Earlier this fall, the Senate Judiciary Committee held an important hearing on "The Citizens United Court and the Continuing Importance of the Voting Rights Act." This focus on multiple issues within the same hearing signaled a growing recognition that three seemingly different areas of concern - money in elections, attacks on the right to vote, and far-right judges - are in fact different facets of a much larger issue: whether America will remain an electoral democracy.
- Game the campaign finance system to get "the right people" elected;
- Game the balloting process to make it harder for "the wrong people" to vote; and
- Game the courts to install judges who will turn a blind eye to the Constitution and make the above two steps possible.
Gaming the Campaigns. Corporate efforts to buy our elections are nothing new, which is why American campaign finance reform legislation dates back more than 100 years. Reformers have long fought for state and federal laws to improve how America conducts its elections. But the Roberts Court has shown intense hostility toward efforts to mitigate the corrupting influence of big money on elections, most infamously in Citizens United. This case gave powerful businesses the go-ahead to use their vast corporate treasuries to engage in unlimited spending to affect elections. The DC Circuit ruled that Citizens United also prohibits limitations on individual contributions to political PACs, resulting in the now ubiquitous super-PACs letting individual billionaires drop tens of millions of dollars on attack ads. Most ordinary people can't afford to blanket the airwaves with slick commercials.
But these cases are hardly alone: The Roberts Court has also issued 5-4 opinions striking down laws that empowered candidates to respond to particularly well-funded opponents. As Justice Kagan wrote in dissent in a state public financing case: "Petitioners are able to convey their ideas without public financing--and they would prefer the field to themselves, so that they can speak free from response."
The resulting monopolization of campaign debate hands control of our elections to deep-pocketed corporate interests. According to an analysis by U.S. PIRG and Demos, outside spending organizations had reported $ 1.11 billion in spending to the FEC through the final reporting deadline in the 2012 cycle, a 400% increase over total 2008 outside spending. Also as of the last pre-election report, Super PACs had received as much from 629 wealthy individuals as the two presidential campaigns had received from all small donors giving less than $200 (at least 1.9 million people).
The flood of money significantly diminishes the voices of ordinary people and requires Herculean efforts to counter. Moneyed interests are able to frame the debate, dominate the airwaves, distort the process, and elevate candidates who would otherwise have little popular support. Especially when they fill the airwaves with misleading attacks against a candidate who is not already well known by the electorate, their influence can be enormously outsized.
When corporate-favored candidates win, they are able to pass pro-corporate legislation that harms ordinary Americans. But perhaps more sinisterly, they are also able to game the electoral process to make it far more difficult for those ordinary Americans to regain control of our government.
Gaming the Elections. The right to vote is central to our freedom. As a wiser Supreme Court stated nearly half a century ago, in 1964:
Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.
Those words were echoed by Justice Souter in his dissent to the 2008 Crawford v. Marion County Election Board, the case that upheld a strict state voter-ID law that stripped Americans of their right to vote. Yet the Justices who would later show such concern in Citizens United for the rights of artificial, non-living legal fictions that cannot vote gave short shrift to the rights of actual people in Crawford.
The state of Indiana claimed its strict voter photo-ID law was needed to prevent in-person voter impersonation fraud. But the legislature actually had no evidence of any such fraud, so there was actually no need for a law that disenfranchised qualified voters - voters who just "happened" to be disproportionately people of color, the elderly, and college students. Nevertheless, the conservatives on the Roberts Court all agreed to defer to the state in how it wants to run its elections.
After the 2010 election led to the far-right takeovers of state governments, those states saw a flurry of laws designed to keep "the wrong type" of American from voting. These laws create requirements that don't affect most people, but which stand as formidable obstacles to targeted communities. Many of these laws are pushed by the American Legislative Exchange Council (ALEC), a collection of enormously powerful and wealthy corporations and their supporters that have taken a keen interest in the arcana of state election laws.
- Nine states have passed new restrictive photo ID laws;
- Three states have passed laws requiring documentary proof of citizenship as a prerequisite to voting;
- Four states have adopted obstacles to third-party voter registration;
- Five states have passed laws to shorten early voting or eliminate it altogether.
Those pushing these laws usually claim they are not trying to restrict the right to vote. However, some have let slip indications of their true motives: to disenfranchise those who are likely to vote for progressive candidates. For instance, Pennsylvania House Majority Leader Mike Turzai bragged to his fellow Republicans that the state's new voter ID law "is going to allow Governor Romney to win the state of Pennsylvania."
When New Hampshire Republicans were using their new control of the state legislature to push a voter-ID law, one of the points of contention was whether student IDs would be acceptable. Voter ID bill sponsor Rep. Gregory Sorg said at a hearing that average taxpayers in college towns are having their votes "diluted or entirely canceled by those of a huge, largely monolithic demographic group . . . composed of people with a dearth of experience and a plethora of the easy self-confidence that only ignorance and inexperience can produce." Speaker of the House William O'Brien was caught on video telling a Tea Party group that college students are "foolish." "Voting as a liberal. That's what kids do." Not surprisingly, under the state's new laws, student IDs will not be acceptable at the polls beginning next year.
In Florida, former state GOP chairman Jim Greer admitted on national television that "what the Republican-led legislature in Florida and Governor Scott are trying to do is make sure that the Republican Party has an advantage in this upcoming [2012] election by reducing early voting, putting road blocks up for potential voters - Latinos, African-Americans - to register and then to exercise their right to vote. There's no doubt, I was in the room. It's part of the strategy."
Voter suppression goes to the heart of who we are as a nation and is unacceptable. As a panel of federal judges wrote in striking down a Florida voting restriction, "[v]oting is a fundamental right, preservative of other basic civil and political rights, and no amount of voter disenfranchisement can be regarded as de minimis."
Perhaps that is why on Election Day, we saw voters standing on line for hours, sometimes past midnight, rather than go home or to work. In many cases, having seen the voter suppression efforts of the past two years, they stayed in line for as long as it took and refused to surrender their right to vote, knowing it is the most potent weapon they have to protect all of their rights.
Gaming the Courts. Part of the genius of the Constitution is its system of checks and balances: When the elected branches violate people's rights, neutral judges step in and restore those rights.
In recent months, we have seen several instances where the courts have prevented legislative or administrative obstructions to the right to vote from going into effect. A good number of these cases have involved the Voting Rights Act, which Congress passed to enforce the Fifteenth Amendment. In areas with a history of discrimination, changes to voting procedures cannot go into effect until they are "pre-cleared" at the federal level, either by the Justice Department or a three-judge panel of a federal district court. In August, unanimous three-judge panels ruled that:
- Texas's new voter ID law has a racially discriminatory impact;
- Florida's effort to restrict early voting discriminated on the basis of race; and
- Texas had failed to show that its redistricting scheme wasn't done with discriminatory intent.
These unanimous decisions from nominees of both Democratic and Republican presidents reflect the court system working as it should. So, too, does a non-VRA case from Ohio, where a federal court ordered Ohio to restore in-person early voting the weekend before Election Day. As the judge noted, low-income and minority voters would be disproportionately affected by the elimination of those voting days.
But all district court decisions are subject to appeal, and the far right has made a concerted effort to populate the Supreme Court and circuit courts with arch-conservative ideologues. They have succeeded at the Supreme Court, where Citizens United and Crawford helped set the current crisis in motion.
In fact, in a development that would have been stunning only a few years ago, high court conservatives are widely expected to make a play at striking down as unconstitutional the preclearance provision of the Voting Rights Act. A law that American activists sacrificed their lives to see passed deserves better than to be tossed out by a far-right Court citing the familiar "state's rights" rationale. Should that occur, it will become far more difficult to protect Americans' right to vote.
Conclusion.
If you can monopolize the airwaves and prevent targeted people from voting, you've gone a long way toward controlling who wins public office and reducing the influence of democratic majorities. Through control of the Supreme Court, we have seen corporate interests set out to do just that, and the judicial system will play a major role in how the struggle to keep money out and voters in plays out in the future.
Voter suppression, money in politics, and judges - These are related issues, representing different points where Americans' right to control our own democracy is under attack. No single one of these problems can be addressed effectively in isolation if we are to preserve the government by and for the people that our nation's founders established.