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Martin Dyckman: Supreme Court failing to cure the terminal illness of American democracy

American politics these days can make one wonder, why bother? Why care? What’s the use of even hoping?

  • In a devastating exposé, “Higher Ed Hustle,” the Miami Herald documents how for-profit private colleges have been ripping off unsuspecting students and calls out politicians in both Tallahassee and Washington for helping the predators feast on the prey. Fifteen new state laws owe to the industry’s influence and contributions. Seven Florida Congress members, including Marco Rubio, Patrick Murphy and Alan Grayson, pressured the Obama Administration to ease off.
  • Republican presidential candidates queue up to grovel for the support of Sheldon Adelson, who banked his billions in the filthiest way that’s legal – casino gambling – and whose primary political interest is not about what’s best for the United States. Rubio, one of the mendicants, promptly tries to kill the nuclear negotiations with an amendment demanding that Iran surrender its entire stockpile and recognize Israel.
  • With the Koch brothers pledging nearly a billion dollars to influence the 2016 elections, superpacs proliferating outside the law, and total political spending predicted to reach an astronomical $10 billion, the chair of a politically polarized Federal Elections Commission says the agency is “worse than dysfunctional” and she’s all but abandoned hope of preventing or punishing abuses.

These are symptoms of what history will likely call the terminal illness of American democracy. Public policy is perpetually on sale to those who can most afford it. It’s no wonder that so many of those who can’t pay to play don’t see any point in voting.

Hopelessness is the worst of it – the depressing knowledge that nothing can happen for the better so long as the Supreme Court continues to encourage paid speech to drown out free speech.

It was a welcome, even stunning, surprise when Chief Justice John Roberts strayed from the dark side last week to cast the swing vote upholding Florida’s ban on direct campaign solicitations by judicial candidates. (Their ability to raise funds through surrogates remains unaffected.)

“Judges are not politicians,” Roberts wrote, “even when they come to the bench by way of the ballot. And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A state may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money….

“Simply put, Florida and most other states have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”

Bravo, bravo! Thank God for even small blessings.

This, however, is the same chief justice who dissented in Caperton v. Massey when the majority agreed that it was not OK for a state justice to sit on a case involving someone who had spent $3 million independently to elect him.

“This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case,” he wrote.

Dismissing $3 million as an “isolated case” seems a bit odd, as did some of the 40 “what ifs” Roberts conjectured against the majority’s precedent, the last of which expressed concern for the reputation of the judge who’s forced to step aside.

Roberts also wrote the McCutcheon decision that erased aggregate campaign limits. Here’s what he wrote on that occasion:

“There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”

In the first four ways he cited, all citizens are presumably equal. In the last, they are not, and the Roberts gang, in refusing to acknowledge the difference, is poisoning our democracy.

Roberts was also in the majority in the infamous Citizens United case, in which he distorted the issue beyond what either side had argued to allow corporations and unions to spend without limit to elect or defeat candidates. Here again, the court pretends that the average citizen’s small contribution and Adelson’s billions compete on the same terms.

How to explain Roberts’s inconsistent application of the First Amendment?

The core of his premise seems to be that judges need more respect than other politicians. But in Caperton, he couldn’t see how it disgraced a West Virginia justice to decide a $50 million case in favor of a major campaign supporter.

Yes, judges should be above suspicion.

But the American people also need governors, state legislators, members of Congress and candidates for president who are above suspicion.

And they desperately need a Supreme Court that will undo the clear and present dangers that it has brought upon our country.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in Western North Carolina. Column courtesy of Context Florida.

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