About a year and a half ago, the Supreme Court decided an landmark case on gun rights, taking up for the first time in 70 years whether individuals have a Constitutional right to own firearms. The case was decided in favor of individual gun owners, overthrowing many state and local gun laws in the process. In general it was probably the right decision, although the full impact has yet to be felt. And in the grand scheme of things, as broad as that decision was, it was still in the realm of deciding a clearly Constitutional issue, no matter whether you agree or disagree with the outcome.
Now imagine if the court had instead of limiting the case, they had decided on much broader grounds, whether individuals had a right to own any type of weapon. Remember, the 2nd Amendment says arms, not firearms. If they had gone so far in such a case, they might have allowed individuals to own nuclear weapons. And that is the equivalent to what the Supreme Court has just done to the First Amendment.
Consider the threat of a firearm. It can be fairly extensive, assault weapons can fire many rounds over a minute, and can harm lots of people. We've seen any number of massacres in this country where a firearm was used, killing up to dozens on people. Still, as bad as it is, it does not represent such a threat that most of us are cowering in fear and wearing body armor whenever we leave our homes.
A nuclear weapon on the other hand represents a very different type of threat altogether. The mere threat of its use can force any number of concessions. Just think of how we have reacted to Iran possibly getting the bomb. It's hard to believe they would ever use the bomb against Israel, but the threat alone may be enough to get many other countries, including the US to grant Iran much of what it wants. That is why so many nations want the bomb. Not to use, but to threaten to use.
That gets us back to the Supreme Court decision this week. Many people seem to think that this will open the doors to more political spending. It almost certainly will, by Home Depot, by Wal-Mart, and many other businesses that have a stake in the political outcome. That is legitimate, even though it will mean that ordinary people, you and me, will have even less say in our government. Full disclosure will tell us who is doing the advertising, and hopefully counter it in some cases.
But this decision goes far beyond that sanitized version. The threat this poses is to any sort of legislation that tries to reign in corporate behavior. In the past, a corporation, acting through lobbyists or PACs could threaten to spend a lot of money against a candidate to stop what they didn't like. Even so, it probably never amounted to more than a few hundred thousand. Not good, but not horrible either, especially with online fund raising. As of Thursday, the sky is the limit. Millions, tens of millions, hundreds of millions could be spent by some of these corporations with ease. That threat would not take with everyone. I think the Alan Graysons and Russ Feingolds would relish it. But how about some of the more marginal senators and representatives? Any chance they wouldn't fold in about 2 minutes. Given their ethics, they might even be able to extract some positive spending on their behalf. And since this would all be done behind closed doors, and no spending might actually take place, full disclosure would be a moot point.
So what to do to counter this. At this point, I see a few possibilities.
- A Constitutional Amendment to limit the fallout. This sounds impossible, but the threat of foreign nations involving themselves in our politics is very real with this decision, and much of the right wing loves the idea of American sovereignty. Ask them how they feel about China or Saudi Arabia (or for that matter the European Union or Japan) engaging in American politics and step back to watch their reaction. This is one instance where I believe our interests align. I'm not sure how I feel about this one though since it would almost infringe on many other forms of free speech that are very important to all of us.
- Legislation that will track independent expenditures and provide candidates with 5% more than those expenditures. This will still allow free speech during campaigns. It might also have the added advantage of showing the futility of excessive independent expenditures, since they would always be at a disadvantage, in terms of raw dollars.
- If the Supreme Court is going to behave like a political body, then it is time to treat them like a political body. Call them up, lobby them, put up campaign ads expressing discontent or even anger at their decisions. Their decision this week should allow ads against themselves as well.
In the end, the Supreme Court has left us with few viable options to dealing with this problem. I have my doubts that any of the above are viable, but maybe something could be worked out somewhere that will deal with this.