Today's 5-4 Supreme Court ruling is the second shoe to drop this week clobbering democracy. First was the combination of the filibuster's 60 seat rule and Scott Brown's election. Now the Court permits corporate money -- 17 times larger than labor money -- to overwhelm the levees of democracy.
The narrow issue in Citizens United v. Federal Election Commission was whether a group distributing a virulent anti-Hillary Clinton film in the 2008 presidential campaign ran afoul of the McCain-Feingold law's prohibition of independent expenditures just before an election. Already we have a compromised democracy when 0.1 percent of Americans who contribute $1,000 or more in federal elections have more influence that the other 99 percent. But now that the Court's conservatives bloc of Roberts, Scalia, Alito, Thomas and Kennedy allow such unlimited corporate electioneering if uncoordinated with a candidate, 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.
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)?
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. He was spurred to propose and 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 ignored law and overruled 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. The result: a decision that supports the worst aspects of Santa Clara and Buckley. Now 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!"
The conservative majority hypocritically ignores their usual complaints about activist courts overruling precedent based on their preferences -- recall here the confirmation hearings of Chief Justice Roberts when he said that precedent should not be overruled unless there were serious questions about whether the prior decision was arbitrary, unworkable or "eroded by subsequent developments." What subsequent developments occurred to change years of decisions?
Instead of being judicial activists substituting their 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 revenue that reflects not values, but merely business success. Or the Court could have ruled against the FEC on the narrower grounds that McCain-Feingold and other restrictions on corporate donations applies to political ads, not films or books.
Democratic congressional leaders and campaign finance reformers have to now immediately meet to map out a strategy beyond waiting seven years for Obama to replace a conservative justice with a progressive one. One idea is a drive for a constitutional amendment to reverse Citizen's United. But even beyond the difficulty of getting three-quarters of state legislatures to go along (see: Equal Rights Amendment), that seems untenable precisely because of the Catch 22 that business interests will be free to spend massively in ads to avoid that result. Until there's a strategic breakthrough, unions and Democrats will have to more aggressively use the Obama-Internet model to generate the kinds of small funds that collectively start to offset what business interests can and will do.
At the least, congressional Democrats need to push hard and often for legislation establishing public financing of congressional elections. Though it cannot overcome the Senate's filibuster now, a clean money bill (proposed by Senator Carl Levin) can at least draw sharp lines this Fall, forcing faux Republican populists into choosing to be on the side of big business interests or consumer interests. Let the next Scott Browns explain how they can be outsiders while encouraging big inside money.
This blog is an updated version of a previous post that that was written before the Court's decision.
The Citizens United ruling frees everyone (of all political persuasions) to pool their funds in specially chartered non-profit corporations for electioneering purposes. Well-heeled class traitors (basically FDR's ilk) can now join with legions of small donors in very amply funding newly minted left-liberal electioneering non-profits to effectively spread the messages of third parties and their maverick candidates or populist Democratic insurgent challengers to corporate friendly Democratic incumbents.
Whether so intended or not, it is a cure for the sclerosis to our body politic that has been caused by the worst-of-all-worlds limits on donations to individual candidates, complicated PAC rules and the hellish Orwellian FEC enforcement bureaucracy that has made participating in politics far too intricate and intimidating.
As to the potential "drowning out" problem, there is only so much bandwidth available to electioneers during election season. Only so many political ad slots on tv and radio, only so many websites and print media outlets to advertise on, only so many organizers to go door-to- door, only so many rallies and debates one can attend, etc.
Once there is enough money to effectively get a candidate's message out eloquently to the multitudes, it becomes a war of ideas and character of the competing candidates or cause's advocates.
That is a fight real progressives can and will win.
Eric C. Jacobson
Public Interest Lawyer
Culver City, California
This is a fight real progressives can't win and won't win.
There are just not enough class traitors in America to overcome the corporate loyalists.
Everybody is against lawyers until they need one. I get that.
We simply disagree. I believe there are more than enough class traitors to amply fund public interest oriented candidacies (not my own if that's what you're thinking -- been there, done that) that will finally elevate a cadre of pols with the fortitude and talent to run circles around the right.
Many well-heeled types "get" that our society has veered dangerously off course towards perilously excessive class stratification domestically and military adventurism abroad. These people can and will step up once the contours of the new political landscape and groundrules come into view.
I repeat, once candidates or their supporters have the ability to spend the threshold sum (not small) required to run a dignfied and effective campaign, the ability of one side or the other to spend money is the political equivalent of bombs that make the rubble bounce.
(If broadcasters did dare auction off available commercial time during the final stages of a campaign to the highest bidder, in effect, allowing the message of rightist candidates to dominate the airwaves during the critical run up to election day, that would have to prevented "by any means necessary". Presumably legislation would suffice.)
The Supreme Court has just administered an angioplasty to the American body politic's hardened arteries. The job of progressives now is, like Joe Hill said, not to mourn but rather to organize "one, two, many" electioneering non-profit corporations and take back America.
Eric
"all pigs are equal, it's just some pigs are more equal than others"
The corporations are now more equal than "we the people", because they have
millions to spend, and the more money you have the more "free speech" you have.
The Supreme Court (or the five that supported this travesty) basically demoted 99.99% of the people in this country into second class citizens, and thumbed their noses at us while doing it.
Orwell was a visionary of things to come..........
Nobody said that the people who own business cannot give bonuses. The stock holders own the corporations. Each stock holder should have the right by law to decide what fraction of his investment (if any) in the company should be used for a bonus. Some stock holders will give and some will not. Those who are losing money should not be forced to give bonuses.
The stock holders are also voters. They should decide how much of their money goes into supporting any given candidate. Union members should also vote and decide.
Speech is not an anonymous entity. Ghostwriters do not cash paychecks. The real writers do. The donations will either be the free speech of the CEOs or the Stock holders.
When money talks, you do not have to listen. But, when money votes, you still have to count them.
The president should not punish the stock holders because the management teams decided to give themselves bonuses. The stock holders are frustrated and are pulling back. They will also return the favor with their votes.
We went from "too big to fail" to "too rich to be challenged" The only way to regulate the supreme CEOs is by giving stock holders the power to regulate compensations for the technicians who run the corporations and the power to decide how to contribute to the political process.
Thank you!
The five conservative justices who voted for this travesty are not likely to change their minds. They are also young enough and apparently healthy enough that waiting for one of them to leave the Court in time to prevent permanent damage to the Republic is a poor bet. So, redefine the majority by increasing the Court from nine to eleven members and giving Obama a chance to appoint two new justices. This would be perfectly legal since Article III gives the Congress authority to set the size of the Court.
As for the almost inevitable filibuster, break it using the Republicans' own "nuclear option" of 2005.
As for attempts to legislate restrictions on corporations to limit the damage, I support such efforts if only to buy time. However, a Court that will so cavalierly overturn 100+ years of law and precedent will almost certainly declare unconstitutional any meaningful restrictions.
I am aware that "packing" the Court would ignite a political firestorm and of the history of FDR's attempt in 1937. Under normal conditions, I would argue against court packing and the nuclear option, but these are not normal times and the alternatives are far worse.
Congressional Republicans perceive no need to negotiate on health care reform, and so far they're right. They can gain few if any votes by supporting any public health care option and absolutely increase in their campaign donations from their current list of sponsors, which are overwhelmingly corporate.
But reward is not the only kind of incentive Congressional Democrats can use, and health insurance corporations are not the only donors that are owed favors from Congressional Republicans. They obviously don't want to negotiate, but they can be forced to, by taking away the $70,000,000,000 ($70 Billion) of federal subsidies per year from corporate producers of petroleum, coal, and corn ethanol which also happen to be major corporate donors to Republicans.
http://www.grist.org/article/2009-09-22-fossil-fuel-subsidies-dwarf-clean-energy-subsidies-obama-wants
The time is right, as the House and Senate conclude health care negotiations, to divide the opposition.
http://www.reedyoung.org/politics/general_welfare/medical_care/2010/01/10/
Please sign
http://www.thepetitionsite.com/4/stop-giving-taxpayers-money-to-corporations-who-fight-against-our-right-to-medical-care
From now on, I'm not going to pay for anything, I'll just talk to them for 1 minute per dollar and call it good. Okay? Okay.
The court forgot the USA is the "united" states only as long as people believe in it.
As that belief dwindles further, all bets are off.
The Constitution needs to be clarified with an amendment on speech. The prospect of that happening is dininished by the ruling itself. The first and highest priority of our people and their representatives has to be campaign reform to level the field. Everything else will follow.