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April 03, 2014 12:29 PM Constitutionalizing Privilege

By Ed Kilgore

There have been a lot of varying assessments about the short-term and long-term impact of yesterday’s McCutcheon v. FEC decision on the campaign finance system. Maybe it will shift some money from Super PACs to party committees, or maybe it won’t. And perhaps it shows we’re at most one more conservative Justice away from a complete abolition of campaign finance regulations.

But in the broadest possible perspective as a landmark for the judicial wing of the ascendent conservative movement, it represents another step towards what might be called the “constitutionalization of privilege”—another piece of public life taken out of the give-and-take of democratic politics and enshrined behind the golden wall of an expanded notion of constitutional rights. It’s not just happening in the specialized area of campaign finance regulations. As Haley Sweetland Edwards observed in her important Washington Monthly article earlier this year on “The Corporate Free Speech Racket,” the same jurisprudence underlying such SCOTUS decisions as Citizens United and now McCutcheon is being deployed to take away government’s powers to regulate corporations generally.

Over the past few years, corporations like Nike, Verizon, Google, and the big credit ratings agencies like S&P and Moody’s have been crafting innovative new First Amendment defenses to parry all sorts of “government intrusions,” from antitrust suits to false advertising. Last summer, the U.S. Chamber of Commerce attacked two new Securities and Exchange Commission rules mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act that required publicly traded international corporations, including Exxon and Chevron, to disclose certain information to the public (such as how much they were paying host countries for their extraction rights). Forcing those companies to speak, the Chamber argued, was a violation of their First Amendment-protected commercial speech….
[I]f industry goes on to win the war—if they collect a body of First Amendment case law establishing that corporations’ First Amendment-protected speech cannot reasonably be fettered by economic regulation—our society will be in a world of hurt. There will be no corporate transparency whatsoever. No way to enforce workers’ rights. No way to compel companies to protect investors or shareholders. And all regulations that require corporate disclosure, including most financial regulations, will cease to exist in any meaningful way.

While we tend to think of the judiciary as the quintessential elite institution remote from the passions and prejudices of the Tea Party, the conservative legal revolution is also a first cousin to the “constitutional conservative” claim that reactionary nostrums ranging from absolute private property rights to protection of “the unborn” should be permanently taken out of the political arena and regarded as part of the eternal legacy of the Founders (if not the ordinances of Almighty God), safe from the predations of socialists and secularists wielding illegitimate power via corrupt popular majorities. Indeed, during the early phase of the New Deal, it was the Supreme Court, in its Lochner era, that posed the greatest threat to the power of the people acting through elected representatives to govern themselves in a way presumed to violate the “constitutional conservatism” of the day.

The pomp surrounding the judiciary, and its elliptical approach to lawmaking and lawbreaking, should not disguise the fact that conservative Justices are raising a Gadsden Flag with almost every decision adding a new corporate “right” to their interpretation of the Constitution. So far all progressives can do is to bewail the trends and hope to control the future shape of the judiciary by electing presidents and Senate majorities that might push back the conservative revolution. But make no mistake, it’s the same basic struggle that led FDR to promote his incautious (but indirectly successful) court-packing scheme. The “independent judiciary” is simply not independent from the ideological hubris presently gripping the conservative movement and the Republican Party.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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