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Open Letter to the Governor of Massachusetts on his Support for the “authority of the Supreme Court to make” the McCutcheon decision.

The Dubious Authority of the Supreme Court

by ROB HAGER

Gov. Patrick Deval said in a radio interview on April 15, 2014 that “I respect the authority of the Supreme Court to make those decisions” like McCutcheon.  I write the Governor to clarify his position, and to express opposition to his statement.

To “respect” authority in the abuse of its power is to align oneself with and further enable that same abuse.  Experience shows that contesting that authority, especially in the case of the Supreme Court, has the effect of curbing it.

Converting a democracy into a plutocracy is a task of constitutional dimensions.  If the Governor does sincerely believe that the Roberts Court legitimately has the power to amend the Constitution, I would like to have him point out to me where precisely the Constitution gives that power to an unelected Court to exercise in a 5-4 vote?  Article V seems to have a different, much more difficult, process in mind, involving a 2/3 vote of each house of Congress, and then ratification by ¾ of the states.  The elected representatives of both Congress and the states, through their legislative acts, have expressed an entirely different view than five judges on the Supreme Court about the constitutional importance of keeping big money out of politics.

If the Governor disagrees that the five judges who constitute the Roberts Court have amended the Constitution, over the opposition of the other four judges on the Court, then I would like to have him point out precisely where in the Constitution it says that Congress (and therefore the People) lack the constitutional authority, as the Court ruled in McCutcheon, to prohibit the purchase of influence from, and the resulting systemic corruption of government by, political parties.  There can be no other result from large biennial contributions to parties and their candidates of an aggregate amount as high as $3.6 million per plutocrat, as the Solicitor General pointed out in arguing the case.

Governor Deval did protest that “I don’t think that is what the founders had in mind, I don’t think that that is what most Americans have in mind in terms of a healthy democracy, and I don’t like the decisions of the Supreme Court.”  Those who wrote the Constitution in fact disliked political parties and did not give them any rights in the Constitution for the very reason that they anticipated that parties would be used for this very purpose of corruption that McCutcheon has now ruled to be legalized by the Constitution.

If not in the contemplation of the founders who wrote the Constitution, nor of the American people, nor of the legislatures and chief executives who enacted and signed these laws repeatedly overthrown by the Roberts 5, nor of a reasonable and prominent representative of the legal profession such as the Governor, then where does the Court get its authority to create such a rule, that the Governor contends it has?

Are they, unlike all other politicians, saints incapable of making a mistake?  If so, what about those other four judges who strongly state that the Roberts 5 did make a mistake?  How did they lose their sainthood?  And how did Congress lose its power to check and balance the Court, which it used after the Civil War, for example, to strip the Court of jurisdiction in the Ex part McCardle case in order to prevent the Court from overthrowing Reconstruction?

If the latest Roberts’ rule derives from the three words “freedom of speech,” as he claims, perhaps Governor Deval could explain why other crimes involving speech, like filing a false tax return, is not just as legal as the Court has made influence peddling and public corruption?  If the Governor does not like that example on tax day there are many other examples that would have to be explained, like espionage, forgery, perjury, fraud, conspiracy, procurement (pimping), gambling, libel and slander, copyright violation,  securities violation, false advertising, truth in lending violations, product mislabeling, unregulated health claims, usury or any illegal contract, or any  of the other numerous violations that involve an element of speech.

Not to write a monograph here on the subject of the separation of powers for the Governor, who is a Harvard trained lawyer and top attorney who should be familiar with the subject, I will just ask whether he disagrees with President Franklin D. Roosevelt when FDR accused a majority of Supreme Court justices of violating the most venerable rule of constitutional interpretation, one that was specifically designed to uphold that basic framework of the Constitution.

The Supreme Court should, Roosevelt quoted, “presume in favor of [a law's] validity until its violation of the Constitution is proved beyond all reasonable doubt.”  Roosevelt quoted this particular statement of the rule from the opinion in Ogden v. Saunders (U.S., 1827) of Bushrod Washington, the nephew and heir of George Washington.

Roosevelt charged that, by violating this rule, “the Court has been acting not as a judicial body, but as a policy-making body.”

If you doubt that the McCutcheon opinion reflects the original meaning of the Constitution, the people’s general view of the Constitution, your own presumably reasonable view of the correctness of decision, while four justices on the Supreme Court also agree with you, how could you think that there is no “reasonable doubt” about its validity?

If you were a judge, which is not a farfetched supposition, would you rule that Chief Justice Roberts has “proved beyond all reasonable doubt” to your satisfaction that prohibiting plutocrats from paying millions to politicians violates the Constitution we received from the founders for very purpose of preserving, not undermining by corruption, our republican form of government?  Or do you think, as Roosevelt did about similar legislating from the bench, that “the Court has been acting not as a judicial body, but as a policy-making body” by inventing such a rule that neither you nor anyone else but the Roberts 5 can find in the Constitution?

If the latter, then how can you at the same time “respect the authority of the Supreme Court” to make such a decision that violates the traditional limits on the scope of its constitutional authority to strike down only those laws that violate the Constitution beyond any reasonable doubt?  As a judge would your dissent not argue that the majority lacks authority to make such a decision?

Is so, is it not your professional obligation as a prominent attorney who at the same time has been elected to represent, as you suggested in the same interview, the interests of the voters who do not have the money to influence politicians, to speak up like FDR did?  Do you not have an obligation to contest the Supreme Court’s right to illegitimately usurp legislative authority on a matter of such profound importance to the basic survival of the Constitution?

You have sworn several times to uphold the Constitution.  By publicly advocating the “authority of the Supreme Court” to “usurp [jurisdiction] which is not given” you instead seem to be suborning what Chief Justice Marshall defined as “treason to the constitution.”  Cohens v Virginia, 19 U.S. at 387 (1821).

Rob Hager is a public interest litigator.  Most recently he submitted briefs in the  American Tradition Partnership, Inc. v. Bullock 2012 U.S. Supreme Court appeal challenging the notorious Citizens United ruling that legalized unlimited corporate electioneering expenditures in US elections.  He is currently  writing a book on remedies for the corruption of U.S. politics by private campaign financing, and has published numerous articles on the subject of money in politics.