A FRESH HELL or How the Supreme Court Is Destroying America Democracy

Image via Wikipedia

My friend Carly likes to discuss politics with me and sent me an email Thursday night with the subject line, "And what about this FRESH HELL?"  She was talking about the Supreme Court's 5-4 decision in Citizens United v. FEC, and FRESH HELL (in all caps) is one of the best descriptions I've heard so far on the decision.  The conservative justices on the Roberts Court in their infinite wisdom...oops, sorry, that should be infinitesimal wisdom...decided that biggest problem with American politics was that there just wasn't enough corporate money involved.

You see, in today's Orwellian world, money is speech and corporations are people with all the rights you and I enjoy with none of the responsibilities, and the conservative majority, those damned judicial activists, went far beyond the limited legal questions of the case before them and overturned decades of legislative restrictions on the role of corporations in political campaigns, including a large part of the McCain-Feingold campaign finance act that the same court, albeit with a different lineup, declared constitutional just six years ago in McConnell v. FEC, and even broadened the scope of the case to include constitutional questions raised by a 1990 case (Austin v. Michigan Chamber of Commerce), which they also managed to overturn. The decision also threatens many state laws.

In the minority dissent, Justice John Paul Stevens declared, "Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."  Later, he declared, "Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech."  Perhaps that's next.  Stevens concluded his dissent with...

"At bottom, the Court's opinion is thus 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. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

For a fascinating look at how far this court overreached and how badly they managed to subvert American democracy call up the .pdf file of the decision and skip ahead to page 88 where Justice Stevens's dissent begins, then read until you feel your head start to explode.  If you're not that ambitious or masochistic, the Progressive Review has a very small excerpt.

The Roberts court struck down a law dating back to 1947 which prohibits corporations and labor unions from using money from their general treasuries to produce and air campaign aids in congressional and presidential races, and struck down a McCain-Feingold provision that prohibits corporations and unions from airing campaign ads in the 30 days before a primary or 60 days before a general election. They did manage to retain a century-old ban on donations from corporations from their general treasuries directly to federal candidates and upheld disclosure requirements on campaign activities.

So why is this such a big deal?  In 2008, the Fortune 100 companies amassed $600 billion in profits.  Just 1% of that enormous total ($6 billion) would double the amount spent by Obama, McCain, and every candidate for the House and Senate in 2008 combined.  The Roberts Court expressed concern that the free speech rights of corporations were being suppressed, but even with the restrictions that were in place, the U.S. Chamber of Commerce still managed to spend $123 million in lobbying efforts in 2009, the financial sector invested $5 billion in influence peddling in the past decade, and the Pharmaceutical Research and Manufacturers of America (PhRMA) spent $26 million in 2009 alone to influence health care reform, with the individual drug companies ponying up tens of millions more in the effort.


This imbroglio started with Hillary: The Movie, a hatchet job produced by Citizens United when Hillary Clinton began her presidential run in 2008.  The organization wanted to run advertisements for the film and wanted to air the movie on DirectTV, but a lower court, the U.S. District Court for the District of Columbia, decided that the movie and the advertisements ran afoul of a McCain-Feingold provision that prohibits corporations, unions and special interest groups from "electioneering communications" or speech that expressly advocates the election or defeat of a candidate, ruling that the film had no other purpose than to discredit Clinton.

The imbroglio over corporate personhood dates back much further, and, while corporations already had limited rights as "artificial persons," seems to have come about due to an obiter dictum headnote by a court reporter, Bancroft Davis, who just happened to be the former president of the Newburgh and New York Railroad, in a case from the days of the robber barons.  The case, Santa Clara County v. Southern Pacific Railroad, was unremarkable, having to do with how much the railroad owed the county in property taxes.  In his headnote, a short summary of the decision and an outline of the main facts and arguments, Bancroft wrote, "The court does not wish to hear argument on the question whether the provision in 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. We are all of the opinion that it does."  Somehow, this headnote which addressed an issue that never came up in the case in question (as he mentioned in the headnote) became the legal basis for all this nonsense about corporate personhood which drove the Roberts Court to rule as it did in the Citizens United case.

Reactions are varied to Citizens United v. FEC.  Most Republicans are giddy over the prospect of overflowing campaign coffers in upcoming election, spouting a lot of nonsense about the First Amendment and free speech.  Most Democrats are stunned and dismayed, and exploring options like hearings, additional legislation, and even a Constitutional amendment.  Remarkably, around 40 corporate executives have already sent a letter to congressional leaders urging them to approve public financing.  They are tired of getting fundraising calls from candidates and fear that it's only going to get worse in the wake of Thursday's ruling.  And Colorado Republicans are already planning a lawsuit to challenge voter-approved state limits on campaign contributions in the wake of the decision.

In a rare move for a sitting president, Obama condemned the ruling as "a green light to a new stampede of special interest money" and added, "It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."

John McCain is one of the few Republicans that is not elated over the decision, but his reaction thus far has been very subdued:

I am disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions. However, it appears that key aspects of the Bipartisan Campaign Reform Act (BCRA), including the ban on soft money contributions, remain intact.

From Senator Russ Feingold (D-WI):

"It is important to note that the decision does not affect McCain-Feingold’s soft money ban, which will continue to prevent corporate contributions to the political parties from corrupting the political process. But this decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president.

Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century’s worth of campaign finance law designed to stem corruption in government.

The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections. In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible."

From Gary Ruskin of Green Change:

"The U.S. Supreme Court's decision today in Citizens United may bring an end to democracy in America. It is effectively a corporate coup d'etat.

The court has created a new right for corporations to spend unlimited amounts of wealth to purchase elections at all levels of government. This decision will devastate the integrity and moral legitimacy of our government and our elected officials. It will bring more corruption than our nation has known in more than a century.

It is sobering to see that the forces of corruption have such firm control of our nation's highest court.

Starting today, large corporations will rule our country. Their money will dominate our elections and our elected officials, and will purchase more influence than we can imagine. Our nation's giant corporations have used our own Constitution against us to grab power for themselves. We should have no pretence that it is any other way.

Today's decision marks the beginning of dark times for our nation. It is hard to see how we will emerge from them. Obviously, we must work for constitutional amendments to remove corporate money from politics, and more broadly, to end corporate personhood. These will be exceedingly hard to win. But try we must. And it is only the beginning of what we must do."

From Representative Alan Grayson (D-FL) on a segment on Countdown with Keith Olberman:

"I'm shocked. I'm shocked by this decision. This is the most irresponsible decision by the Supreme Court since the Dred Scott decision over 100 years ago...The Dred Scott decision has some analogy to it. In the Dred Scott decision, the Court decided that slaves and their free-born children do not have any constitutional rights. Today, the Court, in effect, decided that only corporations have constitutional rights. This will lead to a drowning flood of money from corporations in exchange for favors, and it basically institutionalizes and legalizes bribery on the largest scale imaginable. Corporations will now be able to reward the politicians that play ball with them, and will able to beat to death the politicians who don't.

In anticipation of Thursday's decision, Grayson introduced five bills to offset some of the damage, and he has a great penchant for naming bills. They are the Business Should Mind Its Own Business Act, the Public Company Responsibility Act, the End Political Kickbacks Act, the Corporate Propaganda Sunshine Act, and the Ending Corporate Collusion Act. He discusses the decision and the proposed legislation with Olbermann in this video clip...



From Ralph Nader:

Today’s decision by the U.S. Supreme Court in Citizens United v. Federal Election Commission shreds the fabric of our already weakened democracy by allowing corporations to more completely dominate our corrupted electoral process. It is outrageous that corporations already attempt to influence or bribe our political candidates through their political action committees (PACs), which solicit employees and shareholders for donations. With this decision, corporations can now also draw on their corporate treasuries and pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars.

This corporatist, anti-voter decision is so extreme that it should galvanize a grassroots effort to enact a Constitutional Amendment to once and for all end corporate personhood and curtail the corrosive impact of big money on politics. It is indeed time for a Constitutional amendment to prevent corporate campaign contributions from commercializing our elections and drowning out the civic and political voices and values of citizens and voters. It is way overdue to overthrow “King Corporation” and restore the sovereignty of “We the People”!

David Bossie, president of Citizens United, is understandably thrilled with the decision:

There can be honest disagreements about the role of money in politics. But I would hope that, whether Republican or Democrat, liberal or conservative, we can all agree that any attempt by the government to silence a citizen should be met with a stern rebuke. This is not an issue that is easily categorized as "conservative" or "liberal." In our case, the ACLU joined with the NRA, and the AFL-CIO joined with the Chamber of Commerce in support of Citizens United and the First Amendment. We were fighting as much for the rights of filmmakers like Michael Moore as we were for our own right to produce, advertise and distribute films.

Thankfully, the Roberts Court has put the brakes on a slide down a very slippery and very dangerous slope. With yesterday's ruling, so-called "reformers" have been put on notice that, as Justice Kennedy said in the opinion of the court, "when Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy."

Related articles by Zemanta

• Mark Green: The Court Allows a Katrina of Corporate Money (huffingtonpost.com)
• Justices Overturn Key Campaign Limits (nytimes.com)
• The Supreme Court kills campaign finance reform in Citizens United. (slate.com)