In what would be a judicial coup d'etat by five conservative justices, the Supreme Court appears likely to imminently overrule 100 years of federal laws restricting corporate campaign contributions.
The narrow issue in Citizens United v. Federal Election Commission is whether a group distributing a virulent anti-Hillary Clinton film in the 2008 campaign ran afoul of the McCain-Feingold law's prohibition of independent expenditures just before an election. Already we have a compromised democracy when .1 percent of Americans who contribute $1,000 or more in federal elections have more influence that the other 99 percent. But should the Court's conservatives bloc of Roberts, Scalia, Alito, Thomas and Kennedy allow such unlimited corporate electioneering, then any corporation or trade group could threaten to spend, say, $10 million to defeat a sitting legislator if he/she didn't toe the company line. Then the ethic of money-talks would yield to money-wins.
From the start, there's been a contest between a democracy of voters and an economy of capital. In a May 1792 letter, Thomas Jefferson urged President George Washington to rally people into a party that "would defend democracy against the corrupt ambitions of monied interests." In 1904, Teddy Roosevelt was embarrassed by publicity that he relied heavily on corporate contributions to win the presidency. About the same time, an investigating committee of the New York State Assembly asked State Senator Thomas Platt if he felt obligated to work for companies that funded his campaign. "That is naturally what is involved," he candidly answered. The resulting public outcry prodded TR to enact the 1907 Tillman Act, prohibiting corporations from contributing to candidates because of the fact or appearance of purchased politicians. The law, as later amended and strengthened, was last conclusively upheld in the 1990 case of Austin v. Michigan Chamber of Commerce as the Court majority reasoned that "corporate wealth can unfairly influence elections."
Then, in the post-Watergate moment in 1974, Congress enacted a strong campaign finance law limiting and disclosing contributions from individuals and PACs. And in 2002, the McCain-Feingold law, among other things, closed a loophole that allowed companies to spend money "independently" just before elections designed to defeat targeted candidates, a provision upheld in 2003 in McConnell v. FEC.
So how did we get to the flashpoint where today's Court might ignore law and overrule long-standing precedent to allow corporations again to dominate our politics? A little
judicial history is necessary.
In the 1886 case of Santa Clara County v. Southern Pacific Railroad Co., involving a routine local tax matter, the court reporter incorrectly put as the formal "headquote" of the decision something that was never argued or decided, namely that "the Fourteenth Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations." As Thom Hartmann describes well in his book Unequal Justice, this "decision" then became to be regarded as black-letter law, meaning that, in Justice William O. Douglas's later lament, "corporations were now armed with constitutional prerogatives."
Cut to 1976 when, in a poorly reasoned decision in Buckley v. Valeo, a 6-3 Court concluded that while donations could be restricted as potentially corrupting, there should be no ceiling on expenditures since that could be like limiting speech itself -- which commentators have simplified into the ethic that money = speech.. (Really? So laws against bribery are unconstitutional because the payment of money to a decision-maker is mere speech?)
Now comes Citizen's United where in oral argument this past June 29, an FEC lawyer gave the wrong answer to a Justice Scalia question about whether, if the FEC could ban a film that functioned as an attack ad, it could also ban a book attacking a candidate. Instead of saying that books had special first amendment protection, unlike ads in the guise of films, he answered "yes," producing gasps. So the Court insisted on further argument in September, when five justices from the Bench seemed to indicate their support for combining the worst aspects of Santa Clara and Buckley -- i.e., a multi-billion, multinational corporation -- a legal fiction created in perpetuity -- is constitutionally just like a grandma on a soap box when it comes to influencing elections. Or as author David Kay Johnston nicely put it, "imagine, vocal chords on a Cayman Islands post office box!"
There's still the possibility that Chief Justice Roberts, whatever his personal campaign finance opinions, would hold to the view as expressed at his confirmation hearings -- that precedent should rarely be overruled unless there were serious questions about whether the prior decision was arbitrary, unworkable or "eroded by subsequent developments." Instead of being judicial activists substituting its judgment for several Congresses, the Court could easily conclude that, factually, it's one thing for a corporation to use money to buy another company, but quite another to buy a congressman -- one thing to finance any contributions from political action committees based on voluntary funds, quite another from general revenues which reflects not values but merely business success. And there's still the possibility that the Court could rule against the FEC on the narrower grounds that McCain-Feingold and other restrictions on corporate donations applies to political ads, not films or books.
But if this Court overturns both Austin and McDonnell, what would then keep any interest group from spending tens of millions in "independent" ads to defeat a swing member...or merely threatening to do so? How many state or federal legislators could stand up to a corporate lobbyist, with a history of independent ads, saying that "our people feel very very strongly about this bill" (i.e., you have a nice career and we hope nothing happens to it)? Then would an ocean of money overwhelm the levees of democracy.
Should that happen, there are not many options. Such a result could theoretically provoke a movement to enact a constitutional amendment, but that process seems hopelessly implausible, if for no other reason than corporations could spend hundreds of millions to stop such an amendment dead in its tracks, demonstrating the problem while stymieing the solution. A constitutional Catch 22.
Or Congress could enact a strong federal public funding system to somewhat level the playing field. But current deficits and the Senate filibuster makes that hard to imagine in the near future, short of a real populist backlash to such an anti-democracy decision.
Or America could wait out the departure from the Court of a couple of conservatives and wait for Democratic presidents (plural) to appoint in their place more small "d" democratic jurists who understand what it would be like to have elections regularly decided by big spenders rather than average voters. Then, perhaps in 2020 or so, a new Court could review prior precedent in the context of what actually occurred after a 2009 ruling made Citizens United our generation's campaign finance Dred Scott.
Follow Mark Green on Twitter: www.twitter.com/markjgreen