iOS app Android app More

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors
James Sample

James Sample

Posted: March 10, 2010 11:01 AM

The Umpire is feeling his oats.

Yesterday, less than two months after the Supreme Court overturned federal campaign laws and multiple prior decisions reflecting century-old understandings, in a speech at the University of Alabama, self-proclaimed minimalist, Chief Justice John Roberts asserted that it is "very troubling" to have "the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according to the requirements of protocol -- has to sit there expressionless."

Setting aside Justice Alito's rather unique take on the art of "expressionless," since when is it "very troubling" for the President to criticize the Court face-to-face during the State of the Union, but kosher for the Chief Justice to criticize the President in a speech on a campus in Alabama?

Roberts continued that "the State of the Union has degenerated into a political pep rally. " Hello? The State of the Union is---by design, not degeneration---always a political pep rally.

Roberts' speech indicates that while unlimited corporate billions are, after his Court's recent decision in Citizens United v. FEC, newly essential to democracy, apparently a thick skin is not.

Suffice it to say that at this point, there is little doubt that Roberts' 2005 statement, "My job is to call balls and strikes and not to pitch or bat" was 100 percent job application, zero percent job description. But past is prologue, so more importantly, let us pause for a moment to update the apparently inverted First Amendment lessons of our youth:

  • Old paradigm: unlimited corporate money in elections, troubling, Presidential remarks on critical national issues, good.
  • New paradigm: unlimited corporate money in elections good, Presidential remarks on critical national issues, "very troubling."


Or, if you prefer, balls and strikes out, swinging for the fences, in.

Thomas Hobbes ascribed to mankind a "perpetual and restless desire of power after power, that ceaseth only in death." Of course, if Hobbes had sought Senate confirmation he would have marketed himself as Ghandi. After all, life tenure trumps breach of warranty every time.

Last night, White House spokesman Robert Gibbs, who knows full well that in these partisan times, concern over corporate green is one of the few issues on which red and blue agree, responded to Roberts' comments by noting that, "[w]hat is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections, drowning out the voices of average Americans."

In 2008, ExxonMobil's PAC raised $950,434 in voluntary political contributions from its managers, employees and shareholders---all of whom could, like any citizen, also spend in their individual capacities. Indeed, in 2008, corporate PACs combined raised a total of approximately $150 million for contested congressional races.

By comparison, as one brief in the case noted, in "that same election cycle, ExxonMobil's profits were $85 billion, or more than 560 times the amount raised by all corporate political action committees ("PACs") combined." Keep in mind that the $150 million figure counts only direct fundraising, aimed expressly at supporting candidates for office. It doesn't even scratch the surface of corporate expenditures to influence the political process, including lobbying. Nor, as Jason Linkins wrote in an eye-popping article on this site, does $150 million in one cycle even begin to compare to the corporate treasuries now available for use in elections.

The numbers reflect what the public already knows. The political world prior to Citizens United was hardly lacking the corporate perspective. Do corporations have rights? Of course. But they are also creatures of the state, which is why Dahlia Lithwick aptly described Citizens United as the Supreme Court's "Pinnochio Project." Corporations don't go to jail; don't face execution; don't vote; do have eternal life; and are different from regular citizens in all sorts of meaningful ways, particularly when it comes to matters of political process. Perhaps, in light of the ongoing census, in the new civics paradigm, Delaware should have more congressional seats than California?

Among others on the right, Teddy Roosevelt and Roberts' predecessor, William Rehnquist, supported the old limits. For that matter, TR, in addition to believing strongly in the "old paradigm" First Amendment, was also famously tough. Accordingly, I highly doubt that he would have been "very troubled" by a President criticizing a Court decision during the State of the Union.

The good news is that among living Supreme Court justices, the vote is not 5-4 in favor of Citizens United, but rather 6-5 against. The bad news is that Justice Souter isn't leaving his cabin in the woods and Justice Alito isn't Justice O'Connor. Worse, the so-called umpire is enough to make moderates and progressives long for those bygone salad days . . . of William Rehnquist . . . or Teddy Roosevelt. Alas, not being corporations themselves, neither of them had eternal life.

Speaking of TR, someone new is carrying the big stick. And while perhaps a bit sensitive, he is absolutely wielding it at the plate.