The Urgent Warning That Got Cut From a Supreme Court Opinion 20 Years Ago

[Nevilledog]

https://slate.com/news-and-politics/2023/05/harlan-crow-clarence-thomas-souter-plutocracy.html

More than 20 years ago, then-Supreme Court Justice David Souter tried to warn that big money in politics risked turning United States officials into tools of an emerging “plutocracy.” We now know from recently-released case files that Souter had to strike the language in his draft Supreme Court opinion in a 2000 campaign finance case, Nixon v. Shrink Missouri Government PAC, as the price to secure Justice Sandra Day O’Connor’s vote. It’s too bad, because Souter’s warning is one that American political leaders, including justices on the Supreme Court itself, needed to hear. That warning was never made and thus never heeded. Today, American plutocracy—from Congress to inside the walls of the court itself—is alive and well.

Justice Souter was one of the most important, if underrated, voices among Supreme Court justices on questions of money in politics. His opinion in Shrink Missouri and similar cases in the early 2000s offered a jurisprudence of the First Amendment that is so different from the current Citizens United-fueled era in which limits on money in politics are mostly meaningless.

Writing in Shrink Missouri, Souter opined that limits on huge donations were essential to a functioning democracy and the public’s confidence in it: “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” This was an important warning, but Souter wanted to go much further. Souter’s original note of caution, not previously reported to my knowledge, was that there existed “broader threat that politicians grown dependent on large contributions will lose critical independence and instinctively identify interests of a plutocracy with the public good.” Tragically, this is very much what has happened in the years since the Supreme Court’s balance of power shifted when Justice O’Connor retired in 2006 and the Citizens United era ushered in a new gilded age.

It’s important to understand the framework Souter was working in. The justice had a problem in how he described the problem of big money in politics: he had to frame everything in terms of preventing corruption rather than leveling the playing field among citizens. In a key 1976 case, Buckley v. Valeo, the Supreme Court upheld campaign contribution limits against First Amendment challenge by pointing to the government’s strong interest in preventing corruption and its appearance. But it rejected the idea that limiting money also could be justified to promote political equality: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

*snip*

[spanone]

1. K&R

[niyad]

2. KNR

[genxlib]

3. It's a feature...not a bug

This border on being so obvious that it was pointless to even have to say so.

And it was as obvious to the people that voted for it as the ones that voted against it.

[lastlib]

4. And now, if we elect any politician (at any level) who doesn't call

for overturning the Citizens United decision, we do so at our peril.

[FakeNoose]

6. It's a Catch-22 though, you know?

Any political candidate that really wants to write the legislation that will end the "Big Money" elections ... well, that person will never get elected. They won't get enough donations to launch their campaign.

[jaxexpat]

17. I think it's probable that the Citizens United decision will not be overturned......

until and unless we experience a modern American hybridized version of last century's peasant uprising in Russia or maybe the 18th century's reign of terror. From my perspective, I see good people everywhere in a battle with the potential of freefall into totalitarianism. Unfortunately, too few of them are placed in positions of power and they generally retain only temporary positions relying on the fickle will of voters.

For solution, it is incumbent for those on top to acquiesce to the needs of the society at large in order to prevent the whole of society's dissolution. At this time, I see no wealthy citizens volunteering to join a significant host of their fellows in sacrificing their wealth and power to the common good. I see quite the opposite actually because, on this issue, those citizens are indeed united.

[alittlelark]

5. Prescient.

[calimary]

7. No kidding!!!

[Cherokee100]

8. Can we say

Can we say, 'Citizens United'?

[Takket]

9. People should be electing leaders to pass laws that tell corporations how they can conduct their

Business.

NOT the other way around.

[inthewind21]

10. People

Are. Last I checked it was still the people casting votes. Sure corporations can dump loads of cash compliments of the SC, but it's still up to the "people" to do the actual voting. And judging by the SC we have now, well...apparently corporate cash wasn't on the peoples radar.

[Stargazer99]

19. And money can pay to gasloight the citizens-brain washing

[mjvpi]

11. A prophet of profit

[LetMyPeopleVote]

12. This warning was ignored

Link to tweet

[intheflow]

13. Sandra Day O'Connor fucked the US over again.

I know she had buyer’s remorse about ending the 2001 recount, but that was after her retirement. While she was in the bench she was all about the money and had the hubris to believe her judgements were infallible, as well as a kind of willful naïveté about the likely consequences of her actions.

[ancianita]

23. +1

I will never forgive her for pushing the Bush v Gore decision, buyer's remorse or not. She betrayed states rights by pushing to override the Florida Supreme Court and constitutional rule of law.

[WestMichRad]

14. Indeed. And limiting the large contributions of rich donors...

… would not prevent them from speaking about the issues. It would only prevent them from unfairly tipping the balance to grossly favor moneyed interests.

[MustLoveBeagles]

15. K&R

[TeamProg]

16. K&R Thanks for posting. n/t

[reymega life]

18. this will happen

the Supreme Court will be reformed of shutdown
The Supreme Court will either be shut down or reformed because they could start thinking January 6th was best for business and presidents in the near future will just ignore them' And they'll go the way of the Holy See or the Vatican in regards to the Italian government, And they could rule that women are monkeys and that's the law of the land any other opinion is a violation of that law and you will be prosecuted WHICH MEANS JAIL TIME, for the offender, I PREDICT that they'll become an elected body of government where you elect the justices or chief justices.

[Escurumbele]

20. Other people had been warning about that, and other issues that now hurt our Democracy

Do people pay attention? No they don't. republican crooks spell out what they are going to do and people don't seem to be able to grasp the clear and transparent message.

I always think about the video of the republican politician (can't remember his name) who is at a townhall meeting, lots of white hair people of whom many probably live off social security, the politician tells them HE WANTS TO GET RID OF SOCIAL SECURITY, and what do these white hair people do? Like walruses, they clap...yeah, he wants to destroy my livelihood...hooray, I am voting for him!

People do not listen, and I hate to say that this guy's warning would have gone through one ear and out the other without stopping in people's brains for a little analysis.

One thing we must all be very clear about, republican criminals are not incompetent, they know what they are doing, and they are winning so far, that IS competence, whether it is criminal or not, that is not their concern, they have an agenda and they are carrying it out with lots of competence, they lack an understanding of consequences, they don't understand that their greed and evil ways will catch up to them as well, they just move on towards their goals. Its like idiot republican voters, they think that if republicans are able to eliminate social security that they will be exempt of it, they think that because they voted for the criminals nothing will happen to them, until it does. It is the same everywhere totalitarian regimes take power, those who helped them get there are the first ones to fly off to another country.

[JudyM]

21. Another important and fascinating OP, Nevilledog.

Astonishing how quickly their plan fell into place. Someone should send a copy to every member of the current Court.

[Nevilledog]

22. ...

[The Wizard]

24. You know what they say

Bribery doesn't cost, it pays.
Eisenhower warned us about the Military Industrial Complex in 1961. We've been on a permanent war footing since the Department of War (only fully funded when Congress declared war) became the Department of Defense. If anyone recognized military waste it was Ike.
Between the USSC and the DoD we're getting hosed.
The Citizens United Not Timid decision, written by Sammy "The Weasel" Alito has made corruption the norm. Does Sammy The Weasel have an offshore money laundry account?

[burrowowl]

25. Kick

[msfiddlestix]

26. Exceedingly vital to cut to the core of the matter. Most unfortunate for all of us his opinion was

dismissed and buried. His voice muted.

Highly recommended reading.

[2naSalit]

27. Well, now we know...

What that looks like.

Time for a change of scenery.

[pansypoo53219]

28. of corporations, by corporations for corporations. crapitalism.