Your Honor, the Supreme Court as early as Oct. 5 could decide the fate of the McCain-Feingold campaign-finance law with a decision that could shake the foundation of the politics of our republic.
The feeling throughout the nation, from the overwhelming majority of our people, is that their voices are not heard by the powers that govern in Washington. There is profound cynicism toward government from Americans of diverse points of view who believe their voices are drowned out by those with the money and power they lack.
Average Americans find their First Amendment rights devalued or destroyed by the overpowering megaphone of narrow and lavishly financed factional interests that Madison warned about in Federalist No. 10, when he commended the Constitution to the people of the country.
Let us assume arguendo that corporations have substantial rights to a First Amendment megaphone. But what is the proper balance when corporate political activity aggressively invades or destroys these rights of the multitudes of individuals the Founding Fathers sought to protect, as Madison explained in Federalist 10, to those who approved the Constitution, who agreed with Madison about the dangers of factions overriding the interests of the citizenry and the nation as a whole?
Americans feel like an Oliver Wendell Holmes citizen, correctly shouting fire in an empty theater, because for them, no matter how loudly they shout, the theater is empty, overwhelmed by the organized power of factions.
Justice Kennedy asked in oral argument about the need for corporations to provide their expertise. Fair enough, but corporations have enormous power to offer their expertise through campaign donations, lobbying and vast forms of paid media allowed under McCain-Feingold.
If McCain-Feingold is eviscerated by the court, those corporations would further make Madison’s worry come true through massive spending in the closing hours of campaigns. This would distort our elections and create new power to threaten or reward elected officials during lobbying. This would further magnify the power of factions and further drown out the rights of individuals.
Your Honor, any McCain-Feingold decision will be a political decision, in extremis. I would urge profound caution.
Overturning existing precedent, as the court is considering, should only occur under very limited circumstances with high confidence and certainty. This decision could wreak political havoc, in a divided nation facing crises during an election year, with a civic discourse that has degenerated enough because of the dominating power of factions.
This would be judicial activism in a political case fraught with peril.
Second, in a political decision involving elections, the views of elected officials should not be completely decisive but should be highly respected. McCain-Feingold was enacted with bipartisan sponsorship and approval of elected officials in the legislative and executive branches.
Your Honor, with great respect, my impression of oral argument is that some justices are not politically aware of the extreme, disruptive, chaotic and divisive impact that overturning precedent on McCain-Feingold would create. Please, be prudent.
Budowsky was an aide to former Sen. Lloyd Bentsen and Bill Alexander, then chief deputy majority whip of the House. He holds an LL.M. degree in international financial law from the London School of Economics. He can be read on The Hill’s Pundits Blog and reached at firstname.lastname@example.org.