U S Supreme Court v. Common Sense

The common qualifier used by anyone who is not an attorney but is addressing a legal point is, “ well, I’m not a lawyer but…”. Since this is often confessed to people who already know that the speaker isn’t a lawyer, it would seem to be at best redundant and at the very least, irrelevant. So, let’s get that non-sequitur out of the way. I am by the grace of God not a lawyer.

Now to the legal point I wish to address…unlimited contributions within the political process. In the recent Supreme Court ruling McCutcheon v. Federal Election Commission all caps were removed from federal elections on the basis that said limits unconstitutionally infringed on the freedom of speech portion of the first amendment. Now remember that I’m not a lawyer thus only allowed to argue based on logic and equity. By granting Mr. McCutcheon the right to give large, perhaps even obscene, amounts of money to federal candidates from whatever district within whatever state he wishes, the court has opened the gate to further financing what James Madison called “ the vicious arts”, a reference to the rhetoric of electioneering. Madison in Federalist number 10 spoke to the danger and management of what he called, “ factions”, within the electorate. He felt that, “ the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.”

Since those who hold the vast amount of property constitute a substantial minority of the electorate, allowing them to control the rhetoric of an election by virtue of buying the means and distribution of that rhetoric under the rubric of “free speech” tilts the process in the favor of a pronounced ‘faction’. While Madison recognized that economic stratification was inevitable and that it did in fact allow for predictable differences in view point, he concluded that the negative results of this natural faction could only be compensated for by controlling the effects. He further stated, “ the regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of the government.” In all of this distant and somewhat awkward prose one gets the clear impression that Mr. Madison was trying to apply a practical leveling effect to the society which he and his peers were trying to create. He realized that legislating perfect equality was not only impractical but virtually impossible; therefore he suggested that the most efficient form of government was a large republic with elected representatives which allowed for the minimization of factions or at least the distribution of factions to a wide assortment of interests thus diluting their power.

The problem with granting a small but financially powerful minority the unlimited ability to control rhetoric is that they then control the selection of the “fit characters”, as Madison termed the elected legislators, and thus their own interests. Madison says, “ The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” He further stated, “ the influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other states.”

So, what is the common sense interpretation of this eighteenth century logic? That the founders, or at least one of the most influential of them, was trying to form a society where every citizen would have their vote and personal interest count on an equal basis. He never supposed that rhetorical ability would be equally distributed. He never imagined that property would be equally divided or even that it should. However he did envision that property alone should not allow a small minority to control the rhetoric and thus the choice of “fit characters”.

No breathing American citizen can actually believe that an elected official whose office is beholden to the generosity and self-interest of a powerful patron will not give undue and thus unequal consideration to that patron. If the Koch brothers or Mr. Soros or any other financially powerful entity supplies the means for a legislator to maintain their seat in the congress, then that seat is for sale and the votes that arise from that seat belong to its patron.

Equating unlimited political contributions to the exercise of free speech as enumerated in the first amendment is not unlike equating the ownership of a claymore mine to the provisions of the second amendment. I’m a long way from Washington but I swear that on April 2nd, 2014 I heard someone yell fire in the crowded chamber of the U S Supreme court