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Supreme beings

After gutting campaign finance, the high court may go after the Commerce Clause

 

When a majority of the U.S. Supreme Court's judges recently gave corporations new power to pour money into political ads, the court's senior Republican judge went ballistic.

"The Court's ruling threatens ... the integrity of elected institutions" by encouraging "corporate domination of politics" and "corruption," warned 89-year-old John Paul Stevens in his scathing 90-page dissent against the majority's Jan. 21 ruling.

The angry tenor of Stevens' dissent was all the more striking because he aimed it at the five other Republicans on the Supreme Court, who formed the majority backing the increase in corporate power. The court's three Democratic judges joined Stevens' dissent.

The partisan alignment of federal judges is revealed by the presidents who appoint them. Republican Richard Nixon placed Stevens on an appeals court 40 years ago and Republican Gerald Ford promoted him to the Supreme Court. Stevens' dissent highlights a trend -- the five justices appointed by more recent Republican presidents appear more ideologically hard-right, especially the two George W. Bush picked -- Samuel Alito and John Roberts, who is now chief justice.

Think of this majority as the Bold Five: They have overturned a century of precedent. Many previous rulings and bipartisan laws passed by Congress and state legislatures all held that governments could limit corporations' political ads. Stevens called their ruling "a dramatic break from our past." The issue isn't entirely partisan. Some liberal groups, including unions and the American Civil Liberties Union, joined rightwing groups in pushing the legal challenge against such limits. They argued that the First Amendment guarantees corporations the same freedom of speech that people have, and that spending on ads is a form of speech. Limits are "censorship to control thought," the Five ruled.

The dissenting judges scoff at that. So do many other liberal groups and the 26 state governments -- including Montana, Arizona and New Mexico -- that filed a brief arguing for the limits. In fact, corporations already have many opportunities to spend on political influence, not as a civic duty, but to maximize profits for shareholders who might not even live where elections are held. "While American democracy is imperfect," Stevens wrote, "few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

The Bold Five's ruling has long-term implications for the West. It will undoubtedly allow corporations to buy more politicians, especially in rural states and local elections where the price of influence is lower. And it raises concerns that the Bold Five might overturn another huge precedent -- the federal government's use of the Constitution's Commerce Clause. That clause, which says the feds can regulate interstate commerce, has been stretched for centuries to become the basis for many federal laws, such as those covering guns, the environment, and worker and consumer protection.

Last year, gun-rights activists persuaded Montana's Legislature to pass the "Firearm Freedom Act," challenging the imposition of the Commerce Clause on guns. They argue that if a gun is made and used within Montana's borders, the feds can't regulate it. While the government and the Montana activists are battling it out in federal court, about 20 other state legislatures are considering joining the gun-rights challenge. Some legal scholars say the feds will prevail because many previous rulings have allowed such use of the Commerce Clause. But the activists hope to take their battle to the Supreme Court's precedent bashers.

Even if gun-rights activists fail, there are signs that Chief Justice Roberts might rule that the Commerce Clause cannot be the basis for federal environmental laws such as the Endangered Species Act and the Clean Water Act. While serving on an appeals court in 2003, Roberts wrote a dissenting opinion, saying that the Commerce Clause did not allow the U.S. Fish and Wildlife service to impose regulations on a California developer to protect habitat for an endangered toad. Roberts said the case was not about interstate commerce; it merely concerned "a hapless toad, that for reasons of its own, lives its entire life in California."

Libertarian and rightwing groups are arguing against the Commerce Clause in environmental cases in lower courts, hoping to push it to Roberts' Supreme Court. The leading green law firm, Earthjustice, has warned that Roberts seems to have "an ideological agenda" for overturning environmental laws based on the Commerce Clause. The court's senior Republican would probably agree with that warning.