The Supreme Court's Funny Ideas about "Freedom"

The Supreme Court, or rather the "gang of four" ultrarightists (Chief Justice Roberts, Alito, Scalia, and Thomas) along with, William Kennedy, who has apparently joined the gang since their numbers expanded under GW Bush from three to four and Sandra Day O'Connor is no longer around as a restraining influence, voted today to gut the McCain-Feingold "Bipartisan Campaign Reform Act" of 2002, the act had previously been upheld in 2003, by a five to four vote.

Let me say that "McCain-Feingold" is nothing to cheer about and in no way makes the U.S. seriously in line with many other developed capitalist countries. These countries have strict restrictions on the amount of time political campaigning can be carried on, the monies and the monies used by parties in such campaigns, often providing free but very limited access to television advertising to prevent those with great wealth from dominating the media But it was a response, however limited, to growing public awareness of the use of huge amounts of money to purchase nominations and elections in the United States.

The present ruling will no doubt lead to a significant increase in the use of money in the 2008 elections, which will not only aid the Republican Right but compel various non-right candidates to "moderate" their positions in order to raise more funds from corporations and the wealthy. The case itself involves campaign "ads" by a Wisconsin Right to Life Group, which were clearly in violation of McCain-Feingold provisions, which bar aids from third party groups (defined as "corporations and unions" in the act) within sixty days of a primary or election. The ad called upon viewers to contact Senator Feingold (cosponsor of the legislation that the Court is gutting, and a supporter of reproductive rights which the group opposes) and directed viewers to an anti-Feingold website attacking his re-election campaign. (I forgot to mention that he was running for re-election and the ad was within the sixty day time frame but the court didn't consider that important.)

The majority ruling, drafted by Chief Justice Roberts, contended that since the "ads may be reasonably interpreted as something other than an appeal to vote for or against a specific candidate" they do not fall under the law. Reasonably interpreted by whom? Ads aimed at a reproductive rights advocate by opponents of his position, instructing viewers to visit a website opposing his re-election? The law, the ruling contended, should be "objective, focusing on the communications substance rather than amorphous considerations of intent and effect." Wow.

It is subjective to view ads of this kind as part of the campaign to defeat Senator Feingold's re-election? The substance of this ad concerns a reasoned discussion on the question of reproductive rights? In the dissent, written by Judge David Souter (a conservative Republican from New Hampshire when GW's dad appointed him, but someone who has infuriated the right nationally by voting pretty consistently against them on the court) the point was made that "after today the ban on contributions by corporations and unions and the limitations on their corrosive spending when the enter the political arena are open to easy circumvention, and the possibility of regulating corporate and union campaign money are unclear."

Let me say, since even the liberal media won't, that there is no equal sign between corporations and trade unions in U.S. politics. Trade unions do most in providing volunteer labor to pro labor candidates. Their financial contributions, while significant, are not in any way comparable to the contributions of corporations and the wealthy. If they were the huge money gap in favor of Republicans and the right in major elections where it is believed that both candidates have a chance to win (sometimes as great as four to one in presidential elections) would not exist.

Let me also say that the figures that conservative and establishment political scientists often use to deny this are based on the fact that the great majority of congressional elections are non competitive and corporate money often flows to the winning candidate, even if that candidate is a progressive Democrat, in order to influence the candidate on various issues.

Many Americans know that even with the McCain-Feingold law there is no real check on the use of money in U.S. elections. Now that the law itself has been gutted by the Supreme Court, hopefully a progressive Congress will enact serious legislation to establish free and fair elections in the United States and a progressive administration will appoint judges who will sustain such legislation.

As a Monty Python postscript to this new anti-democratic ruling, the Court also voted five to four against an Alaska high school student who was punished by his high school for holding a banner with the words "Bong Hits 4 Jesus" by the school as the 2002 Winter Olympics torch parade went by. Bong Hits 4 Jesus was interpreted by the school as a direct assault on the school's anti-drug use message. Apparently the court didn't see it as "amorphous" in its intent and effect, or any violation of free speech.

The Alaska high school was represented by Kenneth Starr, that stirling representative of freedom who took the gossip provided him by Linda Tripp to intimidate with a threat of a long prison sentence Monica Lewinsky into testifying before a Congressional Committee in great detail about her sexual relationship with Bill Clinton which then served as the basis for the attempt to impeach Clinton for activities that had nothing to do with his role as president or even the question that Starr was initially assigned to investigate, that is, the Clinton's involvement many years earlier in the Whitewater Savings and Loan Bank affair.

Starr of course is very much in sync with this court and where its 5-4 majority appears to be going. The Court has told us that we should "err" on the side of free speech when it comes to an expensive television ad aimed at mobilizing anti-abortion voters to reject a Wisconsin Senator, since their motives are really unclear, but a teen-ager raising a banner, "Bong Hits 4 Jesus" outside a school aimed at a passing parade has no first amendment speech or assembly rights because that banner is interpreted as an attack on the school's drug policy I don't know how many people watching the Olympic torch understood the meaning of Bong Hits 4 Jesus as pro Drug. I certainly don't. I might even think that the percentage was much smaller than the percentage of Wisconsin TV viewers who understood that Wisconisn Right to Life's ad was a campaign ad against Senator Feingold. But these are not questions that concern this court.

Leadbelly used to sing a song that went "bourgouis democracy democracy for the bourgeoisie, it ain't democracy for you and me." Even though the Supreme Court might support his arrest for singing that in front of an Alaska high school if he were a student there, they went a long way to proving his point today by defining "free speech" speech as speech which is considered "free" both because of its content and also the ability of those who present it to pay for it in mass media.

--Norman Markowitz