One of the great sports of American politics is to blame the Supreme Court for just about anything that we don’t like. Our elected officials seize upon the opportunity to do so because it deflects the focus of public opinion and scrutiny away from the legislators—whose job it is to write the laws—and shifts it onto the judiciary, whose job it is to interpret, apply and sometimes declare laws unconstitutional. The dirty little secret to the anti-court tirades is that the people who can actually do something about court decisions—the legislators themselves—choose instead to protest…too much.
Case in point: the current litany of complaints about SuperPacs and the role of money in the presidential campaigns. True, SuperPacs are now flourishing in the wake of the 2007 Supreme Court decision in Citizens United. There, the Supreme Court declared the Bipartisan Campaign Reform Act unconstitutional.
That should not have ended the debate about the role of money in politics, but, it did. Pundits excoriated the court for striking down limits on spending by interest groups and corporations. They declared that the integrity of elections was lost. This was all nonsense.
Buried in the hue and cry about the decision was the pesky fact that the court had said, simply, (granted it took more than 100 pages) that the law was unconstitutional as it was written. That is, BCRA may have been a noble enterprise, but it was a bad law.
In broad strokes, a key complaint about BCRA was that it was vague. The court pointed out that, as it was written, the constraints it imposed on corporations also applied to media corporations. That is, it could apply to journalists and other news outlets. This raised a serious problem: how to square the First Amendment’s protection of the press with a law that, while nobly designed to make the political playing field a bit more level, also could be used to suppress press freedom? The court raised other issues with the law. But, the bottom line was that it was badly written and unclear.
The solution was for Congress to write a new, better law. In fact, in the wake of the Citizens United decision, more than a few members of Congress rattled their sabers and said that, indeed, they would work to do so.
We are still waiting.
The fact is that the judiciary still is, as Alexander Hamilton said a long time ago in The Federalist, “the least dangerous branch” of the government. No matter what the judiciary decides, legislatures can respond by rewriting or tailoring laws to address the constitutional issues raised in a particular case. Perhaps the best example of this is the history of the abortion right.
Regardless of one’s opinion of abortion, it is generally accepted that the court “created” an abortion right in Roe v. Wade. In fact, it created the trimester system for dealing with a controversial, complicated and rather new area of law. In the wake of the decision, state legislatures wrote new laws creating restrictions and freedoms with regard to the exercise of the abortion right. The result has been some 40 years of dialogue between the judiciary and the elected branches about what the law should be with regard to the scope and definition of the abortion right.
The same pattern has occurred with regard to restrictions on campaign spending. In 1973, the Supreme Court declared parts of the Federal Election Campaign Actunconstitutional in Buckley v. Valeo. Since then, numerous cases have gone back to the court as the state and federal government have sought to control the impact of money and interest groups on politics while preserving speech rights. Citizens United was merely the latest phase in a dialogue about campaign spending that is as old as the dialogue between the courts and elected officials about abortion rights.
Clearly, the nation should lament the fact that powerful political actors are able to skew the political process by spending incredible sums of money. This undermines the integrity of politics and the ability of the people to make informed decisions. But, this is not the fault of the Supreme Court. It is the fault of our elected officials who would rather complain about the Supreme Court than take the time to write a better campaign finance law.
Mark Rush, of Lexington, is Dean of Arts and Sciences at The American University of Sharjah in the U.A.E.