Refusing to give his Republican opponents an edge, President Obama has just blessed a Super PAC to rally his own billionaires for election year combat. While it's only natural for him to maintain parity, the president should also call upon Congress to pass a statute that forces the Supreme Court to reconsider its extreme position in Citizens United.
It's a mistake to treat Justice Kennedy's opinion for the Court as written in stone. To the contrary, Kennedy explicitly says that it "surely" would be a "cause for concern" if "elected officials succumb to improper influences from independent expenditures." He simply found that Congress hadn't established that improper influence was a real problem, and even suggested that he would give "due deference" to such a finding.
The president should call on the House and Senate to take up Kennedy's invitation. Congress no longer needs to speculate on how "independent" Super PACs, controlled by each candidate's loyalists, might degrade our politics. The latest figures already show Super PACs allied with Republican presidential candidates have collected $70 million -- almost half the $155 million the candidates have collected on their own. In the cases of Newt Gingrich and Rick Santorum, the "independent" Super-PAC is the dominant financial player. If Mitt Romney fails to win a clear majority by the time he gets to Tampa, the financial backers of these minority candidates will have real weight in defining the deal that puts Romney over the top. With Obama joining the fray, Super PACs will be playing a very large role in the general election as well.
While this is inevitable, the president should call for a statute that urges the Supreme Court to make this the last election that lurches toward plutocracy. Congress should pass a law that puts the Court on notice of emerging realities. After formally finding the facts, the statute should grant the Attorney General standing to urge the judiciary to issue a declaratory judgment repudiating Citizens United in the light of changed conditions.
Congress has used this strategy before. Section Ten of the Voting Rights Act of 1965 took aim at the Breedlove case, in which the Supreme Court had squarely upheld the poll tax in federal elections. Section Ten responded by finding, after lengthy hearings, that the tax "imposes unreasonable financial hardship" and "precludes persons of limited means from voting." It then directed the Attorney General to urge the Justices to overrule Breedlove in the light of its factual findings. On signing the act, President Johnson followed through, announcing that "tomorrow at 1 p.m., the Attorney General has been directed to file a lawsuit challenging the constitutionality of the poll tax."
The strategy proved remarkably successful. While lower courts generally treat Supreme Court precedent as binding, the Justice Department used the Congressional findings to convince the courts of appeal to ignore Breedlove and declare the poll tax unconstitutional. The Supreme Court then dealt the final blow by declaring all poll-taxes unconstitutional in its landmark decision of Harper v. Board of Elections. The Court announced its decision just as the Section ten cases were reaching its docket. But its great turnaround cannot be understood without recognizing the role of Congress and the president in shifting the terms of the constitutional debate. (See the detailed study by Bruce Ackerman and Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. Rev 63 (2009).)
Congress should take the same path today. Perhaps the five judge majority in Citizens United will be unimpressed by Congress' statement of real-world facts, and its assessment of the dangers of pervasive corruption that lie ahead.
But perhaps not. It is very likely that Justice Kennedy simply didn't predict the revolutionary implications of his decision. While constitutional revolutionaries like Clarence Thomas or Antonin Scalia might dismiss Congressional findings, Justice Kennedy is of a Burkean disposition -- attentive to the facts, and reluctant to endorse radical change. If given the opportunity, he may well lead the Court to rethink Citizen's United basic premises.
It is in nobody's interest to see the Court's legitimacy damaged as Super PACs increasingly erode Americans' fundamental commitment to democracy. The Court should be given a second-chance to engage in a collaborative effort with the president and Congress to define the meaning of free speech after confronting the hard truths of American politics.
Bruce Ackerman and Ian Ayres are professors of law at Yale, and the authors of Voting with Dollars: A New Paradigm for Campaign Reform.
Robert Scheer: Elections Are for Suckers
MJ Rosenberg: The Middle East and Citizens United
Eunice Hyon Min Rho: The Conspiracy to Expand Democracy
Tim Suttle: Christians For Colbert: Why We Should Unite for This Election
Corporations are not people,
Money isn't speech, and
Campaign contributions are bribes.
Impeach the Roberts five.
Any questions?
"Corporations are not people":
Nobody said they were; certainly not the Supreme Court. But even though they’re not people, they get some protections, and that didn't originate with Citizens United. If corporations had no rights at all, a Republican Congress could make it illegal for HuffPo to publish articles criticizing the GOP. Sound good to you?
“Money isn't speech”:
Nobody said it was, certainly not the Court in Citizens United. Money is money. But it facilitates expression — just like a "pride flag" is a flag, not speech, but still a mode of expression. Could Congress making illegal to display a pride flag? Or BUY a pride flag? “Money isn't speech,” so why not?
"Campaign contributions are bribes":
Not always, but the Citizens United case ACKNOWLEDGED that contributions CAN be bribes, which is why it said Congress CAN regulate them. Citizens United didn’t change any law on CONTRIBUTING TO candidates; it said Congress can't prohibit groups from INDEPENDENTLY SPENDING money to SPEAK ABOUT candidates. Citizens United itself was a nonprofit that wanted to air a TV documentary criticizing Hillary Clinton. Congress made that illegal. And the Court said that such censorship is unconstitutional; just because it was a corporation didn’t make it okay. Who exactly was the documentary bribing?
Why don't you tell me what the phrase "Congress shall make no law" means to you.
COMMON SENSE says, that the court has affirmed that bribery is the law of the land. Tea Partier or Tree Hugger, we are all in the same boat with this issue.
Public financing of all political campaigns is the only method by which we can enjoy representative democracy. Vote them all out or we all go to Washington and "ask" them to resign.
Politicians must work for votes not, dollars.People only work for those who pay them.You only get what you pay for. Quid pro quo.
REAL Americans are public servants not, Bribe Soliciters.
I agree with the author's points, but I think the Obama administration should consider the path that Johnson took as well. Now, I know that there are some who think that BO should not use the tp/gop-friendly Citizens United ruling against them, and I would prefer he did not as well. But things being what they are...... I think that in order to change the rules of the game one needs to stay in the game, and if a super-PAC does that for Obama, so be it.
Again, I'd like to see the President take a cue from Johnson on this and force the SCOTUS to clarify or overturn the CU decision.
...the President doesn't have the will to do this, if he did he would have done it already, the current Congress has no interest in over-turning the Citizens United ruling, the current Supreme Court definitely have no interest in over-turning the Citizens United ruling...all of these people are bought and paid for...If we want our votes to mean anything ALL private money needs to be removed from the electoral process, to do this will probably take civil unrest, massive public demonstrations leading to a constitutional amendment...
(corporations are not people, they're contracts)
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The Court and this Congress have displayed their support of the addicition to cash of Federal officeholders, to maintain their elected positions. By acquiescing to that majority, the Obama campaign and the President have demonstrated the same, and more disturbingly that they will not use the power of the POTUS to join the fight on behalf of the People, the Electorate itself!
Sadly, the People have NO advocate in power who, beyond feint lipservice, has expressed adequate disdain for the catastrophe "Citizens" has caused to do anything whatever to stop this! Actual Citizens will need to take up the fight directly, and remove those politicians who are addicts to Corporate Cash.
The notion that the justices or pols we see before us now will fix this disaster, is naive in the extreme.
This fundemental assumption is quite simply wrong.
It is in the interest of the super wealthy to see the legitimacy of the Supreme Court damaged if it means that they can buy government to protect them from democracy. This of course is precisely what is happening, which also provides the proof that your assumption is wrong.
Read Abrams' analysis for clarification -- its all over the internet this week. And don't worry, you can read it without feeling dirty...
Abrams is a good Liberal...he's just honest about what this ruling really was.