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Could a Post-Scalia Court Restore Campaign Finance Sanity and Pull Back From Plutocracy?

Posted on Feb 15, 2016

By Juan Cole

  Antonin Scalia, the senior justice on the Supreme Court, was found dead of natural causes Saturday. (Jim Mone / AP)

This post originally ran on Truthdig contributor Juan Cole’s website.

There is no guarantee that the successor to the late Justice Antonin Scalia will be a liberal.  But only if Cruz wins the presidency can we expect a nominee as hard right as Scalia.  In all likelihood, the court has just shifted at least somewhat to the left.  And that shift could be very good news for the country’s politics.

Much depends on whether Obama can get enough Republican senators to buck Majority Leader Mitch McConnell and confirm a nominee this year.  (Some, like Lindsey Graham (R-SC), likely would on principle, since they tend to believe that the president has a right to his pick).  Absent that, the rest will depend on the outcome of the November election.  In my own view, that election is the Democrats’ to lose, since the GOP horror show has almost certainly chased away swing vote groups such as Latinos, soccer moms, urban Catholics, workers, etc.  But life is unpredictable.


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American politics in my view is off-kilter because of the conservative Reagan-Bush court we have had for decades.  In the two-centuries long class struggle between the very rich and the rest of Americans, during the past three decades the rest of Americans have been soundly trounced.  You’d have to go back to the Roaring Twenties or the age of Robber Barons in the 19th century to find an America so polarized by wealth, with so many excluded from any real power or access to economic opportunity.  In Eisenhower’s America, the top 1% had 25% of the privately held wealth.  They now have upwards of 40%.  Finance was perhaps 10% of the economy.  It is now 20%.  The top 1% did not take home 20% of the nation’s earnings every month back then.  And our politics was not bought and sold by a handful of billionaires.  The Supreme Court has not been innocent in all this.

A 2008 Supreme Court decision allowing Indiana to require a photo ID to vote led to dozens of Republican legislatures passing such unfair laws.  Political scientists have demonstrated that these laws adversely affect the ability of minorities, the poor, the aged and other Democratic constituencies to vote.  The GOP excuse for these laws, that they are necessary to prevent voter fraud, has been shown to be completely without foundation.  There is no voter fraud to speak of in the US, and what little it is does not take the form of voting under a false identity.

Comedian John Oliver over at HBO had some fun with Republican obscurantism on the voting issue last night.

The 2008 Crawford v. Marion County Election Board decision was reached with a 6-3 majority.  But if we could get a new justice who realized that the voter ID laws are in fact an unfair burden for people, and could change the mind of one of the remaining 5 who voted to allow them in 2008, we might be able to overturn these laws as unconstitutional.  (You have to take off work to go get an ID, which many Americans cannot afford to do;  if they ride the bus to work they don’t have a driver’s license;  the laws are just a way to confine the electorate to old rich white people).

Or consider gerrymandering.  The reason the House of Representatives is in the hands of the Republicans today even though more votes were cast overall for Democratic members of Congress by the public is because of gerrymandering by state legislators.  Texas is a notorious example.  But in seven states, now, the public has used referendums to institute neutral commissions to draw districts.  The Arizona legislature challenged the constitutionality of taking these decisions out of the hands of the state lawmakers, but even the Roberts court turned back the challenge.  Scalia, Roberts, Thomas and Alito dissented.  Any further appointment by a Democratic president will strengthen the majority on this issue.  Even just striking down scams like dividing Austin up into 8 voting districts attached to rural counties, or the snakes, salamanders and other strange animals drawn around minority districts in places like the Carolinas, would take the country toward greater equity and justice.

The notorious Citizens United ruling of 2010, orchestrated by the billionaires’ best friend, John Roberts, arguably ruined the politics of this country and made us altogether into a plutocracy.

The craziness of our political season stems in part from equating money to speech and removing restrictions on campaign donations.  In the old days, because of more effective campaign finance rules, in order to run for president you had to get the backing of a whole gaggle of people.  If you said a few embarrassing things, as Donald Trump has (in spades!), in the old days the gaggle would peel away.  Since the rules didn’t allow you just to buy the election by yourself, you’d be forced to drop out if even your backers thought you were batcrap crazy.  But now, with billionaires self-financing or with billionaires putting in dark money, the guano insane can stay in the race indefinitely.  In some instances, addled plutocrats like Sheldon Adelson install a voice pull-string in their puppet candidates (Robo Rubio is Adelson’s toy), forcing them to parrot nonsensical sentences over and over again.  Or Haim Saban makes Hillary give that ridiculous AIPAC speech over and over again about Israel, which bears no resemblance to reality.

Citzens United was another one of those 5-4 decisions, and a new, less hard line justice would allow the court to chip away at it and even just overturn it.

There is no guarantee that the court can or will take a new direction now.  But it could.  And if it does, then we 99% could maybe get our country back.

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