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The Other Big Case the Supreme Court Got Right

“It is not our job to protect the people from the consequences of their political choices,” wrote U.S. Chief Justice John Roberts, making pretty clear what he thinks about Obamacare even as he supplied the crucial fifth vote to uphold it.

So Roberts gets big points for intellectual honesty, and the health-care decision will not join the surprisingly short list of Supreme Court rulings during our lifetime that liberals love to hate.

It has been 39 years since Roe v. Wade, the high water mark of liberal activism, and 43 years -- 28 of them with a Republican president choosing the justices -- since Warren Burger replaced Earl Warren as chief justice and the counterrevolution was supposed to start. One way or another, the major Warren Court rulings have dodged bullet after bullet.

Actually, there are only two cases in the past half-century that are notorious, from a liberal point of view: Bush v. Gore, which upheld the theft of the 2000 presidential election, and Citizens United v. Federal Election Commission, just two and a half years ago, which declared that corporations have a right of free speech under the First Amendment.

Bush v. Gore is indefensible. Citizens United is not. In fact, it was correctly decided, however deplorable the consequences. Liberals ought to show the chief justice that we too can acknowledge a principle even when we don’t agree with the result.

Photographer: Glenna Gordon/Bloomberg

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Photographer: Glenna Gordon/Bloomberg

Outright Ban

Citizens United overturned provisions of a law once known as McCain-Feingold, after its main sponsors. The law was “an outright ban, backed by criminal sanctions” (as Justice Anthony Kennedy’s majority opinion explained) on advocating the election or defeat of a candidate, or issuing any other “electioneering communication,” within 60 days of a general election or 30 days of a primary.

As applied to an individual, such a law would be obviously unconstitutional. Endorsement of a political candidate -- even if that candidate is yourself -- is about as central to the First Amendment as any category of speech can be. The government may restrict campaign contributions if it wishes (as it does), because a contribution isn’t speech and will not necessarily be spent on speech. Money spent promoting yourself or others for public office is speech, and can’t be censored.

Wait a moment, goes the response by every liberal newspaper and website in the nation. Speech by a corporation is different. Corporations are artificial entities, designed and built by the government. They have no more rights than Dr. Frankenstein’s monster. Human beings may decide to organize themselves as a corporation, but even real people don’t have a constitutional right to exercise their constitutional rights in corporate form.

A pretty good argument, I’ve always thought, but it stumbles over media companies (as Kennedy notes at length in Citizens United). If “money isn’t speech,” as many a New York Times editorial has declared, may the government put a limit on how much a corporation can spend publishing a newspaper?

The law Citizens United overturned actually exempted media companies from its spending limits. But the difficulty -- impossibility, really -- of defining a media company, and explaining why it should have more rights than any other company, suggests that a right granted to one company should be granted to all.

There is no doubt that this year’s election campaign has vindicated the concerns of critics of the Citizens United ruling. The influence of money in politics is greater than ever, and the influence of people with money is growing apace.

Inalienable Rights

So what’s the solution? Please don’t say, “Amend the Constitution.” The current political atmosphere is not one in which opening the First Amendment for discussion and reconsideration is a good idea. Anyway, constitutional rights are “inalienable” (as we were just reminded on July Fourth). Corporations will continue to have First Amendment rights even if we choose not to recognize them.

The solution is to make money a voting issue -- which now, by and large, it is not. It’s a kvetching issue, not a voting issue. Politicians -- who are not, primarily, in it for the money -- should have to make the calculation every time they spend a dollar or look the other way while others spend a dollar on their behalf: Will this money buy me more votes than it will cost me? All it would take would be the defeat of a few representatives (and maybe a senator or two) precisely because they or others spent an offensive amount of money on the effort to get re-elected.

This could completely change the relationship between dollars spent and election results, and it wouldn’t require judges to deny anybody his or her (or its) constitutional rights. As Chief Justice Roberts says, it’s not the Supreme Court’s job to save us from ourselves.

(Michael Kinsley is a Bloomberg View columnist. The opinions expressed are his own.)

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Today’s highlights: the editors on U.S. funding for Unesco and on states’ abuse of federal foreclosure aid; Susan Antilla on prison sentences for white-collar felons; Ezra Klein on the Republican-inspired tax increases in the Republican-inspired health-care law; Gordon Kerr on why devaluing the pound would be a form of default.

To contact the writer of this article: Michael Kinsley at mkinsley@bloomberg.net.

To contact the editor responsible for this article: Michael Newman at mnewman43@bloomberg.net.

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