Is Supreme Court Chief Justice John Roberts a man of principle or a conniving cynic who lied to the Congress?
When he was campaigning to win confirmation as the nation's top jurist, Roberts pledged to respect judicial precedents and to avoid legislating from the bench. Now that pledge to the Senate and the American people is bring put to the test.
Roberts' credibility is at stake as the court considers the matter of Citizens United v. Federal Election Commission.
Citizens United is the shadowy group established by conservatives who were determined to prevent Hillary Clinton from being elected president in 2008. The organization, technically operated as a nonprofit, used corporate money to produce a film that smeared Clinton.
The FEC ruled that airing the film would violate federal laws that regulate the use of corporate money to influence elections. Citizens United sued and the case has become an essential test of whether any constraints can be placed on corporations that seek to pay for electioneering that favors their business interests. And the Roberts-led court has just finished a rare second round of oral arguments on the matter.
Clean government advocates are worried.
"In the wake of watching the economy crash, in part because Congress was loathe to regulate some of its best donors, the thought of rolling back 100 years of modest limits on corporate giving is deeply troubling and would further drown out the voice of the public," says Common Cause President Bob Edgar.
Edgar is, of course, correct. Corporations, especially multinational corporations that use U.S. tax dollars to shutter factories in this country and move production overseas, already define our politics and policymaking at levels that threaten democracy.
So why is this case even being considered?
Free speech is not the issue. The courts, with majorities made up of liberals and conservatives, have ruled again and again that it is permissible to control electioneering and influence-buying by corporations. Indeed, the U.S. Supreme Court so ruled just six years ago.
So, again, why is this case even being considered?
Because Chief Justice Roberts has been pressing the matter. Veteran court-watchers suggest that Roberts is determined to upset existing campaign finance laws and to erect barriers to new controls on influence buying.
Indeed, there is some speculation that the chief justice might cast a deciding vote to do just that. If he does, he will confirm the cruelest criticisms of those who suggested that this uninspired jurist -- who struggled with the simple task of administering the president's oath of office -- is more a judicial activist than a faithful defender of the Constitution.
The two senators whose names are most closely associated with the fight to prevent the manipulation of election campaigns by special-interest groups -- Wisconsin Democrat Russ Feingold and Arizona Republican John McCain -- summed things up with a brief statement issued Wednesday, when the oral arguments were concluded:
"It is important to note that the case reargued today does not affect the core of the McCain-Feingold campaign finance law -- the ban on large, unregulated donations to the political parties by corporations, unions and wealthy individuals. Nonetheless, at stake in this case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are called into question. Overturning the Austin decision would open the floodgates to unlimited corporate spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, like a Fortune 500 company, are much more likely to be heard during an election than average American voters.
"It was just six years ago that the Supreme Court upheld the electioneering communications provision in McCain-Feingold and nothing has happened in that time to warrant the drastic step of overruling that decision. During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy."
"Completely contradict that promise" is a polite, senatorial way of saying the truth.
If Roberts sides with the corporations, as his critics said he would, then he lied to the Senate in order to secure a position from which to assault the rule of law as the most cynical of judicial activists.
John Nichols is the associate editor of The Capital Times.