the Bold Five, because they overturned a century of precedent. Many previous rulings and bipartisan laws passed by Congress and state legislatures all held that governments could limit corporations' political ads. Stevens called it "a dramatic break from our past."
The issue wasn't entirely partisan. Some liberal groups, such as the American Civil Liberties Union, joined right-wing groups in pushing the legal challenge against such limits. They argued that the First Amendment guarantees corporations the same freedom of speech as people have, and that spending on ads is a form of speech. The Bold Five agreed, ruling that limits are "censorship to control thought."
The dissenting judges scoff at that. So do many other liberal groups and 26 state governments—including Montana, Arizona and New Mexico—that filed a brief arguing for the limits. In fact, corporations have many other opportunities to spend on political influence and do it not as a civic duty, but to maximize profits for shareholders who might not even live where elections are held.
"While American democracy is imperfect," Stevens wrote, "few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."
The Bold Five's ruling has long-term implications in the West. It will undoubtedly allow corporations to try to buy more politicians, especially in rural states and local elections where prices are low. It also raises concerns that the Bold Five might overturn another huge precedent—the federal government's use of the U.S. Constitution's Commerce Clause. That clause says the feds can regulate interstate commerce, and over the centuries, it's been stretched to be the basis for many federal laws such as those covering guns and the environment.
Last year, gun-rights activists persuaded Montana's Legislature to pass the Firearm Freedoms Act, challenging the Commerce Clause's imposition on guns. They say that if a gun is made and used within Montana's borders, the feds can't impose regulations. About 20 other states' legislatures are considering joining the gun-rights' challenge of the Commerce Clause, while the feds and the Montana activists are battling it out in federal court. Some legal scholars say the feds will prevail because many previous rulings have allowed such use of the Commerce Clause. But the activists want to take that battle to the Supreme Court's precedent-bashers.
Even if Montana's gun-rights activists fail, there are signs that Chief Justice Roberts might rule that the Commerce Clause can't be the basis for federal environmental laws such as the Endangered Species Act and the Clean Water Act. While serving on an appeals court in 2003, Roberts wrote a dissenting opinion, saying that the Commerce Clause did not allow the U.S. Fish and Wildlife service to impose regulations on a California developer to protect habitat for an endangered toad. Roberts said the case was merely about "the taking of a hapless toad," not interstate commerce.
Libertarian and rightwing groups are trying that argument in environmental cases in lower courts, hoping to push it to Roberts' Supreme Court. The leading green law firm, Earthjustice, has warned that Roberts seems to have "an ideological agenda" for overturning environmental laws based on the Commerce Clause. We may soon see how bold the Bold Five want to be.
Ray Ring is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is the magazine's senior editor in Bozeman.