Democracy & The Supreme Court’s Wrong Turn on Election Finance

Both surprised and amused by a Harvard Business blogger, Umair Haque, who satirized the Supreme Court’s decision on free speech, I found myself evaluating a fundamental attitude toward government.  Although the media would have us believe that government is never? rarely? to be trusted, and though plenty of people make a business out of bad-mouthing government, there remains a deep-seated trust of government in many areas. 

Most of us expect our local government to perform well in terms of education, infrastructure and general services.  And though we complain about other people’s representatives and senators, we don’t usually complain about our representative or our senator.  We have split-personalities.  We believe government can’t be trusted, yet our behaviors belie our beliefs.   

It’s easy to see this in the things we take for granted.  When we lived in Boulder, Colorado, the city manager changed a residential street from two-way to one-way.  In 30 days, that street had been changed back to two-way.  How did that happen?  The residents rose up in arms, marched into city hall and demanded their rights along with the change of traffic.  They got what they went after.

There are two ways of looking at that incident.  What comes to mind first is that the change to one-way was just another governmental screw-up.  That’s what was talked about and angrily condemned. 

At a deeper level, however, the incident revealed that the residents took their trust of government for granted.  Significantly, they believed that the city government would respond to their action and return their street to two-way.  Think about this.  In many, perhaps most, parts of the world, the people would not believe that they have the power to influence government to act in their behalf, and they certainly would not expect that they could go into government headquarters and demand changes, much less see their demands met.

What’s going on is that in spite of our griping and the constant media barrage about the failures of government, at a deeper level most of us have, well out of our awareness, a firm belief that our government will be responsive to us.  Actually, almost all of us believe in government so strongly that we trust it.  We hold some attitudes so deeply that we never consider them, and we are surprised when someone points out the contradiction between what we say and how we behave. As I occasionally remind friends from my generation, “You always get your Social Security check on time, the VA hospital is always available for your medical needs, your medical expenses get paid by Medicare, the police and the fire department will come when you call, and the winter potholes eventually get fixed. And you don’t trust your government?  That’s nonsense.”  The silence I get from those statements means that they have never thought about their fundamental underlying attitude.

Over the years, I have held tightly to an essentially positive and constructive attitude toward government.  Sure there’s corruption.  Sure there are failures.  Sure there are legislators I’d like to throttle.  But overall, I’m happy to pay my taxes and make whatever contributions I can make.  I realize, in fact, that the government is us.  And when we bitch about the government, we’re actually complaining about ourselves.

However, over the past ten years, I’ve found my underlying attitude toward the Supreme Court shifting in a direction that I fear.  There are two incidents that drive that shift.  The first was the Bush-Gore voter decision.  Frankly, I anticipated that the Supreme Court would stay out of the issue and let the state and district courts muddle on with recounts, etc., for as long as it might take.  Contrary to the general population, I’ve never had the expectation that our democratic processes will be anything other than messy.  And so if the Florida recount had gone on for months to finally come to a decision, it would have been okay with me and even appropriate.

As you can see, I believe that governmental bureaucracy is as good and often far better at running things than business bureaucracy.  I can match governmental screw-ups with business screw-ups as long as you have the time to listen.  There are really smart, even wise people in both fields.  There are also idiots in both fields, and I’m hard-pressed to argue who leads in lack of intelligence.   

But the Court inserted itself into the Florida decision, and that single, highly politicized action, took a chunk out of my trust of the judiciary.  Naively, I had always seen the Court as apolitical.  What surprised me was that Sandra Day O’Connor, who has served two terms in the Arizona legislature, and who usually “gets it,” didn’t on that occasion. Her rich understanding of both the public and politics, an understanding that is missing among some members of the judiciary, was on vacation.

The second action was Thursday’s decision on corporate involvement in electioneering.  Having worked through several dozen articles by libertarians, conservatives and liberals, and skimmed a bit of the decision itself, I’ve concluded two things: 

  • The action showed a monstrous lack of awareness of the political facts on the ground, and the role of special-interest groups.  I expect that of most lawyers, having worked with more than 30 from both corporate general counsel and private legal firms. But I am shocked at the naivete of some members of The Court.  In all professions there are both artists and novices, with the artists in a serious minority.  But I expect the Supreme Court to be filled with artists, not novices, unaware of the big picture.
  • The action showed an originalist or fundamentalistic handling of the Constitution that is not only asinine, but profoundly lacking in perspective.  Originalists essentially believe that you can make objective decisions based upon the received Constitutional document, in spite of the well-known fact that all decisions are colored by time, exposure, personal history, work experience, values and bias.  A belief in originalism challenges my trust of the Court.  Originalism is rhetorical nonsense.

So much to my chagrin, I’ve learned that the Supreme Court is filled with fundamentally fallible people, professionals who in spite of their elevation manifest huge intellectual holes. As a result, I’ve painfully adjusted my perspective on the Court. I’ve decided that it cannot be trusted to “get it,” either about competitive business processes or election politics. In other words, I have a seriously diminished respect for the Court.  That perspective, I’m certain, will be shared more and more, thus taking away from the trust we have granted it for more than two centuries.  The Roberts Court, at least from the perspective of this 75 year-old, is building itself a bad reputation for our democracy, and I have gained a perspective on reality that I don’t really desire.

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