What Rule of Law?

In a Facebook post today, economist and political pundit Robert Reich said it’s time to amend the U.S. Constitution to overcome the Supreme Court’s 2014 decision in McCutcheon v. Federal Election Commission that “[allowed] individual donors to pour as much as $3.6 million directly into federal campaigns every election cycle – buying unparalleled personal influence in Washington and drowning out the voices of ordinary citizens.” His proposed amendment would establish that: 1. Money is not speech protected by the First Amendment, 2. Corporations are not people endowed with First Amendment rights, and 3. Congress can limit spending on elections.

While some might wish devoutly for such an amendment might , its blithe recommendation could come only from someone poorly versed in the law or ill grounded in reality. First, any amendment to the Constitution requires the support of a majority of the members of Congress who, regardless of party affiliation, bathe themselves in the overflowing trough of election money that floods in from wealthy individuals, corporations, and PACs. President Trump famously began his re-election campaign immediately after his election to keep the spigot gushing the cash that flows disproportionately toward the GOP. It appears Trump has spent a large share of the money he continues to amass on personal expenses unrelated to re-election, but the funds also support party initiatives that are systematically gutting state election rules to favor permanent GOP dominance.

Any constitutional amendment requires passage by either a two-thirds affirmative vote in both the House of Representatives and the Senate or a constitutional convention called for by affirmative action by the legislatures of two-thirds of the states. To understand the near impossibility of this in today’s polarized political environment, one need look no further than the Equal Rights Amendment, which is hugely popular with voters. It took nearly 40 years for Congress to pass that amendment, and another 48 years for it to earn the necessary ratification by the required number of states in 2020. Still it languishes because Congress refuses to repeal the 1982 ratification deadline it imposed on states.

Should the nearly impossible happen, with Reich’s proposed amendment becoming law, it likely would not achieve the ends he hopes when applied by a Supreme Court skewed so heavily toward the modern GOP-version of conservative originalism. The problems we see manifest in Court holdings on elections, electioneering, election ads, election funding, campaign lies, and more started far before McCutcheon or the earlier Citizens United decisions. The difficulties are deeply enmeshed in the muddle of First Amendment precedents that establish, move, transgress, and obscure a mind-numbing array tests, lines, categories, and distinctions without a difference and create new divisions that violate logic and reality.

The profound mess of free speech precedent and jurisprudence cannot be untangled through yet another new law with a new set of definitions that cannot be clearly understood or consistently applied. Is there a rational way to assert that election spending is not speech if we believe that “money talks” to express both our preferences and our displeasures? If corporations, which are simply the legal representation of their shareholders, are not “people” with constitutional rights (including freedom of speech), are unions or clubs or political parties … or families? If almost 235 years of constitutional law has taught us anything, it is that every law or rule must be interpreted and applied, and the devil of First Amendment law lies in who decides and how.

Today’s debacle may be built into an increasingly partisan system that selects Supreme Court justices from a very very narrow slice of the U.S. population, appoints them for life, segregates them from society, denies them the freedom to broadly discuss or gather opinions about controversial legal issues, and allows them to act in deeply political and self-serving ways with nearly absolute impunity (think Ginni Thomas). The similarity of justices’ personal experiences, legal training, and backgrounds (with even the most “diverse” members of the Court coming typically through the most prestigious and expensive Ivy League schools) predisposes even the most “liberal” among them to be cautious about broad rulings or new directions and encourages them toward inapt historical analogies ill-suited to real, contemporary applications. Personalities/ideologies that differentially lean individual justices toward or against compromise, mutual respect, and adherence to solid precedent (rather than its selective and overt misapplication and misrepresentation) weigh heavily in an adversarial “justice” system that leads parties to select and color their interpretation of data and allows decisions to be made without a complete set of verifiable, objective facts or full review of all relevant information.

Constitutional scholars (including me) have done little to help the Court address its errors or forge a better path forward because publishable/influential work must justify and credential itself with grounding in the very Court precedents and practices it wishes to excoriate. Like a dog chasing its tail, scholars follow the lead of the Court they wish to influence. The result is Court approval of high rollers with bottomless pocketbooks spending unlimited amounts on election chicanery, lies, and attacks, while voters make poorly informed choices among so-called representatives who offer impossible promises and distorted records that disguise their swift and inevitable dive into the coffers and influence of big money.

When all laws are subject to interpretation, and the rule of law is mutable, no constitutional amendment will correct the problem.

Photo by Brad Weaver on Unsplash

April 2, 2022