8 Ways the Supreme Court Has Been Destroying American Democracy

Election '16

Most people have little idea how badly the U.S. Supreme Court has damaged American democracy.

It’s not just watching a handful of billionaires drive the Republicans’ 2016 presidential contest from the inside out, as a result of the Court’s Citizens United ruling in 2010 and others that followed. There’s been a long line of anti-democratic rulings going back decades that have narrowed who can—and cannot—participate in politics, from citizens to candidates to parties and reformers.  

These maddening problems and their source fill the pages of a striking new book about the First Amendment and what the Bill of Rights is really about from New York University legal scholar Burt Neuborne. It’s called Madison’s Music, named after the Bill of Rights’ author James Madison. Neuborne explains how core democratic rights have been shredded by decades of narrow-minded rulings that intentionally ignore Madison’s tapestry envisioning a populist, people-centered, activist politics.

What follows are a list of eight gigantic problems caused by decades of misreading the founding document of American democracy. These don’t just include how the rich have more influence, but how the big political parties have suppressed competitive elections, and how the system’s mechanics discourage millions of people from participating.

“We’ll never do Madison full justice until we revere him as a great poet—not a literary poet like Wallace Stevens, but a political poet like Abraham Lincoln,” Neuborne said. “The fact is that for more than fifty years Supreme Court justices operating inside doctrinal silos have shaped the quality of American democracy without once asking what kind of democracy they were building,”

“The justices do not ask why the ten amendments constituting the Bill of Rights open with the protections listed in the First Amendment or why the forty-five words and six ideas in its text are ordered as they are,” he said, launching the discussion.

1. First big mistake: making free speech the top right. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” What makes this declaration so brilliant is that it isn’t only about free speech, Neuborne said, but about protecting ideas and beliefs as they arise in one’s conscience and make their way into the political world and democratic government.

“The Bill of Rights opens with a blueprint for an ideal ‘city on a hill’—a place of respect for individual conscience, robust political discussion and democratic self-government,” he explains. It starts with acknowledging that freedom begins in the individual spirit and goes into the world as people speak. But lone voices need to be amplified so others can hear, which is where the press comes in. And for people who cannot speak as well as others, it permits peaceful protest and the right to petition the government for change.

But what’s happened is the Supreme Court has elevated the free speech clause to be the most important part of this process, Neuborne said. Then the Court gave that elevated right to the rich, by ruling that spending money is the highest form of speech: not having a right to hear ideas, not organizing, nor protesting nor petitioning government. What has that wrought?

2. Giving the rich disproportionate political power. This isn’t a new trend, but it has gotten worse. In the mid-1970s, Congress passed a law limiting campaign spending by wealthy individuals—and the Court tossed it out. A few years later, corporations were given rights to spend money in ballot campaigns. Most recently, its rulings have deregulated spending limits on corporations and the wealthy, yielding the 2016 landscape where a handful of billionaires and super PACs have super-sized roles in picking presidential candidates—at least for the GOP—and voters are an afterthought. Here’s how Neuborne puts it:

“Supercitizens of both parties set the national political agenda, select the candidates, bankroll the campaigns (virtually all campaign contributions and expenditures come from the top 2 percent of the economic ladder), and enjoy privileged postelection access to government officials (whose telephone call does a busy senator take?). Membership in the supercitizen tier is neither defined by law nor confined to the wealthy. It is possible to be a supercitizen on the basis of talent, fame, good looks, family status, inheritance, or sheer persistence. But money gets you in no questions asked.”

3. Thwarting efforts to balance big money. The simplest solution to the private financing of politics and the outsized influence of the wealthy after Election Day is to have taxpayer-funded campaigns. Many states, even some red ones such as Arizona, have tried to do exactly that to help underfunded candidates. But the current Court “said no, ruling that matching campaign subsidies unconstitutionally ‘penalize’ the free-speech rights of rich candidates,” Neuborne writes, giving one of many examples where a narrow-minded ruling ultimately eviscerates Madison’s plan for a democracy.

4. Giving corporations more political power. A century ago, corporations were seen as having too much power and were banned from spending money in elections. “Congress, following the advice of Teddy Roosevelt, sought to wall off the vast trove of corporate wealth from our elections,” Neuborne wrote, referring to that achievement, which the Court’s right-wing majority has since undone. “The suffocatingly strict Supreme Court said no, ruling that unlimited corporate electioneering is protected by the Free Speech Clause because, according to five justices, an unlimited diet of corporate propaganda is actually good for us.”

5. Ensuring the two major parties are monopolies. To make matters worse, over the decades the Court has allowed the two major political parties to act like elite private clubs—where real challenges to party orthodoxy cannot get off the ground.

It starts with who is allowed to run for office. “Excessive deference to local party bosses erodes democracy at the nominating stage,” he said, referring to how the Court treats the process of choosing candidates as a private activity. The Court also has limited who can vote in a primary. The parties not only have “a right to protect themselves from ‘raiding’ by hostile outsiders,” he said, but can impose waiting periods on its newest members before they can vote in nominating contests. “The Court’s insistence on treating major parties as private associations for the purpose of the nominating process even casts doubt on whether political parties can be forced to nominate through primaries at all, instead of allowing the political bosses to choose the candidate in a ‘smoke-filled room.’”

6. Weakening effective third parties. As you might expect, there have been many efforts by the major parties to undermine competition from third parties. Several of these have resulted in cases that came before the Court, where the majority ruled against these efforts “to pump democracy into the nominating process,” Neuborne said. Oklahoma, for example, banned minor parties from inviting Democrats and Republicans to vote in their primaries—which “six justices upheld.”

“So major parties have a constitutional right to open their primaries to independents and possibly to defecting members of the other major party. But ideological protest parties, seeking to challenge the electoral status quo, can be forbidden from inviting members of the two major parties to vote in their primaries,” he said. “From a democracy standpoint, it’s hard to imagine anything worse.”      

7. Makes elections uncompetitive via redistricting. The common thread that runs through Neuborne’s analysis is that the Court will grab one seemingly democratic tenet under the First Amendment and apply it in a way that yields anti-democratic results. For example, when allowing the rich to pay the operating costs of elections, the Court ignored how that “undermine[s] the independence and integrity of the men and women who govern us by turning them into political beggars.”

The same dynamic is true with another big concept that’s embraced more in theory than reality: one person, one vote. This standard has led to states redrawing the boundaries of electoral districts in ways that are numerically equal, but lock in incumbents and make most elections uncompetitive. The Court has allowed that practice, Neuborne said, and only spoken out when efforts to produce fairer elections were challenged. For example, “North Carolina drew legislative lines to help racial miniorities recover from centuries of political exclusion,” he writes. “The suffocatingly strict Supreme Court scolded state officials and said no, insisting that drawing electoral lines in an effort to help racial minorities secure fair political representation is a dangerous form of racism.”     

8. Allowing the governing class to suppress the vote. Here, Neuborne is referring to mix of barriers that discourage voting, which the Court’s right-wing majority does not see as violating the First Amendment’s vision of an inclusive democratic process.

“A century ago, political participation was legally rationed by formal denial of the vote to women, the poor, and newcomers, as well as de facto prohibitions that prevented blacks and Latinos from voting,” he said. “Today participation in the democratic process is rationed by the operation of our system of voter registration, election administration, legislative apportionment, and campaign finance, with its capacity to skew available information in favor of the rich. The political rationing system may be less visible to the naked eye, but the effect on the poor and less educated is almost as effective.”

Neuborne notes that it’s important to pay attention to what the Court doesn’t do. A “tier of spectator citizens” is the “predictable result of the Supreme Court’s toleration of cynical obstacles to voting, including obsolete equipment in poorer areas, incompetent and Balkanized election administrators beholden to the two major parties, pre-election voter registration requirements, prevention of weekend voting, and requirements for photo ID and proof of citizenship that disproportionately limit electoral participation by weak and unsophisticated spectator citizens. In fact, the Supreme Court has tolerated or perpetuated virtually every antidemocratic practice that currently burdens American democracy—disenfranchising ex-felons, upholding cynical efforts to suppress the vote, permitting ruthless partisan gerrymandering, and allowing the nominating process to be controlled by political bosses and the campaign process by the superrich.”

Ignoring history and destroying democracy

There are so many examples where the Supreme Court’s has taken a selectively edited, narrow-minded view of the Constitution to issue right-wing edicts. The Second Amendment rulings expanding gun ownership rights have nothing to do with that clause’s purpose, Neuborne said, noting that Madison placed it after the democracy creating First Amendment—and before the series of amendments that establish a judicial process protecting the rights of the accused—because the Founders understood “that subversion or overthrow by force of arms is the fate of most democracies.”      

When it comes to democratic rights, what the Court did to disenfranchise former felons is appalling. After the Civil War, the Fourteenth and Fifteenth Amendments were passed to ensure former slaves could vote. But in 1974, Chief Justice William Rehnquist grabbed a phrase from those amendments where the right to vote could be revoked “for participation in rebellion, or other crime.” As Neuborne writes, “Rehnquist twisted the words ‘rebellion or other crime’ …to grant affirmative power to states to disenfranchise convicted felons, even though the prison population is—and was—disproportionately black and Latino as the result of systemic racial discrimination in the criminal justice process. So a constitutional amendment designed to help freed slaves has been hijacked as a device to disenfranchise their descendants.”

Neuborne, who has been a First Amendment lawyer and scholar for more than four decades, is not without hope. He has distilled and placed a lifetime of insight and thought about the First Amendment and American democracy into Madison’s Music. He would not write such a book if he thought that American democracy were fatally wounded and could not recover. But what’s needed is a new Supreme Court majority that understands Madison's vision and is not hostile to a broad and inclusive democracy.

“The result has been and is an accidental, highly disfunctional political system cobbled together by judges wearing blinders," he wrote. "Properly read, Madison’s great First Amendment poem to democracy would never accept a judicially imposed president [George W. Bush in 2000], the cynical disenfranchisement of the weak, the elimination of contested legislative elections, or the rule of ‘one dollar, one vote.’”    

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