Poisoning America’s Democracy
As a condition of their certification, medical doctors are required to take the Hippocratic Oath in which they pledge to “do no harm” to their patients and to maintain the confidential nature of information learned in the course of serving their patients. While virtually all doctors scrupulously observe these undertakings, there nevertheless have been a few that have poisoned their patients. I’m not talking about accidents or even cases if euthanasia. I’m referring to doctors, like Dr. Joseph Michael Swango, who is reported to have poisoned as many as 60 of his patients. There are dozens of varieties of poisons; some attack the body’s vital organs and some simply degrade the body’s immune system, leaving it vulnerable to attack by other pathogens. It’s this latter form of poison that leads to a slow death similar to the one that is now undermining our democratic system and endangering its continuing existence.
Like human bodies, democracies have immune systems. They consist of the checks and balances that exist between the major branches of government, keeping one branch that has become hyperactive from destroying the entire system of government. Another component of our nation’s immune system is term limits which facilitate the periodic removal of office holders when they become ineffective or even destructive. Ultimately, democracies rely of the will of their citizens who, like the millions or antigens in a human body, can bind together to attack and eliminate destructive elements that have gained entry into the nation’s governmental system.
Like medical doctors, U.S. Supreme Court Justices similarly take a two-part oath before assuming their position on our nation’s highest court. The first part of their oath is to support and defend the Constitution; and the second is to “faithfully and impartially discharge and perform all the duties incumbent upon” them. Yet, over the past fourteen years several of our Supreme Court’s justices have disregarded their oaths of office and have rendered decision which have acted as poisons undermining the safeguards that protect our nation’s democratic system of government.
That process began in 2010 with the Court’s decision in Citizens United v. Federal Election Commission. This 5-4 opinion drafted by Chief Justice Roberts held that limitations imposed in the 2002 McCain-Feingold Act on campaign contributions made by corporations, labor unions and other collective entities violate of the Constitution’s First Amendment guarantee of free speech. To reach this startling conclusion the Court had to first find that campaign contributions are a form of speech and second that the rights protected by the First Amendment extend to legal entities as well as individuals. Although there were prior cases containing language supporting both of these propositions, combining them posed a serious danger to the very concept that our president and members of Congress are intended to be elected by registered voters, not by legal entities.
It must be appreciated that the McCain-Feingold legislation was not our Congress’ first attempt to limit campaign contributions by legal entities. The need for such legislation had been first recognized by Teddy Roosevelt in 1905 in his annual message to the Congress. Congress’ response was included in the Tillman Act enacted in 1907 which prohibited all corporations and national banks from making direct financial contributions to candidates for federal office. The prohibitions found in the Tillman Act were expanded by the Federal Corrupt Practices Act enacted in 1925, the Hatch Act of 1940, the Smith-Connally Act of 1943 and the Taft-Hartley Act of 1947.
In 1971 Congress enacted the Federal Elections Campaign Act (FECA) which created the Federal Elections Commission along with a comprehensive regulatory framework for conducting campaign financing activities. The underlying rationale for these laws was both to assure the integrity of the elective process and to prevent elected officials from being unduly influenced through campaign contributions to act against the public interest. The McCain-Feingold Act was simply a refinement of the Congress’ previous efforts to limit institutions and wealthy individuals from controlling the democratic processes laid out in the Constitution for electing federal officer and legislators.
The Court’s decision in Citizens United opened the door to large campaign contributions which have an outsized influence on the outcome of political elections. While large campaign contributions technically still cannot be made directly to political candidates and their parties, they can be made in unlimited amounts to super-PACs which in turn can purchase advertisements supporting the political candidates of their choosing. Even though super-PACs are required to be independent of the candidates and their political parties, that limitation has become essentially meaningless. That’s because that restriction is enforced by the Federal Elections Commission which is composed of an equal number of commissioners from the nation’s two principal political parties, thereby assuring that it will never act in a manner that will adversely affect either of those parties’ candidates.
The importance of political advertisements cannot be overstated. Effective political campaigns need to reach over one hundred million potential voters and that can only be achieved via the various forms of public media. Moreover, the effectiveness of a political message often is a function of the number of times it is repeated. This means that political candidates must raise large sums of money in order to conduct a successful campaign. This explains why registered voters who have previously made a political contribution routinely received as many as a half a dozen requests for political donations a day from presidential candidates as well as similar requests from dozens of candidates running for Senate and House seats in other states.
In this decision, Chief Justice Roberts disingenuously reasoned that unlimited spending by wealthy donors and corporations would not distort the political process because the public would be able to see who was paying for ads and would “give proper weight to different speakers and messages.” This assertion, however, suffers from the fact that it is not readily apparent who’s actually behind a given campaign advertisement which might only identify its proponent as an entity with a civic-sounding name such as “Americans for Liberty.” More importantly, even when individuals (or most likely, news organizations) seek to determine the source of the money funding a given advertisements, they will discover that it was funded by “dark money”; i.e., money provided by another organization (with a similarly non-descript name) not required to disclose the identity of its donors.
The problems created by the Court’s decision in Citizens United goes well beyond the public’s inability to discover the true identity of the advertiser. It opens the door to advertising campaigns that may be so overwhelming that a candidate or a political party under attack will be hard-pressed to overcome it. This ruling is what has caused the costs of political campaigns to escalate so dramatically. A single billionaire (of which 756 live in the U.S.) can easily determine the outcome of a race for a seat in the U.S. Senate. For example, J.D. Vance, an individual in his mid-30’s with no prior governmental experience, was able to become a U.S. Senator of a highly populated state largely because his campaign was supported by a reported $15 million contribution from Peter Thiel. A political candidate relying on small donations from his/her supporters cannot effectively compete against candidates funded by corporations and wealthy individuals even when they are identified as the source of their opponent’s funding.
The result of the Court’s decision in Citizens United has been to greatly diminish the power of individual voters to prevent the election of unqualified of otherwise repugnant government officials and to subsequently remove from office those improvidently elected.
Another perversion of our democratic system facilitated by the Supreme Court is the practice of gerrymandering election districts. As previous reported in “A New Surge of an Old Pathogen” gerrymandering was first brought to the attention of the American public in 1812 when Massachusetts’s Governor Elbridge Gerry signed into law a very unusually drawn electoral districting map designed to maximize the number of his party’s legislative representatives. Because one of the electoral districts depicted on that map resembled a salamander, the map was referred to as a “Gerrymander.” The practice of gerrymandering electoral districts not only dates back to the very beginning of our nation, but has evolved from a rudimentary political art form into an exact science through the use of computers and electronic databases. It has been characterized as enabling political candidates to choose their voters rather than the voters choosing their elected representatives – hardly what our nation’s founders had in mind.
In the post-Civil War era, gerrymandering became popular in the South where it was used to virtually eliminate the representation of blacks in state legislatures. That practice was almost completely eliminated by the Civil Rights Act of 1965 which prohibited the states from curtailing the voting rights of blacks and other minority groups. In addition, Section 5 of that Act required that any changes in the voting laws of states with a history of discriminating against its minority citizens had to be pre-approved by the Department of Justice. In the ten years following the adoption of the Voting Rights Act the differential between the percentages of registered white voters and blacks voters dropped from 30% to 8%.
Because the Republican Party had been so soundly defeated in the 1964 presidential election and because the Johnson administration had passed a plethora of civil rights legislation, it quickly adopted its “Southern Strategy.” In addition to seeking the support of Southern white voters, it adopted a plan to maximize its use of gerrymandering. Repealing the Voting Rights Act, however, would have been difficult as that would have required not only holding a majority of the seats in the House of Representatives but also overcoming the filibuster rule in the Senate. Republicans, therefore, focused on obtaining control of the Supreme Court which it did during the administration of President George W. Bush. In 2013, this led to the Court’s decision in Shelby County v. Holder, in which it held unconstitutional Section 5 of the Voting Rights Act.
Specifically, the Court ruled that the Act’s pre-clearance requirement (which did not apply to all states) imposed “an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states.” Of course, there’s nothing in the Constitution requiring Acts of Congress to apply equally to all state; that was simply a creation of Chief Justice Roberts who drafted the Court’s decision. In addition, the Chief Justice bolstered the Court’s ruling by asserting that Congress’ determination as to which states were subject to the pre-clearance requirement was based upon conditions that existed in the 1960s and “imposes current burdens that are no longer responsive to the current conditions in the voting districts in question.” That was a particularly starling rationale when you consider that the Congress had voted to renew the entire Voting Rights Act in 2006. Moreover, within weeks following the Court’s decision, there was a race in Republican-controlled states to adopt new voting laws that discriminated against black voters.
Since its decision in Shelby County v. Holder, the Court has gone on to further expand the use of gerrymandered election districts in two ways. In 2019, the Supreme Court rendered its decision in Rucho v. Common Cause in which it declined to consider the constitutionality of two cases involving partisan gerrymandering (i.e. gerrymandering not in violation of the Voting Rights Act). In reaching that conclusion, the Chief Justice (again writing for the Court) reasoned that partisan gerrymandering poses a political question that is outside the Court’s power to resolve. Even though this ruling ignores the Constitutional precept of “one man, one vote”, it was perfectly understandable as a contrary ruling would have caused the Court to usurp the legislative powers of the Congress by fashioning a rule setting forth when voting districts are illegally drawn. As discussed below, this concern, however, did not deter the Chief Justice creating a doctrine of presidential immunity against criminal actions.
In 2021, the Court decided Brnovich v. Democratic National Committee in which it held that gerrymandered electoral districts that have the effect of violating the Voting Rights Act would nevertheless not be deemed in violation of that Act unless it was proven that racial discrimination was the intent of the state legislature’s action. In short, the Court inserted an “intent” requirement in the Voting Rights Act, something the Congress had chosen not to include. This decision essentially means that state legislatures can now limit the voting rights of minorities as long as they are careful to avoid generating evidence of a discriminatory intent. Although the Court has since seemingly departed from its decision in Brnovich, it did not overrule it or otherwise seek to limit its application.
The impact of the Court’s decisions in the gerrymandering cases have far-reaching implications. State legislatures, by being able to establish gerrymandered election districts, can effectively lock-in their party’s continued control of the legislative process. This, in turn, will enable them to freely enact other forms of voting restrictions such as limitations on (a) the number of days and dates for early voting, (b) the hours in which polls will be open, (c) who can vote by mail and when those votes must be received, (d) requirements that voter registrations be renewed each time voters change their residence, and (e) the number and locations of polling locations. Some state legislatures have even relegated to themselves the power to remove from office elected election officials and to impose harsh penalties on election officials who violate the rules they establish for the conduct of elections. Using these devices they can also materially affect the outcome of statewide elections which encompass the elections of their state’s governor, lieutenant governor, attorney general, secretary of state and U.S. senators.
The Court’s recent decision in Donald J. Trump v. United States represents yet another dose of poison for our democratic system of government administered by our Supreme Court. As previously explained, this decision gives a sitting president lifetime immunity from criminal prosecution for crimes committed in the course of performing official duties. In addition, it also prevents a president’s official actions from being used as evidence in a criminal proceeding arising out of that president’s non-official acts. This effectively would allow a president to act as a ruthless dictator without fear of retribution. Aside from the Court’s obvious intent of exculpating former President Trump from his current legal challenges, this decision has no basis in our Constitution or the discussions leading to its adoption. Moreover, it usurps the authority of the legislative and executive branches to enact laws. Indeed, it is so repugnant to the nation’s Constitution that it has already prompted President Biden to not only disavow it but to propose legislation to overturn it.
Benjamin Franklin has been reported to have said of our Constitution: it calls for our nation to be governed as a “Republic” and not a “monarchy”, but only “if we can keep it.” This observation was undoubtedly born out of a fear that there would always be people who are unwilling to entrust the control of our nation to its citizens and would seek to undermine the governmental system envisioned in the Constitution. Such individuals are now in control of our Supreme Court and have been flouting their oaths of office and administering poisons that attacks the underlying safeguards intended to protect our nation’s democratic system of government.