The Supreme Court Scrambles Politics — Again

Many people will hear about Thursday's landmark Supreme Court decision freeing corporations to mount political campaigns and say the court has blown up politics as we know it.

By bringing corporations (and by extension, labor unions) back into the electioneering fray, the court has restarted a spending war Congress had tried to restrain over the past generation — most recently with the Bipartisan Campaign Reform Act of 2002, best known for its co-sponsoring senators, John McCain (R-AZ) and Russell Feingold (D-WI).

So long as they do not give to candidates directly, corporations can spend whatever they wish to support or oppose candidates for president or Congress. They are free to exercise their rights of free speech under the First Amendment. Just like citizens. Their rights cannot be suppressed on the basis of their "corporate identity," wrote Justice Anthony Kennedy.

The ramifications for this year's congressional elections and the 2012 presidential contest are sure to be profound. What does it mean, for example, for an investment bank such as Goldman Sachs, which had the cash to pay $16 billion in compensation to its employees for 2009, when a major issue before Congress this year is a tax on those bonuses?

Can the court step in and overturn a law passed with bipartisan majorities of Congress and backed by the last three presidents, Republican and Democratic?

You bet. And it's no more a shock to the system than the court has delivered before. Nor for that matter, than the court has delivered to other aspects of American life at least as important.

From time to time, the quiet partner in the triangle of federal power speaks in a voice no one can fail to hear. And in recent years, some of the biggest Supreme Court blockbusters have involved the electoral system itself.

Not so long ago, in 2000, the court determined the outcome of a presidential election. The justices did that by short-circuiting a recount of the disputed vote in Florida (Bush v. Gore, 2000). The next day, Democrat Al Gore conceded the election to Republican George W. Bush, who went to the White House for the next eight years.

A generation earlier, the court declared that spending money to get elected to office should enjoy the same extraordinary protections the Constitution granted to free speech (Buckley v. Valeo, 1976).

The key finding of the latter case, often summarized simply as "money is speech," forced campaign finance laws to focus entirely on the raising of political money and ignore how much of it is spent (except where candidates for president "took the collar" by accepting public funds).

The lifting of limits on spending has forced reformers to focus on limiting the other side of the political equation: the raising of dollars. Needless to say, this means concentrating the burdens of law on all those candidates who lack a fortune of their own (or prefer not to spend their own money exclusively). This has spawned decades of tortured law and regulation and led to countless contortions, distortions and outright violations — not to mention "compliance costs" that are a windfall for accountants and campaign lawyers everywhere.

But apart from counting votes and dollars, the court has been willing in recent decades to take on a variety of cases with strong overtones of partisan politics. From the early 1970s to the 1990s, the court has weighed in repeatedly on the question of race and redistricting. Initially, these cases sprang from the practice of carving out districts to dilute the power of minority voters, black or Hispanic, primarily in the Deep South. Such districts scattered the minority vote among several districts, minimizing the chance of it making a difference.

The court in the 1970s said a district could not be drawn so as to have this effect. Most agreed this was more just. But by the 1990s, a somewhat different Supreme Court had gone all the way to requiring districts to concentrate minority votes — so as to maximize the chance of electing a member of the minority group. It worked. There was a huge upsurge in the number of black and Hispanic members elected in November 1992.

Under these rules, some Southern legislatures drew maps that by concentrating black or brown voters (and virtually guaranteeing minority candidates would be elected) also created a larger number of districts that were overwhelmingly white.

The latter proceeded to elect Republicans, in many cases, and in 1994 the GOP captured its first majority of Southern congressional districts since Reconstruction. It was a key element in the party's capture of the House majority for the first time in 40 years.

Going back a little further we have the 1962 Baker v. Carr ruling that said issues of apportionment (distributing seats in Congress and state legislatures) were fair game for the court. By rolling back its old "hands off" policy toward politics, the court opened a floodgate of legislation. Subsequent cases laid out the "one-person, one-vote" standard that now seems the natural order at all levels of American politics (except in the U.S. Senate).

After Baker v. Carr, legislatures had to be apportioned according to population, not geography. Until then, it had been common for states to divide their state Senate seats equally among counties, ignoring huge disparities in population. Baker broke the stranglehold of rural interests in state capitals nationwide, acknowledging the rise of cities and suburbs that had been reality since the turn of the century.

This is a rarefied group of legal landmarks that stand out over the past half century. Today, the high court has added a new entrant in the category.

Stand by for the consequences, both intended and unforeseen.

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