Tuesday, June 26, 2007

Lithwick: SC upholds 'pervasive distortion of electoral institutions by concentrated wealth'

A Supreme Court conversation. - By Walter Dellinger and Dahlia Lithwick - Slate Magazine:
To my thinking, Justice David Souter has the better of it in his FEC dissent, which he read from the bench yesterday. What big corporate and union money is doing to election campaigns, and consequently to public confidence in the electoral system, is staggering. As he puts it, it's a problem Congress has been wrestling with for more than a century, in an effort to undo the 'pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions.' The chief justice's new model—don't see sham issue ads for what they clearly are, but closely scrutinize student speech for what it's clearly not—reveals a profound failure of understanding at both ends of the speech spectrum.


Many commentators have been struck by this juxtaposition on speech, corporate and student. "Free" speech does not quite capture the point.

Starting with Buckley v. Valleo, the Supreme Court has made a hash of halting leegislative efforts to control the impact of unaccountable big money on supposedly democratic politics, resulting in large part in the sorry state of contemporary politics. It is a self-reinforcing cycle: wealth buys political influence, affects selection of judges, who decide elections and frustrate the occasional results of popular outrage. I part with my free speech absolutist colleagues on this one.

We desperately need some new ideas (see, e.g., Ackerman & Ayres), and a new approach to media access (by which I mean free tv time in > 5 minute chunks) during election season. I'm not holding my breath. This is a generational task for the next generation of scholars and activists.

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