What Dred Scott Has to Do With Citizens United (Nothing)

The Atlantic

Democratic Sen. Ed Markey mentioned Citizens United, the 2010 Supreme Court case allowing unlimited political ad spending, in the same breath as the Dred Scott decision, the 1858 Supreme Court keeping slavery legal by saying it was OK for white people to keep black people as their private property. Cue unthinking outrage!

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The National Republican Senatorial Committee is condemning Markey, issuing a press release that begins, "Agree or disagree with federal campaign finance law, it’s ridiculous and offensive to compare it to the horror of slavery." That's true, it is ridiculous and offensive to compare most of our modern political fights to the abolitionist and Civil Rights movement. Of course, people do it all the time. Like when the pro-lap dance community of Tampa invoked Rosa Parks to stop an anti-lap dance ordinance. Or when Paul Ryan said Roe v. Wade was "virtually identical" to Dred Scott. Or when Rick Santorum said President Obama should oppose abortion because he's black: "I find it almost remarkable for a black man to say, 'No, we're going to decide who are people and who are not people.'" These are moral equivelence arguments: the issues being advocated (i.e. considering fetuses as humans, the right to dance naked for strangers) carry the same issues as racism and slavery. It's stupid to make such comparisons.

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But Markey wasn't comparing super PACs to slave traders. (At least in this instance. Maybe he feels that way? He seems to really hate Citizens United.) He was making a procedural point. Because the Supreme Court ruled that the Constitution does not allow for campaign finance laws overturned in Citizens United, the only redress is to amend the Constitution. That's how our constitutional system works. The most famous example are the amendments made after Dred Scott, which ruled that the 5th Amendment property right protections protected slave owners rights to own slaves, which were considered property and not people. That was the law of the land until the 14th Amendment (which made all people born in the U.S. citizens) and the 13th Amendment (which abolished slavery outright) were adopted at the end of the Civil War. (You may have seen a recent movie about this.) 

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Markey and other proponents of campaign finance reform are facing a similar problem: the Supreme Court has ruled that the 1st Amendent rights to free speech protects the spending of money on behalf of electoral candidates. Since the Supreme Court, especially as constituted, is unlikely to change its mind, he would need to pass an amendment. "I want to go to the United States Senate in order to fight for a constitutional amendment to repeal Citizens United," Markey said to the Pittsfield, Massachusetts audience of 100. He then named some of liberals' favorite enemies, like Karl Rove and the Koch brothers, before explaining, "The constitution must be amended. The Dred Scott decision had to be repealed, we have to repeal Citizens United."

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As The Washington Post's Aaron Blake noted, if you want to read someone comparing Citizens United and Dred Scott  there's former Republican Rep. Jim Leach arguing in the Boston Globe last October:

Brazenly, in Citizens United, the court employed parallel logic to the syllogism embedded in the most repugnant ruling it ever made, the 1857 Dred Scott decision. To justify slavery, the court in Dred Scott defined a class of human beings as private property. To magnify corporate power a century and a half later, it defined a class of private property (corporations) as people. Ironies abound.

It is ironical. But our political press doesn't do well with irony.

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