Happy Birthday, Citizens United v. Federal Election Commission!
You're one year old today, big boy. But just think of all the fine things you've done already:
- Simply by being polite and treating corporations like other people, you wrecked the McCain-Feingold legislation.
- You made it possible for outside groups and big businesses to spend almost $300 million for their favorite candidates in the 2010 congressional elections, driving total campaign costs up over $4 billion.
- At a delicate moment for "corporate Americans," you put them right back in the driver's seat. After the multi-trillion dollar sub-prime mortgage meltdown on Wall Street, the BP oil spill in the Gulf of Mexico, and Massey Coal's lethal mine collapse in West Virginia, Americans were asking kind of tough questions about whether unregulated corporate power is serving the common good. You gave corporations the political edge they needed not just to survive but to rule!
- Best of all, as a Supreme Court decision, you not only bulldozed major precedents and performed awesome doctrinal pirouettes, but you did it with a 5-4 vote. Like your doting big brother, Bush v. Gore, who was also conceived by "Justices United"--five Justices named by presidents of only one political party--you are rewriting the rules of American politics on a completely partisan basis. (Bush v. Gore decided the winner in only one election and promised he would dare not get involved in others You've already changed the rules in all of them--and you can't even vote yet, kiddo!)
But I don't want to make it seem like your life has been perfect, Citizens. You've taken some hard knocks for an infant Supreme Court decision.
At his State of the Union Address last year, the president called you out in front of the whole Congress and country, saying you had opened "the floodgates for special interests -- including foreign companies -- to spend without limit in our elections." You weren't even a month old!
Thank God Justice Alito was there to stand up for you.
But, still, you were rejected from the start by 80% of the American people, who think treating corporation like rights-bearing citizens of the democracy is ridiculous. Real citizens do seem to be united -- against you. As Justice Stevens wrote in his dissenting opinion, your existence is "a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt."
But now is no time to despair, Citizens.
Now is the time to look forward to placing your next mark on the world. Oh, the places you'll go, Citizens United!
What will be next?
- Do you want to wipe out the ban on federal corporate contributions that has been in place since 1907? This should be a piece of cake. If a corporation is like any other group of citizens organized to participate in politics for the purpose of expenditures, why not contributions too?
- Do you want to eliminate restrictions on political campaigning and endorsements from the pulpit by ministers and other clerics in houses of worship?
Right now, the prohibition on campaigning by 501c(3) groups is justified only by virtue of their tax exemption. By taking a special tax-free status, nonprofit groups including churches agree to follow clear rules about political involvement
But you made this justification obsolete when you ruled that corporations could not be kept out of politics simply because they enjoy important benefits from the government like perpetual life, limited liability for shareholders, and preferred tax treatment and public subsidies.
You found that for-profit and not-for-profit corporations should be treated alike for political purposes. And neither for-profit nor non-profit corporations can be kept from spending in elections just because we subsidize them.
Lord knows there are a huge number of ministers already actively violating the ban in hopes of becoming the great next case testing how far Justice Kennedy is willing to take you.
Perhaps you want to move in another direction and establish the right of municipal corporations, states and federal government agencies, like the Department of Defense or the Department of Homeland Security, to spend and give money in political campaigns too.
Justice Kennedy adopted the position that the "identity of the speaker" is irrelevant as long as political speech is taking place.
Sure, some people will say that this will usher in the age of Big Brother when government tells us who to vote for. But we will tell them that the Fortune 500 companies that you endowed with these rights are much wealthier and more powerful than most cities, states and federal agencies so there can't be anything to worry about. And which governments will dare to support any candidate that the companies aren't backing anyway? When government can finally join corporations in telling us who to vote for, it won't be a conflict of interest, it will be a convergence of interest.
I know some of these situations seem unlikely, but remember, Citizens United, when you came to the Supreme Court, you were focused on a specific technical question about pay-per-view videos about political candidates. That didn't stop you from turning the world upside down!
Citizens, I don't mean to stress you out too much on your special day, so let me leave you with some sweet words from Oh, the Places You'll Go by Dr. Seuss:
"You have brains in your head.
You have feet in your shoes.
You can steer yourself any direction you choose.
You're on your own and you know what you know and YOU are the one who'll decide where to go . . ."
Oh, and if you get a minute after the big party is over tonight, you might check out this long-forgotten passage from Dr. Seuss' Yertle the Turtle, which is a lot of fun too:
"I know, up on top you are seeing great sights. But down here at the bottom we, too, should have rights."
Follow Jamin Raskin on Twitter: www.twitter.com/jamie_raskin