Right Decision, Bad Law, and a Way Out

Predictably, conservatives and liberals have taken quite different positions on the Supreme Court decision upholding the right of corporations to finance political advertising. To conservatives, the decision (which refused to strike down corporate funding of a political film) was a righteous affirmation of constitutional guarantees of free speech. Liberals saw the Court's ruling as handing the keys of government to greedy corporate fat cats who would use huge warchests to buy or bludgeon legislators.

There is something inherently wrong with both positions. Both the Left and Right are more concerned with achieving the policy outcome--and the election results--they prefer than with ensuring that federal campaign law comports with the requirements of the Constitution. In fact, the Court, bound by bad precedent, managed to issue a constitutionally correct decision that results in bad law; the dissenters, on the other hand, mistaking their judicial robes for certificates of election, would have preferred making better law even if it was unconstitutional. It is an unnecessary choice. There is, in fact, a way to come up with the better policy and yet stay within the bounds of constitutional permissibility.

First, four side observations, only because some of the reasoning that seeped down from the Bench set my teeth on edge.

1. Justice Roberts and the majority simply failed to acknowledge the consequences of the "perception" problem and its deleterious effect on the political system. Rightly or wrongly, many Americans believe the current system of financing elections and issue advocacy to have a corrupting effect. Cynicism leads to non-participation and non-participation undermines democracy.

2. Justice Stevens, on the other hand, writing in dissent, failed to sufficiently consider the existence, and binding effect, of a written Constitution. His concerns as to the political effect of the Majority's ruling may be justified but his proposed outcome lacked the sanction of constitutionality. Stevens did give welcome lip service to the congressional authority to write the laws it deems necessary and appropriate but failed to fully appreciate that the powers of Congress are not absolute but constitutionally constrained.

3. As to the question of corruption (a principal concern of the dissent), Justice Stevens has apparently accepted the cynical view of the lawmaking process that has been put forth by a number of political scientists and journalists; that is, that lawmakers are driven primarily by the desire to win re-election and that as a consequence they are easily seduced by the prospect of financial support for their campaigns. It is a view that is widely held and easily disproved. While a fear of defeat may cause some officeholders to sometimes withdraw from pursuing their true beliefs, especially on issues that mean little to them, the surest means of predicting how a legislator will vote is understanding the preferences of that legislator's constituents and knowing his or her basic philosophic approach to governance; coasting or under fire, conservatives stay conservative and liberals stay liberal. It is understandable why rank-and-file observers, cynical by nature and anti-government by long tradition, might buy the argument that all lawmakers are for sale but it is surprising that the well-educated would fall for such a superficial interpretation of why votes often turn out differently than one might wish.

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Mickey Edwards spent 16 years in Congress and 16 years teaching at Harvard and Princeton. He is a director of The Constitution Project and wrote Reclaiming Conservatism. More

Mickey Edwards was a member of Congress for 16 years and a chairman of the House Republican leadership's policy committee. After leaving Congress, he taught at Harvard for 11 years, where he was voted the Kennedy School's most outstanding teacher, and at Princeton for five years. He currently runs a political leadership program for elected officials as Vice President of the Aspen Institute and teaches defense policy and foreign policy at George Washington University. He has been a weekly columnist for The L.A. Times and The Chicago Tribune and is a weekly commentator on National Public Radio. Edwards served for five years as national chairman of the American Conservative Union and the annual Conservative Political Action Conference. He was one of three founding trustees of the Heritage Foundation. In 1980, he directed more than a dozen joint House-Senate policy advisory task forces for Ronald Reagan's presidential campaign. He is a director of The Constitution Project and has chaired task forces for the Council on Foreign Relations and the Brookings Institution. He served on the American Bar Association task force that condemned President George W. Bush, and his most recent book, Reclaiming Conservatism, was published in 2008.

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