Progressives may have thought the victory of Scott Brown in Massachusetts earlier this week was bad news, but today's Supreme Court 5-4 ruling in Citizens United v. FEC may ultimately prove far more devastating.
That is because today, the Court's conservative majority re-wrote the Constitution to give corporations -- never mentioned in the Constitution -- the same right to influence the electoral process as 'We the People.' As the NYT's Adam Liptak explains, "Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court ... ruled that the government may not ban political spending by corporations in candidate elections." The justices did what many progressives feared for months it would do: hold that long-standing restrictions on corporate campaign spending violate the First Amendment.
The Court's ruling could transform our electoral politics. During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion. With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.
As overwhelmingly demonstrated by Justice John Paul Stevens' breathtaking dissent -- read aloud from the bench and joined by Justices Ginsburg, Breyer, and Sotomayor -- today's ruling is startlingly activist and plainly contrary to constitutional text and history. Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them. Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone. In a profoundly wrong interpretation of the First Amendment, the Court granted corporations the right to drown out the voices of individual Americans in our Nation's elections.
Americans must take away the right lesson from this devastating defeat. The law itself was not the problem here; the statutory and case law, and the Constitution itself, very much supported the opposite outcome. And while progressives should feel free to pursue creative ways in the wake of the decision to limit corporate efforts to influence electoral politics (boycotts, stockholder protests, etc.), we should not kid ourselves about an effective legislative fix, as Rick Hasen points out. The Court sweepingly rejected limits on corporate electioneering expenditures on constitutional grounds. The only ways to truly "fix" the Court's ruling in Citizens United are to change the Constitution to expressly permit restrictions on corporate campaign spending or fight a long-term battle over the future of the Supreme Court, eventually producing a ruling overturning today's profound error. Only the latter option is plausibly successful.
A progressive long-term strategy to put the Supreme Court back on track is particularly fitting, given that today's ruling is the result of a long-term conservative plan to change the Court to serve corporations' interests. As explained in this discussion draft of a forthcoming report entitled A Capitalist Joker: Corporations, Corporate Personhood and the Constitution, the roots of today's decision in Citizens United go back at least as far as a 1971 memorandum written by Lewis Powell to the Chamber of Commerce, urging the Chamber to focus on a "neglected opportunity in the courts," and noting that "the judiciary may be the most important instrument for social, economic and political change."
Justice Powell was nominated to the Supreme Court that same year and in 1976 he authored a 5-4 ruling in First National Bank of Boston v. Bellotti, an opinion which first introduced many of the ideas about the First Amendment seized upon by the majority today. His memo contributed to the rise of the conservative legal movement, a forty-year period in which conservative legal activists have fought tooth and nail to move the federal judiciary sharply to the right.
Progressives have seen the profound stakes in this battle before, most notably in the Court's ruling in Bush v. Gore. Like that ruling, Citizens United blows away any notion that conservative judges, who profess to be "originalists" and "umpires," are in fact faithful to our Constitution's text and history or bound by reasoned precedent.
Courts will end up deciding whether just about every part of the progressive agenda stands or falls. Progressives need to demand, louder than we are now, judges who will follow our Constitution's text and history and honor the Constitution's progressive promise for '"We the People." Sadly, today we have a startling new reminder of just how much this fight matters.
Follow Doug Kendall on Twitter: www.twitter.com/myconstitution
Eric Lotke: It's Official: Corporations Rule.
The five justices who wrote the opinion displayed gross incompetence on the bench. That is, the threat of foreign money pouring in through corporate shells to swing elections was raised during arguments. The threat was discussed in the dissent. The majority opinion, however, opened up the floodgates, yet gave zero guidance to Congress about what kind of law might be pass constitutional muster and still protect the integrity of American elections, American democracy, and American sovereignty.
Threatening the integrity of American democracy while not noticing the risks explicitly pointed out, and leaving no clear guidance to Congress in dealing with the crisis so created-- this is either gross incompetence on the bench or treason. Impeachment of the five would be more merciful, though some might prefer a sentence of execution.
No need to amend the Constitution. Grounds for impeachment of the five are staring us in the face. It is time for the House of Representatives to impeach the five.
http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform
Campaign Finance reform was designed with one major intention: preserve the two party system by raising barriers to entry for third parties.
But here's the thing: if a corporation uses it's money to espouse one political point of view or another without the explicit consideration and approval of it's shareholders, then doesn't this new interpretation of the law amount to an unconstitutional suppression of *those* individuals freedom of speech as a part of that corporation? The *are* the corporation, after all.
I remember watching the Clarence Thomas hearings. This man should never have been approved.
"In what is perhaps the most infamous case in its history, the court decided that all people of African ancestry -- slaves as well as those who were free -- could never become citizens of the United States and therefore could not sue in federal court. The court also ruled that the federal government did not have the power to prohibit slavery in its territories. Scott, needless to say, remained a slave. "
I guess we should see this as progress.
No other remedy will work: legislatures are too weak, and now will be even more corrupt; new justices wont help in time to change this opinion; costitutional amendment, surely you jest!
If this country was a farce until now, welcome to the new freak show!
"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification. "
What sex are corporations?
We only need three states to ratify. If Carter, Clinton and Obama's states had ratified it, it would be law today.
I would like to propose that only voters, registered to vote in the election can contribute to effect the election, That means that I could as a registered voter in the 2nd Congressional District could contribute could contribute to the candidates for that district, the Ohio Senatorial elections and the Presidential elections. No non voters, corporations, labor unions, PAC's, and no voters from outside the district. Make it a local election. I think a law such as this could pass the constitutional muster.
I liked the idea of one of the other bloggers on HP, to ban all commercial television campaign ads. But I think it would have to go one step further and bring back the part of the fairness act that made networks give equal time to both sides.
As far as not contributing to campaigns outside my area, I do it because the representatives outside my area have a great deal of effect on my life.