The first step in the cure for our diseased state and national electoral systems is to elect Hillary and 50 senators of her party in November. Why? Though four members of the Supreme Court realized that it was a mistake to make elections a part of our economic market system, five voted otherwise. That fifth seat is empty with the death of Justice Scalia.
There is no question that a President Trump will fill the vacancy with a Supreme Court justice who will vote to maintain the dollar-based, corporate-powered, election system, just as there is no question that President Clinton will appoint a justice committed to reverse the Citizens United case that created it. Fifty senators are needed, ready to support her choice.
Alaska Dispatch News columnist Charles Wohlforth, among others, has called for a national constitutional amendment, an extremely difficult and, in this situation, a hopeless task. Constitutional amendment proposals must get through three-fourths of the state legislatures. How did these legislators get their jobs? Each won through expertise in the money game they are being asked to toss.
It would be great to see the Supreme Court reform itself, for example by adopting a practice of not overthrowing an act approved by the Congress and signed by the president without at least a seven-two vote; a justice could grumble but not vote to overturn. (How could Scalia have said that current Supreme Court review practices deprive the country of the title of "democracy" without showing some kind of restraint himself?)
Prominent conservative Anchorage attorney Mario Bird (ADN commentary, May 7) suggests that the Congress could, under Article III of the Constitution, restrict the court's jurisdiction to hear cases that control election funding, but, apart from the absurdity of congressional consideration of such a proposal, the Supreme Court reserves the right to consider whether a restriction on its jurisdiction is an infringement by the Congress on individual rights otherwise protected by the Constitution. "The supremacy of law demands that there shall be an opportunity for some court to decide whether an erroneous rule of law was applied ..." (St. Joseph Stock Yards Co. v. United States, 298 US, 84) (1936). The Supreme Court has the power under the Constitution to see whether congressional jurisdictional restraints on the court have the effect of limiting the Bill of Rights, rights such as free speech, for example, which are tied up with the election system.
The cures for the present problems, created by decisions drafted by justices with little or no experience with the political system supporting democracy, are simple and involve a staged response.
Step one in any reform system must be electing a president who will appoint a person known to be ready to reverse Citizens United and take a new perspective on the many cases involving restraints on money's role in democratic elections. That beats constitutional amendment for feasibility any day. If we are to restore some elements of real democracy for the American republic, there is no other option for a first step.
You think that's too political? Where do you think we have been since the court rushed to pick G.W. Bush as president, taking judicial power away from Florida courts charged with determining the validity of that state's challenged ballots?
As Wohlforth has pointed out, the real damage to the electoral system began much earlier in 1976 with Buckley v. Valeo, a case that allowed Buckley to spend all he wanted of his personal funds to get elected.
We all have political views. Is it appropriate that Buckleys, Trumps and others in the mega-millionaire and billionaire class like the Koch brothers have, systematically, vastly more to say about who gets to be a senator and what our laws shall be than anyone else?
The courts have long ago established a strong series of cases requiring "one person, one vote" in legislative apportionment cases, part of our "equal protection under the law." Maybe a newly constituted court will understand that the Congress or a state legislature may see that "one person, one vote" doesn't mean much if that vote is diminished by a flow of corporate contributions coming from within and out of the district, financing every candidate's campaign.
John Havelock is a former Alaska attorney general and White House Fellow. He lives in Anchorage.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com or click here to submit via any web browser.