Thursday, April 24, 2014

How We Think

I've been thinking again about how we think. About the reasoning processes that produce such paradoxes. About how two of us, with good minds and good educations, can look at a situation, especially one involving our dearest principles, and come to such different conclusions.

Corrupt Legislation (1896) by Elihu Vedder.
Library of Congress
, Washington, D.C.
What got me started this time was Chief Justice John Roberts. Specifically his majority opinion in McCutcheon v. FEC, which opens the door for individual donors to contribute to as many politicians as they wish. The other big campaign finance case during Roberts' tenure, Citizens United, permitted corporations and PACs to spend as much as they wanted on political campaigns. Taken together, McCutcheon and Citizens United all but eliminate limits on political contributions and spending.

I doubt anyone thinks private financing of politicians doesn't influence legislation. There's even a century-old mural depicting legislative corruption in the main reading room of the Thomas Jefferson Building of the Library of Congress. So why, when Congress finally worked up the courage to try to wean itself from its money addiction, did the Supreme Court decide to weigh in on the side of deep-pocketed donors? What kind of thinking got them there?

Before Roberts' tenure, the Court thought it so obvious that money corrupts politicians that it welcomed most campaign finance reform. It routinely acknowledged the risks to democracy from "politicians too compliant with the wishes of large contributors." Money--in the form of PACs, businessmen with political agendas, rich ideologues, anyone who wanted his representative to be especially grateful for his financial help--kept up the pressure, though: We're just exercising our First Amendment freedoms. You can't take those away from us. That would be un-American. Un-democratic.

And money found a sympathetic audience in the Roberts Court. The legal reasoning goes like this:

Free speech is essential to democracy and must not be limited except under the most compelling circumstances of potential harm to the public (think, shouting fire in a crowded theatre);

Money is speech;

Therefore, political contributions and spending must not be limited except in the most compelling circumstances, which the Roberts Court found to exist only in cases of outright bribery ("quid quo pro corruption," as the Court calls it).

Chains of logic like this are called syllogisms. Syllogisms are beguilingly persuasive, which is why lawyers like them. One logical step leads painlessly to the next. If you're not careful, though, they can take you to strange places. You're out for a walk on a sunny afternoon, following the path of logic, daydreaming absently, and you look up and find yourself lost. When logic leads you somewhere that is at odds with common sense, it's called "reductio ad absurdum." I used to be so good at it that my favorite professor in law school regularly noted my talent to my classmates. I don't think he meant it as a compliment.

No matter the intellectual seductiveness of the Roberts Court's logic, I think we all sense--indeed, feel pretty confident--that we'd be better off if no one could buy political influence. If a politician has to listen to you because of the way you spend your money for or against him or his positions, you are buying influence. It would be better if currency of political influence was ideas, not lucre.

The irony of the McCutcheon and Citizen United decisions--the reductio ad absurdum--is that the Roberts Court has used an essential theoretical building block of our democracy, the First Amendment, to erect a practical barrier to the operation of that same democracy. On paper the votes of individual citizens will still matter, but the real power to influence those votes, and to anoint the politicians from whom voters must choose, will flow to those with money.
I'm not the first to be dismayed by the decisions. Linda Greenhouse, who writes about the Supreme Court for The New York Times, wrote recently, "Maybe somewhere in the country there is someone sufficiently out of touch with political reality to be open to the chief justice’s persuasion." David Brooks, the Times' thoughtful conservative columnist, gamely tried to make the best of it by saying McCutcheon would strengthen the influence of the political parties, which would serve as a salutary counterweight to ideological big spenders like the the Koch brothers.

The McCutcheon and Citizens United decisions seem so at odds with the ideals of our democracy that what fascinates me is this: Why did Roberts, who is not stupid, decide this way? Maybe, like David Brooks, he's a fan of Edmund Burke, the eighteenth-century political and social philosopher considered by many to be the father of modern conservatism. Maybe, like Burke, Roberts is fundamentally uncomfortable with democracy. Burke didn't trust the masses. He thought the natural order of things was for men with land to govern. Men with money.

Not since the Warren Court of the 1950s has the Supreme Court as actively re-written our social compact. The difference, of course, is that the Warren Court was protecting the little guy, whereas the Roberts Court has made it its mission is to protect the big guy. It's frankly hard to understand why. Except in a revolution, money doesn't need protecting.

The men on the Court who are with Roberts on this (and it's all men) are not rich. They can't be bribed, so supporting monied interests cannot benefit them personally. And despite my idle musings that Roberts might be a closet Burkean, it seems unlikely that he or his colleagues truly mean to subvert our democracy. This leaves me thinking they must have fallen for their own sophistry. Seduced by the arrogant beauty of their pinched logic, they’ve strolled heedlessly along its path into the political theme park where they, and thanks to them, the rest of us, now find ourselves. A place where the rides are glitzy and slick barkers grin and say come on in, but where there are no other attractions to choose from, only the ones money built.

It's enough to make me wish my old law professor had encouraged me to take a judicial clerkship. If I had held onto my youthful skill at laying out a logical path to an absurd result, I would have been an outstanding candidate for Chief Justice of the United States.

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