The Supreme Court is Responsible for the Wave of Political Violence
Sweeping the Nation


          Electoral politics is the peaceful way conflicts get resolved in a democratic society. Over the past fifty years, the United States Supreme Court has taken political power away from the people by closing the public forum and giving a monopoly to the Democratic and Republican parties, the monied classes, and itself. It has made the United States into a feudal country, and the people, especially the young, the Blacks, and small businesses who are seeing their futures destroyed by the Covid-19 pandemic, are justifiably furious that they have no representation in government and that their opinions and needs are not being addressed.


            The United States Constitution does not mention political parties, not because they did not exist in 1789, but because the founders of the nation knew from the experience of self-government and fighting wars that allegiance to a party could impinge on a person's dedication to the national interest.


The History of Parties


            The United States has always had fluid political parties. The original Federalists and Anti-Federalists morphed into the Whigs and Democratic-Republicans. Once the founding fathers had passed from the scene, presidential elections were multi-party. The 1824 election had four serious candidates: John Quincy Adams, Andrew Jackson, Henry Clay, and William Crawford. The 1836 election was a five-way race.


            Prior to the Civil War, the Free Soil and the Know-Nothing parties responded to the inertia of the Democrats and Whigs. The Republican Party emerged in 1856 to take up the slavery issue that the dominant parties were avoiding or finessing.


            After the Civil War, came the Progressive, Silver, Socialist, and Prohibition Parties in addition to the Republicans and Democrats. The 1948 presidential election was a four-way race between Democrat Harry Truman, Republican Thomas Dewey, Dixiecrat Strom Thurmond, and Progressive Henry Wallace. In the 1960 election, segregationist Harry F. Byrd, Jr. received 15 electoral votes in the deep South. In 1968, Alabama Governor George Wallace ran on the American Independent Party ticket. So, the United States has never been a strictly two-party system.


Campaign Finance Reform


            In 1975, after Nixon's impeachment and resignation, Congress passed amendments to the Federal Election Campaign Act, designed to "take money out of politics." For the first time in history, the federal government started giving money directly to political parties. Millions of dollars, some on a matching basis, went to the Republican and Democratic parties and their primary candidates with nothing being given up-front to anyone else.


            This blatant bias toward the Republicans and Democrats was challenged in the courts. The First Amendment prohibits Congress from abridging anyone's freedom of speech. The Supreme Court found the law valid and that using taxpayer funds to finance the speech of some parties, but not others was allowed because, far from suppressing speech, giving money to the Democrats and Republicans created more speech. The fact that some people had to spend their time and energy raising funds before they could be heard, while the Republicans and Democrats could just start talking without having to raise money first, was considered completely fair by the Supreme Court, all appointed by Republican and Democratic presidents. Several dissents and the debates in Congress warned that this was a dangerous, inappropriate, and unprecedented interference of the federal government in political debate.


            Another feature of the campaign finance regime was to limit campaign contributions and impose spending limits. Everyone agreed that limiting contributions and spending was an abridgment of freedom of speech, but the Court excused the limitation by saying that the government has an interest in preventing the reality and appearance of corruption by restricting the influence of large donors on elected officials. The court removed the limits on what candidates could contribute to their own campaigns, because an elected officials can't be corrupted by their own money.


            This is why Steve Forbes ran for president in 1996. He wanted to support Jack Kemp, but was limited to a few thousand dollars in contributions to Kemp. He could, however, spend as many millions of his own money as he wished on his own candidacy. The net result of this double standard has been that millionaires have become able to buy high office because they, in effect, have access to unlimited funds, while supporters of candidates without personal fortunes are limited by law as to what they can contribute.


Outlawing Poor Candidates


            What about candidates with no money or access to contributions? About fifteen years later, in Forbes v. Arkansas Educational Television Commission, the Court effectively outlawed candidates with no money. The Supreme Court held that Ralph Forbes, an independent candidate in Arkansas's Third Congressional District, could be excluded from a debate between his Republican and Democratic opponents being held by a taxpayer-funded public television station in Arkansas because he was getting only 3% in the polls.


            The Court held that if Forbes had been excluded because he favored abortion or any other "issue," then the exclusion would be unconstitutional. But because he was being excluded only because he was unknown and polling poorly, not only could he be kept out of the publicly-funded debate, but the organizers had a duty to exercise their editorial discretion, just like their commercial peers, not to waste voters' time on candidates who couldn't win. Having no money or being unknown was not a political issue, according to the Court. The possibility that Forbes' 3% knew something that the other 97% might support if they were permitted to hear about it seems to have eluded the Justices. If the only way to be heard, then,  is to spend money, and some candidates' parties are getting public funds while others receive none, it effectively outlaws poor candidates if they can also be excluded from publicly funded debates. This was Bill Clinton's contribution to the two-party fix on his climb to the White House.


            At about this time, Congress repealed the equal time provisions of the Federal Communications Act. Beginning with the licensing of radio in the 1920s, the federal government had required that if time on the public airwaves waves was given to one candidate in an election contest, then the station had to make available equal time for all her or his opponents. If the candidate bought advertisements, then the station had to allowed opponents to buy an equal amount of time. Under the influence of the Reagan administration, this equity rule in broadcasting came to an end, leading to the rise of the hyper-partisan media of today.


            These limitations on political speech through campaign finance reform, far from reducing the influence of money in politics, has led to the skyrocketing cost of political campaigns. In 2015-16, presidential and congressional campaigns combined spent over $3 billion (that's $20 per voter). Political Party Committees spent another $1.6 billion ($10 per voter.). As a result of these campaign finance reforms, elected officials spend most of their time soliciting funds while voters have been reduced to being customers who are constantly asked for contributions and then permitted to pick their political product on Election Day. This system is neither democratic, nor is it self-government.


            The Court didn't stop with banning independent candidates from debates, or just denying them equal treatment in the public forum, they went on to permit states to prevent access to the ballot and stop people from voting for whoever they want. In 1986, Honolulu resident Alan Burdick went to vote and found only one candidate on the ballot. Denied the opportunity to write-in his choice, he sued against Hawaii's ban on write-in voting, claiming it abridged his freedom of speech.


            The Court found that the state's interest in preventing "unbridled factionalism and party raiding," combined with the ease of access to the primary ballot, justified this minor infringement on Burdick's freedom of expression. In other words, Hawaii voters could not vote for whoever they wanted, only for party candidates. The law has since changed, but not the attitude of the Supreme Court.


The Role of the Supreme Court


            So, it was not surprising in the infamous 2000 Bush v. Gore case that the Court wrote: "The individual citizen has no federal right to vote for electors for president of the United States..." There's another right that's missing in the Constitution, the right of the Supreme Court to involve itself in deciding contested presidential elections.


            The Supreme Court used the same "equal protection" argument to stop the vote count in Florida that it denied the petitioners in the campaign finance case who claimed that funding some candidates but not others was a denial of their equal rights, not to mention freedom of speech.


            Since putting the loser in the White House,[1] the  Court has taken a wrecking ball to the voting-rights act and the remainder of the restraints on political spending, but not on the limits to contributions to candidates, all under the rubric of equal protection.


            In feudal societies, all power was held by the warrior-noble class or the priestly class. Everyone else was just a serf, slave, or peon with few personal rights and no civic ones. Under the two-party regime imposed by the Supreme Court, the Republicans are the police-business party, and the Democrats are the teacher-academic party. The taxpayers and poor people are left out of this system entirely, which is why only 61.4% of voting-age eligible American citizens cast ballots in the presidential year 2016, and 53.4% in 2018, the highest off-year turnout since 1978 (it was 41.9%, the lowest, in 2014)..


            James Madison, the drafter of the First Amendment and Fourth President of the United States, wrote: "A popular government, without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance. And a people who mean to be their own governors must arm themselves with the power knowledge gives."


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Contact: Joshua Leinsdorf

[1] See Too Close to Call by Jeffrey Toobin and  Down and Dirty: The Plot to Steal the Presidency by Jake Tapper