Shortly after George W. Bush was re-elected in 2004, a friend of mine said, "Well, at least we'll be rid of him forever in four years." My response was, "I wish." Although it's a tiny part of any presidential campaign, presidents leave a lasting impression on the future of America through their appointments of Supreme Court justices, who serve for life. I knew that Bush's re-election meant that his extreme right wing views would haunt us on the nation's highest court for decades. And sure enough, within two years, Bush had the opportunity to appoint two exceptionally right wing justices, John Roberts and Samuel Alito, to the Supreme Court, joining fellow extreme conservatives Antonin Scalia and Clarence Thomas.
The Bush legacy was the first thing I thought of when I read of the Supreme Court's decision in Citizens United v. Federal Election Commission, because it showed how a right wing Court would not only pose a threat on hot-button issues like abortion and civil rights, but would actually be a danger to our long-cherished basic democratic principles.
President Obama said of the decision that he could not "think of anything more devastating to the public interest." In the often-hyperbolized world of political statements, it's easy to dismiss his concern as exaggerated. I assure you it is not. In short, in my opinion, there is no internal threat to traditional American principles of democracy greater than Scalia, Thomas, Roberts and Alito, as revealed in this decision, and it is time for Americans to wake up and see what these four extremists, far out of step with the average citizen, are doing to our country.
(In a September 2009 New York Times piece, Jeffrey Rosen argued that Roberts wasn't quite as extreme to the right as Scalia and Thomas. I won't quibble on matters of degree. My point is that even if Roberts isn't quite as fringe as Scalia and Thomas, it doesn't matter, because in practice, he and Alito end up joining in on dangerous Court rulings, like in Citizens United. The fact that Roberts didn't join a handful of Thomas and/or Scalia dissents, which would have no effect on the ultimate ruling, is, in the end, meaningless, and the distinction between the Scalia/Thomas position and the Roberts stance becomes one without a difference. Or, as former Solicitor General Theodore Olson put it, "These kinds of distinctions among the conservatives are just angels-on-the-head-of-a-pin stuff.")
I could probably write multiple pieces on different ways in which Citizens United is an abomination to anyone who respects the American political and judicial systems, but I will restrict myself here to brief discussions of two of the biggest threats posed by this repugnant ruling.
Democracy? What Democracy?
Citizens United essentially allows corporations to dump even more money into the political system than they currently do, even further drowning out the voices of average Americans. Have you enjoyed the way the pharmaceutical and insurance lobby have successfully won so much protection from Congress that not only has health care reform been limited (and, possibly, completely killed), but the percentage of GDP spent on health care has continued to climb, as Americans have paid more and more for insurance and received less and less coverage? Have you liked how the oil companies have raked in massive profits and poured billions into lobbying the government to prevent legislation that would curb pollution and encourage new energy sources, all while gas prices spike again and again, our foreign policy is compromised by our dependence on oil, global warming goes unaddressed, and we fail to develop green energy options? Have you been a fan of how the financial industry has poured billions of dollars into lobbying to forestall regulatory changes, even as the reckless ways of the industry led to a near financial crash, a severe recession and a massive federal bailout?
Well, after Citizens United, it will all be worse.
Corporate interests, which already dominate Washington politics and prevent any meaningful change that would be helpful to average Americans (and who own too many members of Congress, especially on the GOP side but, unfortunately, from both parties), have now had their power reinforced and expanded. Citizens United is nothing short of a massive change in the way American politics will function.
The New York Times editorial after the ruling does a great job of outlining why the decision is so dangerous.
One side issue coming from the decision has been the argument of those on the right that the Citizens United decision would not concentrate massive amounts of power in the hands of corporations, because unions would also be freed to pour money into the political system. The argument goes that these two forces balance each other out.
Unfortunately, as usual, much of the mainstream media has picked up the conservative argument without question, not bothering to point out that corporations have monumentally more resources available than unions.
Lewis Friedland, a professor at the University of Wisconsin School of Journalism and Mass Communication (full disclosure: Lew is my academic advisor at Wisconsin), did some preliminary research to dispel the myth of the right-wing argument that the unions balance out the corporations.
Lew notes that the National Education Association, the largest union in the country, had reported assets of $188 million dollars in 2007 (to be clear, that's not the union's budget for advocacy, but all of its holdings). He wryly notes that $188 million is "barely a rounding error for a midsized regional bank holding company." Lew went on to calculate that, based on 2006 figures, there were approximately 10,000 unions in the United States with more than 200 members, and that the 38 largest unions range from the NEA, with 2.6 million members, to the United Mine Workers, who count 100,000 in its ranks. He notes that if all 38 top unions had the same assets of the NEA (something clearly not true, given that the biggest union is 26 times larger than the 38th-ranked one), the top unions, all together, would hold a bit more than $7 billion in assets.
If the unions are supposed to counterbalance corporate interests, the assumption would be that the unions have roughly the same amount of financial power as the corporations. But, clearly, with well under $10 billion, the unions don't amount to a gnat buzzing around the head of corporate America. Consider that the 2009 compensation pool for Goldman Sachs alone was $16.2 billion. Think about that for one minute. One bank paid its employees in one year more than double (and probably more than triple) the total assets of the top 38 unions in the country.
Want to go assets to assets? Fine. Again, let's just stick with the banks (putting aside the behemoths in oil, pharmaceuticals, health insurance, etc.). Lew points out that of the top 10 U.S. bank holding companies, four have assets of more than $1 trillion (Bank of America, JP Morgan Chase, Citigroup and Wells Fargo), with Bank of America and JP Morgan Chase holding assets of more than $2 trillion each. So these four companies, which make up one part of one industry in a much wider corporate economy, hold $6 trillion in assets. Lew argues that if just the top-four banks contributed one-tenth of one percent of their assets ($6 billion), it would represent roughly the amount of all of the assets of all of the unions in America.
So how do the unions counterbalance all of the corporations? In short, they don't.
The Supreme Court's decision in Citizens Union has bastardized the American political process. Central tenets of our cherished democratic system, such as one-person one-vote, equality, and a marketplace ideas to which everyone can contribute, and from which the best ideas are accepted, are shredded by the Court's capricious, self-serving gesture of eliminating limits on corporate political spending, one of which goes back to 1907.
Beware of Activist Judges
Republicans love to talk about the danger posed by liberals who are, in their term, "activist judges." They seek to scare the American people (Republicans? Trying to scare Americans to bully them into endorsing their policies? Shocking, right?) by self-righteously declaring that these liberals seek to bypass the will of the American people and their representatives in Congress by legislating from the bench. The line of argument has become so ingrained in the mainstream media's political discussion that when a Democratic president appoints a federal judge (especially a Supreme Court justice), it's as if the appointment starts from the defensive position of having to prove the judge is not an activist. As happens so often, the Republican lie has taken on a life of its own.
But here is the dirty little secret the GOP doesn't want you to know: The four extreme right wing Supreme Court justices are as activist as any judges can get, seeking to use their seats on the Court as a way to undo decades (sometimes more) of precedent in the service of enacting conservative policies. More precisely, the Roberts Court consistently chooses the side of those with power over those without it. As Bruce Shapiro put it in the Nation in 2007, the Roberts Court had showed "an almost gleeful judicial activism aimed not at any particular policy but at the basic configuration of power in this country. Antitrust means antiregulation, free speech means muzzling student protest, desegregation means maintaining segregation."
In a 2009 article in the New Yorker, Jeffrey Toobin did a great job of nailing down the philosophy of Roberts -- and by extension, the Roberts Court:
Roberts's record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
And Toobin quotes Justice Stephen Breyer as saying from the bench during a dissent, "It is not often in the law that so few have so quickly changed so much."
From striking down a school integration plan under the Equal Protection Clause to upholding the Partial Birth Abortion Ban Act to rejecting a defendant's right to DNA evidence to all but eliminating many employment discrimination cases to limiting antitrust application, the Court has been quick to resurrect long-dormant principles (ranging from decisions to constitutional principles) or overturn well-established case law (in the case of the antitrust decision, they overturned a 96-year-old precedent) to get to the result it wants. This is the text book definition of an activist court.
And as many commentators have pointed out, the allegedly activist Warren Court often had unanimous or near unanimous decisions on major cases (such as New York Times v. Sullivan and Brown v. The Board of Education), while the Roberts Court has seen a long string of 5-4 decisions, with the four fringe right wing justices teaming up with the one traditional conservative (Anthony Kennedy) to get the five necessary votes. In the Warren Court, justices across the political spectrum agreed on the judicial principles at stake. In the Roberts Court, there is a split along political and ideological lines on the big decisions.
In fact, in Citizens United, the Court overturned three precedents, going as far back as 1990.
So who is the activist?
Citizens United is just the latest (and more visible, due to its importance) in a line of Roberts Court decisions that have employed activist judicial techniques to craft decisions that diminish the rights of average Americans. A few days ago, we saw what happened when the voters of Massachusetts were angry over the lack of action in Washington against unemployment and the abuses in the financial sector. By that standard, the whole country should be irate by what the Supreme Court has become, and over the right wing political principles the Court exhibited in its decision in Citizens United. We can only hope that voters will remember, when they cast their ballots in November, who appointed the five conservative justices on the Court.
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