Joe Ricketts’ super PAC dominated last week’s news cycle. The Ending Spending Action Fund (Ending Spending: Get it?) was considering a smear campaign proposed by Republican consultant Fred Davis, until its contents were leaked to the press and it failed to pass the gag-reflex test.
As it turned out, the Obama campaign probably benefited from a series of stories about a right-wing billionaire considering ads that would dredge up the president’s ties to Rev. Jeremiah Wright.
This week the super PACs are back.
Politico led with a page-one story suggesting that attacks by loose cannons like Ricketts could harm the candidates they are intended to support. The New York Times focused on Davis as a consultant who has moved from presidential campaigns to lucrative gigs crafting smear attacks for billionaires. Davis and other consultants have followed the money in post-Citizens United electoral politics.
The smart money (if that cliché has any value left after Jamie Dimon chewed it up and spit it out) has super PACs dominating the election. Which suggests a number of outcomes, most of them bad.
One example. If Barack Obama is defeated by the combined spending of Joe Ricketts, Sheldon Adelson, Karl Rove, et al., Democrats (on the street and in the Congress) will have good reason to consider the Romney presidency illegitimate. And to act accordingly.
The worst outcome, regardless of who prevails in the elections (super PACs will also decide Congressional races), is obvious. Elections now belong to the rich.
What can not be written, spoken, or shouted enough is that one individual is responsible for this: John Roberts.
The judicial nomineee who told the Senate Judiciary Committee he would faithfully adhere to precedent, and work to build consensus on the Court, was transformed when he took the oath and put on the robe.
Roberts, who comes across as nauseatingly sincere, lied to get the job. John Roberts is Antonin Scalia with good manners.
Remember how Roberts led the Court to his first big decision, the 5-4 Citizens United ruling that unleashed the super PACs. The court broadened a very narrow question the plaintiffs had raised, allowed a second round of arguments, then discarded 100 years of precedent.
That was two years ago. And Justice Roberts was just getting started.
This month the public gets the verdict on health-care reform. Under Roberts’ leadership, the Court took up every claim raised against the Affordable Care Act, scheduled an unprecedented six hours of oral argument, and tore into the legislation from the bench.
Next term, a University of Texas case will provide Roberts a shot at universities using race as an admission criterion.
Roberts has already staked out his position on race, concluding that attempts to integrate public schools are not only unnecessary, but in violation of the Equal Protection Clause in the U.S. Constitution.
The current chief justice was a law clerk for his predecessor, William Rehnquist, who argued that “equal protection” meant “colorblind.” Roberts applied that reasoning to a Seattle school district that was using modest measures to achieve racial balance on its campuses, declaring that the use of race as a factor in attempts to achieve racial balance violates the colorblind rule.
It’s also likely in the Court’s next session Roberts will have a run at the 1965 Voting Rights Act—one of the most significant and effective civil rights laws ever passed.
Roberts has already written that preclearence (the requirement that states with histories of racial discrimination submit changes in voting laws to the Justice Department or the D.C. District court for approval) is unnecessary. But he made that argument as an aside, in a ruling on a small municipal utility district in Texas.
A case that began in Shelby County, Alabama, which will probably end up on the docket next year, is a direct challenge to Section 5 of the Voting Rights Act.
And it is potentially huge.
If Roberts leads his three fellow conservatives on the Court (and Justice Kennedy) to overturn Section 5, Georgia, Mississippi, Alabama, Louisiana, South Carolina, Virginia, and North Carolina will be unfettered in rewriting election laws, and in redistricting.
Overturning Section 5 of the VRA would also be an act of contempt toward the other two co-equal branches.
In 2006, the House renewed the Voting Rights Act by a 309-33 vote; the Senate by 98-0. George W. Bush signed it into law in a ceremony on the White House lawn.
The importance of the impending decisions cannot be overstated, and is thoroughly discussed by David Gans in Jack Balkin’s Balkinization.
As a layman, and not a lawyer, I take issue with only one thing Gans writes. Or at least take it one step further.
The Roberts Court is not reshaping “basic, fundamental principles of constitutional law.” It is reshaping our society.
I followed a link in Gans’ blogpost to a book chapter he wrote, which was well worth the trip. Readers inclined to dig into smart and accessible legal writing will find one phrase in Gans’ longer piece sobering: [W]ith the addition of another conservative Justice or two, the Roberts court might…”