Colbert v. The Supreme Court

By Dahlia Lithwick, Slate

04 February 12

he Supreme Court has always had its critics.  Chief Justice John Marshall had to contend with the temper of President Andrew Jackson ("John Marshall has made his decision, now let him enforce it!"). And Chief Justice Charles Evans Hughes went toe-to-toe with FDR, who wouldn't let up with the court-packing. But in the history of the Supreme Court, nothing has ever prepared the justices for the public opinion wrecking ball that is Stephen Colbert. The comedian/presidential candidate/super PAC founder has probably done more to undermine public confidence in the court's 2010 Citizens United opinion than anyone, including the dissenters. In this contest, the high court is supremely outmatched.

Citizens United, with an assist from a 1976 decision Buckley v. Valeo, has led to the farce of unlimited corporate election spending, "uncoordinated" super PACs that coordinate with candidates, and a noxious round of attack ads, all of which is protected in the name of free speech. Colbert has been educating Americans about the resulting insanity for months now. His broadside against the court raises important questions about satire and the court, about protecting the dignity of the institution, and the role of modern media in public discourse. Also: The fight between Colbert and the court is so full of ironies, it can make your molars hurt.

When President Obama criticized Citizens United two years ago in his State of the Union address, at least three justices came back at him with pitchforks and shovels. In the end, most court watchers scored it a draw. But when a comedian with a huge national platform started ridiculing the court last summer, the stakes changed completely. This is no pointy-headed deconstruction unspooling on the legal blogs. Colbert has spent the past few months making every part of Justice Anthony Kennedy's majority opinion in Citizen United look utterly ridiculous. And the court, which has no access to cameras (by its own choosing), no press arm, and no discernible comedic powers, has had to stand by and take it on the chin.

It all started when Colbert announced that, as permitted by Citizens United, he planned to form a super PAC ("Making a better tomorrow, tomorrow"). As he explained to his viewers, his hope was that "Colbert Nation could have a voice, in the form of my voice, shouted through a megaphone made of cash ... the American dream. And that dream is simple. That anyone, no matter who they are, if they are determined, if they are willing to work hard enough, someday they could grow up to create a legal entity which could then receive unlimited corporate funds, which could be used to influence our elections."

Then last June, like a winking, eyebrow-wagging Mr. Smith, Colbert went to Washington and testified before the FEC, which granted him permission to launch his super PAC (over the objections of his parent company Viacom) and accept unlimited contributions from his fans so he might sway elections. (He tweeted before his FEC appearance that PAC stands for "Plastic And/Or Cash.") In recent weeks, Colbert has run several truly insane attack ads (including one accusing Mitt Romney of being a serial killer). Then, with perfect comedic pitch, Colbert handed off control of his super PAC to Jon Stewart (lampooning the FEC rules about coordination between "independent PACS" and candidates with a one-page legal document and a Vulcan mind meld). Colbert then managed to throw his support to non-candidate Herman Cain in the South Carolina primary, placing higher on the ballot than Rick Perry, Jon Huntsman, and Michele Bachmann.

The line between entertainment and the court blurred even further late last month when Colbert had former Justice John Paul Stevens on his show to discuss his dissent in Citizens United. When a 91-year-old former justice is patiently explaining to a comedian that corporations are not people, it's clear that everything about the majority opinion has been reduced to a punch line.

Colbert took the mainstream by storm in interview after interview that schooled Americans about the insanity of Citizens United and garnered blowback from NBC White House correspondent Chuck Todd, who complained that Colbert is "making a mockery of the system" and questioned whether the real agenda was to "educate the public about the dangers of money and politics ... or simply to marginalize the Republican Party?" Then came the un-ironic defenses of the irony of Colbert and the obligatory navel-gazing about whether Colbert is in fact effecting real change or in peril of succumbing to "irony fatigue."

At one level, this is all just comedy, and it's hard to measure whether Colbert's sustained attacks on the court's campaign finance decisions are having any real impact, beyond making us laugh. On the other hand, when the New York Times declares that Colbert's project is deadly serious, and it's just the rest of politics that's preposterous, something more than just theater is happening. I spoke to Trevor Potter, former chairman of the FEC and adviser to John McCain, and the man Colbert has designated his "personal lawyer," about the consequences of Colbert's assault on the campaign finance regime. Potter is very careful not to ascribe an end game to Colbert's efforts but says that he has seen Colbert's campaign finance crusade as an "opportunity to open up to the rest of the world what we lawyers already know: that the whole area of campaign finance is a mess." He adds that Colbert's antics are "having a real effect in terms of public understanding about how the system works" and getting people to start to think about how to fix it.

Potter is also emphatic that the Supreme Court's Citizens United decision is not the sole cause of the problems he sees. (You can thank the media for its bang-up job of suggesting that the court singlehandedly designed super PACs with its decision in CU). Potter says Kennedy's majority opinion is not so much disconnected from reality but, rather, "assumed that the world would work in the way he thought it would." (In Kennedy's fantasy, there would be no chance of corruption, no coordination between PACs and candidates, and full disclosure of corporate contributions.) And had the FEC done its job, had Congress passed better disclosure rules, had shareholders been better able to control corporate activity, the Kennedy decision would have been less monumental. (Potter is quick to point out that the court needn't reverse itself completely for the country to fix the worst problems in the post-CU system.) Still he adds that Citizens United "epitomizes the problem of having a court where no justice has ever run for any office, including dogcatcher."

Of course that's precisely the problem: The institutional aloofness that allowed the Roberts court to pen such a politically naive decision is the same blind spot that precludes them from even understanding, much less responding to, the media criticism. And as professor Lyrissa Lidsky, who teaches law at the University of Florida College of Law, reminded me last weekend, there is amazing language in Justice Kennedy's majority in Citizens United about the need to elevate corporate speech to the same protected status as that enjoyed by the cable news shows. As Kennedy observed, "Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views."

In other words, (if you can stand the irony) in Citizens United, the Supreme Court empowered Colbert to create a super PAC so he could answer back to, well, folks like Stephen Colbert. The opinion even notes that "Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force." Now, courtesy of Mr. Colbert, no one knows that better than the court itself.

The Founders' True Foresight

By Robert Parry, Consortium News

02 February 12

fter the Constitutional Convention in 1787, Benjamin Franklin, its oldest and possibly most renowned delegate, recommended that the new American political framework could be a model for Europe, suggesting "a Federal Union and one grand republic of all its different states and kingdoms, by means of a like Convention."

Of course, Franklin’s suggestion fell on deaf ears in Europe where nation states already had long histories of deep-seated grievances against one another. Forming an enduring union proved hard enough for the 13 American states with their much shallower differences.

Benjamin Franklin's banner urging the American colonies/states to unite against Great Britain

Ignoring Franklin’s advice, Europe remained sharply divided and those rivalries threw the world into periodic fits of bloody chaos. Two powerful dictators – Napoleon and Hitler – would try and fail to unify the Continent by force. It would not be until the last half of the 20^th Century when a loose federation of democratic European states would take shape as the European Union.

However, the current European financial crisis highlights the shortcomings of the EU, particularly how the European nations retain much of their old sovereignty and keep control over key policies, particularly their budgets making it difficult to coordinate fiscal strategies behind a common currency, the euro.

Indeed, today’s European Union resembles more the ineffectual Articles of Confederation, which governed the United States from 1777 to 1787, than the U.S. Constitution with its strong central government. The Confederation’s Article II declared that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated."

The United States wasn’t really even a government or a nation then. It was called "a firm league of friendship" among the states. General George Washington was particularly contemptuous of this concept of "state sovereignty" because he had watched his soldiers freeze and starve when the states reneged on promised contributions to the Continental Army.

So, with George Washington in the lead and fellow Virginian James Madison serving as architect, some of America’s most distinguished citizens, including Franklin, met in secret in Philadelphia to devise a governing framework that eliminated the independence of the states and subsumed their sovereignty into a binding Union.

The new American system concentrated the key national powers, from currency to defense to commerce, in the central government (though leaving more local matters to the states and municipalities). The framers wanted a vibrant central government that could tackle the present and future needs of a vast nation – and that is what they achieved.

Despite some moral compromises like tolerating slavery – and despite decades of struggle against forces that objected to the dominant power of the federal government – the Constitution has worked pretty much as the Founders intended. It has proved, by and large, to be a flexible governing arrangement that enabled the United States to adapt to changes and to emerge as the world’s leading nation.

Tea Party ‘History’

However, even today, influential political movements, such as the Tea Party and much of the Republican Party, continue to attack what has been the most effective feature of the Constitution, its potential for providing national solutions to national problems.

Earlier political attacks on the Constitution were more frontal – such as the Nullificationists in the 1830s and the secessionists of the Confederacy in the early 1860s – essentially reasserting the states’ independence that had been lost in the drafting and ratification of the Constitution.

Today’s assault is more modern, based on a combination of widespread ignorance about American history and disinformation spread through a pervasive propaganda network. Rather than defying the Constitution, today’s nullificationists simply revise the history to their liking under the guise of divining the Founders’ "originalist" intent.

It has become a touchstone of the American Right that the Founders wanted a weak central government and were big-time advocates of states’ rights. Tea Partiers also dress up in Revolutionary War costumes and pretend that the enemy of that time must have been Philadelphia, not London. They seem to think that their coiled-snake "Don’t Tread on Me" flag was aimed at fellow Americans, not the British.

In the real history, the banner that addressed the American colonists was one devised by Franklin showing a snake cut into pieces, representing the colonies/states with the warning, "Join, or Die."

If Tea Partiers directed their snake venom at the creators of a strong American nation-state back then – the targets would be the likes of Washington, Madison and Franklin. But today’s right-wingers simply ignore the historical fact that Madison inserted the crucial Commerce Clause quite deliberately into the Constitution because he felt a national strategy on commerce was vital if the United States was to fend off predatory European competition.

And, the whole point of giving the U.S. central government control over interstate commerce was so the country could implement national solutions to national problems. That was why even a conservative U.S. Appeals Court judge, Laurence Silberman, ruled recently that the Affordable Care Act (Obamacare) was constitutional, because he recognized that Congress has broad powers to devise responses to challenges that impact the nation’s commerce.

Citing the intent of the Founders and longstanding legal precedents, Silberman concluded that the law – even its requirement for individuals to obtain health insurance – fits within the Constitution (though it’s still very possible that the Republican partisans on the U.S. Supreme Court will reverse Silberman’s ruling to deal President Barack Obama a political body blow right before the election.)

False Narrative

After all, the Right has spent years now building up its false founding narrative with the same kind of determination and resources that it has invested in many other false narratives. For that reason, many more people know the Right’s argument that the Tenth Amendment is determinative on state’s rights than understand that it was more a case of closing the barn door after the horse was gone.

The Tenth Amendment to the Constitution states, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." But the Right’s historical revisionists miss the key point here.

The Constitution already had granted broad powers to the federal government – including regulation of national commerce – so there were far fewer powers left for the states. The Tenth Amendment amounted to a minor concession to mollify the anti-federalist bloc that unsuccessfully sought to block ratification of the Constitution by the 13 states.

To further appreciate how modest the Tenth Amendment concession was, you also must compare its wording with Article II of the Confederation, which is what it essentially replaced. Remember, Article II says "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated."

All that language is either eliminated in the Constitution or substantially watered down. In effect, the power relationship between the federal government and the states was reversed by the Founders who convened in Philadelphia in 1787.

The Tea Party’s misguided "history" of the Founding is also reflected in how little some of the Right’s champions know about real Revolutionary War history. For instance, Texas Gov. Rick Perry told some voters that the Revolution was fought in the 1500s, a couple of centuries off, while Rep. Michele Bachmann claimed the opening shots of the Revolution were fired in New Hampshire, rather than Massachusetts.

But the current irony of the Right’s revisionist history on the Constitution is that it comes at a time when the financial crisis in Europe – and its inability to adopt a comprehensive regional solution – underscores the wisdom of America’s Founders to create a strong national government.

The Right’s neo-Confederate assault on the Constitution also comes at a time when innovative national solutions are desperately needed for the American people, both to respond to the economic recession caused by the Wall Street crash of 2008 and to address long-term problems that threaten the welfare of the nation, from the health-care crisis to a decaying infrastructure to cataclysmic climate change.

To take on these pressing national challenges through unified national action would be precisely what George Washington, Benjamin Franklin and James Madison had in mind.

For more on related topics, see Robert Parry's "Lost History," "Secrecy & Privilege" and "Neck Deep," now available in a three-book set for the discount price of only $29. For details, click here.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, "Neck Deep: The Disastrous Presidency of George W. Bush," was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, "Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq" and "Lost History: Contras, Cocaine, the Press & 'Project Truth'" are also available there.