Justice Stevens Gets a Medal

Every now and then, a picture's taken that perfectly captures political reality.  One of them was snapped on May 29 during the same White House ceremony in which the president insulted millions of Poles with his "death camps" gaffe.  There stands retired Supreme Court justice John Paul Stevens, pleased as punch to be receiving a bright new collar, the Presidential Medal of Freedom, most likely as a reward for his dogged opposition to corporate political speech.

The very next day, Stevens spoke in Little Rock, once again yapping about Citizens United's ruling against the McCain-Feingold ban on independent corporate campaign spending.  Stevens seems to have the persistence of a terrier shaking a rat, and he struck a chord with CBS when he drew an analogy between independent campaign spending and a media-moderated presidential debate.  What he said is well worth our time, because it perfectly captures the partisanship and flawed logic of his Citizens United dissent.

Both the candidates and the audience would surely have thought the value of the debate to have suffered if the moderators had allocated the time on the basis of the speakers' wealth, or if they had held an auction allowing the most time to the highest bidder.  Yet that is essentially what happens during actual campaigns in which rules equalizing campaign expenditures are forbidden.

The italics are mine.  The "surely" in Stevens' first sentence parallels "only" in the David Souter "proof" of legislative dishonesty I cited earlier in an article on these pages.  Both quotes are obviously cribbed from the same progressive playbook: their political questions are framed so that only one answer seems possible, when in fact that answer is largely irrelevant.

Such statements have little to do with the Constitution or the law.  They're progressive agitprop.  Souter exploits the stereotypical Christian bigot, and Stevens exploits Obama's mortal enemy, The Rich, but they're both playing identity politics.

I'm really tired of watching the progressives play that game to politicize the Court.  But I'm even more tired of being told incessantly what I have to think -- or be consigned to intellectual and cultural outer darkness by judges whose arguments are a witch's brew of rank speculation, logical fallacies, cherry-picked evidence, ridiculously obvious contradictions, and the strategically placed lie.  Stevens' comment is much more than just an attack on corporate speech.  He's also giving voluntary political engagement and independent political thought a bad name: spontaneous, self-directed political participation, it seems, is bad; media-scripted, tightly controlled political spectatorship is good.  Stevens' statement reflects a progressive obsession with government control that has destructive implications far beyond campaign finance reform.

To see why Stevens' analogy fails, it helps to identify what I call its weasel words, "essentially" and "equalizing."  The problem, it turns out, is with McCain-Feingold itself -- and this is a problem Stevens himself acknowledged in the very first paragraph of his dissent but apparently couldn't solve: the ban on independent campaign spending not only failed to "equalize" spending, but made domination by huge organizations worse, not better.  Here's why:

Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets.  Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to.  It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election.i

Letting the biggest players end-run the law is not how you "equalize" campaign spending.  When Citizens United was decided, there were about three million corporations that filed federal tax returns, but only about two thousand had PACs.  The vast majority of corporations, aka Obama's hated Rich, had annual revenue of one million dollars or less and assets of five million or less.  So for most corporations, McCain-Feingold was a regulatory Sargasso Sea that was prohibitively dangerous and expensive to navigate.  Not so for "wealthy" corporations like Citizens United that could afford to set up a PAC or hire highly specialized legal advice.  As the dissent itself points out, the latter were free to go on speaking "wherever and whenever" they liked.

The result should have been predictable -- or at least acknowledged after the fact: a massive independent spending advantage for the Democrats, powered primarily by big labor, the trial lawyers, and the super-rich coastal elites, and a similar advantage for congressional incumbents, since buying committee chairs whose predilections are well-established is more efficient than throwing money away on unknown challengers the odds say are likely to lose.

As if to underscore this failure, then-Solicitor General Elena Kagan chose not to defend on the merits Austin v. Michigan Chamber of Commerce, the 1990 decision upholding the independent campaign spending ban that Citizens United overturned.  The problem: the compelling government interest Austin relied on to justify the suppression of political speech was (drumroll) the need to prevent distortion of the political marketplace by the largest corporate payers.

It's fun to sort through the facts that contradict Stevens' fanatical defense of a failed -- not to mention unconstitutional -- regulatory regime.  But conservatives who cheered the Democratic debacle in the 2010 midterm and endured the Republican presidential debates don't really need space science to tell them Stevens has got it all wrong, because "essentially" just don't quite cover it.  For me, the high point of the debates was the famous dust-up between John Snow and Newt Gingrich over the appropriateness of probing a candidate's personal affairs in a political forum, followed up by Newt's charge that the talking heads were doing Obama's dirty work for him by sliming Republican candidates.  The audience went wild, and at the next debate applause was banned.

So, was one network's debate really of more "value" because it imposed a gag rule on the audience -- a rule likely intended to reduce the impact of anti-Obama and anti-media punch lines?  Stevens might as well be arguing that to be legitimate, political activity has to be scripted and directed by elites so that the wrong things don't get said, the wrong hands don't get clapped, and the wrong jerks don't get laughed off the stage.

So, "surely" be damned.  I couldn't care less about whether each candidate gets equal time.  My problem is with the clumsiness of the format, the bias of the moderators, and the inanity and unfairness of the questions.  But then, that's just me.  A McCain-Feingold groupie like Stevens is probably too tied up with form to bother much with substance.  My guess is he'd swear on the ACLU charter that Snow's questions were fair and balanced, and that the League of Women Voters is just a non-partisan group of concerned citizens fighting for clean elections.

Mr. Stewart is a freelance writer living in Texas.  He can be contacted at edward.stewart27@yahoo.com.

iCitizens United v. Federal Election Commission, 558 U. S. __________ (2010), Stevens, J. dissenting at 1 (emphasis added).