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The retirement decisions by Senators Chris Dodd and Byron Dorgan last week gave pundits and analysts story leads, but a far more important announcement is coming, maybe as soon as tomorrow. The Supreme Court, with its five-justice conservative majority, is expected imminently to release its long-awaited decision in Citizens United v. FEC. The ruling could have a much greater influence on the prospects of progressives in 2010 than any individual candidate’s decision to run. Indeed, the Court could change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending.
Citizens United involves a hit-job documentary called Hillary, The Movie, produced by David Bossie for Citizens United to coincide with the 2008 presidential primary season. The case began as a relatively insignificant, technical challenge to the Federal Election Commission’s decision to treat the film’s production and release as "corporate electioneering," subject to regulation under the McCain-Feingold campaign finance law. It was transformed into a potential blockbuster last June when the Supreme Court ordered the parties to brief and argue the question of whether the law itself, which restricts the political use of corporate funds, is unconstitutional and whether prior cases upholding such restrictions should be overruled.
Citizens United is now arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would jettison a distinction that has been in place in our Constitution since it was written and in our statutory law since the Tillman Act of 1907. As a result, corporations would get a green light to spend unlimited amounts of money in elections.
To see the significance of this, consider that in his historic run to the presidency, Barack Obama broke every political fundraising record, raising nearly $750 million from more than a million contributors in 2007 and 2008. This sounds impressive until you consider that during 2008 alone, ExxonMobil Corporation generated profits of $45 billion. With a diversion of even 2 percent of these profits to the political process, Exxon could have far outspent the Obama campaign and fundamentally changed the dynamic of the 2008 election, perhaps even the result.
Projecting this forward to 2010, ExxonMobil could spend a small fraction of its profits and transform close elections involving supporters of a clean energy bill that moves the economy away from fossil fuels. Insurance companies, drug companies and bailed-out Wall Street banks could do the same thing in races involving candidates whose positions they dislike. President Obama and his supporters have learned this year just how hard it is to bring change to Washington. Just think about how difficult change will become if corporations can use their general treasuries to put a gun to the heads of vulnerable politicians.
Opponents of campaign finance laws claim that such a ruling overturning limits on corporate spending in elections is necessary to vindicate the First Amendment rights of corporations. That’s a crock. The Constitution never mentions corporations – it protects "we the people" – and from the dawn of the Republic the Supreme Court has held that corporations, which are artificial entities, created by the state to facilitate commerce, and given special privileges that average citizens don’t have, are appropriately subject to greater government oversight. A ruling by the Court overturning this centuries-old tradition would be indefensible judicial activism, as explained in detail in this historical analysis released by Constitutional Accountability Center in December.
Distinctions in the constitutional protections afforded to living persons and corporations are particularly appropriate in the political arena. Corporations are not citizens, they do not vote, and cannot run for office. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons. This is the law today, but, tragically, it may not be the law at week’s end.
Indeed, whenever the case is decided, Citizens United may ultimately top Bush v. Gore as the leading example of how the conservative-dominated Supreme Court is overreaching and thwarting progressive change: while Bush v. Gore gave us eight years of President George W. Bush, Citizens United could put progressive candidates at a disadvantage for generations to come. And Citizens United is only one of many cases in which the progressive agenda is at risk. The lede of this recent article in The Hill newspaper says it all: "Republicans and allied groups say they will spend millions to oppose healthcare reform and other Democratic initiatives in the courts, which they see as a last line of defense against President Barack Obama’s agenda."
It’s hard to predict with any great certainty what the Court will decide in Citizens United. The conservative majority on the Court seemed poised to issue a sweeping ruling last spring striking down a critical component of the Voting Rights Act, then ended up deciding the case on narrower grounds. A similar result is still possible in Citizens United.
What we do know is that the courts will end up deciding whether just about every part of the progressive agenda stands or falls. If progressives need any reminder of the central message of Bush v. Gore, here it is: courts matter.
This article was written by Doug Kendall, President & Founder of Constitutional Accountability Center, a think tank and law firm dedicated to showing how the Constitution’s text and history uphold progressive outcomes. It has been cross-posted from Text & History.
5 Comments
So the decision is due out tomorrow huh?
Heh, January 12, 2010, a day that will live in infamy.
Motherfucking assholes.
Nice SCOTUS we got going.
Basically affirms (by not taking) a lower court case that says Obama can sign a piece of paper and that makes a person a ‘non-person’ and not subject to the Constitution.
Then, most likely, makes corporations more of a person.
Really fucking nice. People become less of a person regarding the Constitution and corporations become more of one.
Goddamned motherfucking assholes.
(Guess I’d better stop now, cause I’m really ready to start cussing in a minute. That and throw bricks at something.)
Why limit the potential slush fund just to profits?
The oil industry spends billions in advertising, legal fees, lobbying and government relations already. $45 Billion in one year’s profit is a fraction – a tiny fraction – of the resources this industry has available to it for political activity. The oil industry has its profits, its operating budget and all the resources already directed toward affecting public policy and legal protections at its disposal. If it get the green light to spend the money directly, there is a much bigger pool of resources than just the paltry $45 billion.
sláinte,
cl
There is nothing conservative about this. There is nothing small “r” republican about this. This is just more radical destruction of the republic to which these totally ignorant assholes have sworn allegiance. The Founding Fathers would be aghast to see how irresponsible and ignorant our political elites are. If you asked them what was the purpose of our form of government, they wouldn’t have a clue. This is an important case. Our campaign finance laws are a joke. Anybody who has thought about them realizes they are shot through with contradictions. For example, if you own a newspaper, you can support a candidate day in and day out without having to file any kind of paperwork. But if you want to run a commercial with the same message, then hello to all manner of campaign law. Is it any wonder that some of the justices said they had headaches after the hearings for this case? That’s because it is all contradictory BS. All it does is SERVE THE STATUS QUO. The airwaves need to be made available to all viable candidates period. We own them. Only this serves the interest preserving of our republican government.
WHY CONGRESS MATTERS: IT CAN ADD 2 MEMBERS TO THE COURT AND AVOID THIS PROBLEM
The ability of the people to limit political campaign spending is now under assault by both the Republicans and the Democrats.
Corporations have been banned from making any contributions to candidates for federal office since 1907 and banned from making any “independent expenditures” since 1947. Unioins since 1946 have been banned from making contributions or independent expenditures for or against federal candidates. Most states have similar bans applicable to state and local races for public office.
But the U.S. Supreme Court is probably going to change that, any day now. Justices Roberts and Alito are leading the charge to declare unconstitutional (under the First Amendment) the ban on using corporate money for “independent expenditures” to support or oppose candidates. The Court adopted a special rush schedule to decide the Citizens United, Inc. case, so that the federal ban on corporate “independent expenditures” is destroyed prior to the 2010 Congressional elections. This will enable corporations to spend unlimited amounts to mislead voters, with massive media campaigns, about the beliefs and policies of the candidates they support (or oppose). It also sets the stage for the Court to then declare that, since (1) independent expenditures must be unlimited and (2) candidates themselves should be in control of their messages to voters, there is no compelling reason to limit contributions to candidates by anyone, including corporations, unions, and wealthy individuals. This would destroy campaign finance reform in the United States for all candidate races, including federal, state, and local.
Campaign corruption is not limited to one major party. The Democrats in Congress now get more campaign money from corporate executives than the Republicans, because the Democrats are in power. But watch out for 2010. With unlimited corporate “independent” money, the Republicans could make a striking comeback, which would then doom even the mild reforms proposed by Obama.
The assault on campaign finance reform by the U.S. Supreme Court can now be stopped only by changing the Court itself, under the control of the appointees of Reagan, Bush I and Bush II. The current 5-4 majority against campaign finance reform will likely persist for many years, as the youngest justices are generally the most hostile to limits on campaign contributions and expenditures. The number of justices on the Court is determined by Congress. Congress can enact a law to change the number, which has been changed 8 times in the past and has ranged in size from 5 to 10. A simple majority in the House and Senate. along with the President’s signature, could add two justices, allowing Obama to quickly establish a majority that would uphold the campaign finance laws that are critical to maintaining any semblance of democracy.
Can enlarging the Court work? The mere public announcement by Franklin Roosevelt (FDR) in 1937 of a bill to increase the number of justices (the “court-packing plan”) resulted in the famous “switch in time that saved nine,” when Justice Owen Roberts then suddenly reversed his anti-New Deal stance so that Congress would be discouraged from adding more justices. Taking the initiative to change the court worked for FDR, almost immediately. Then, FDR in the next 6 years replaced 8 of the 9 justices, who retired or died.
Will the Democrats in Congress, with their large majorities, do this? Probably not, because releasing unlimited corporate money would benefit them as well, protecting them against any populist challenges in their primaries or the emergence of progressive minor party candidates. The same Court decision would also unleash unlimited union spending to benefit Democrats further.
But aren’t 60 votes needed to pass anything in the U.S. Senate, since current Senate rules require 60 votes to stop a filibuster? Absolutely not. Did the Republicans need 60 votes in order to confirm the opponents of campaign finance reform to the U.S. Supreme Court? Clarence Thomas was confirmed with only 52 votes by a Senate controlled by 57 Democrats, 11 of whom voted to confirm Thomas, perhaps the most right-wing justice in history. Samuel Alito was confirmed with only 58 votes. Apparently, 60 votes is needed only if the proposed action is in the public interest. Anything in the corporate interest takes only 51 votes.
Some folks say this is because the Democrats lack courage or are “wimpy.” But that is not the problem. The Democrats and the Republicans are both chosen for office by a somewhat restricted big money system. If they can get campaign finance limits lifted without getting blamed for it by the public, all the better for them. They can just blame the U.S. Supreme Court, while happily taking hundreds of millions of dollars in campaign contributions and benefiting from what will probably amount to over $1 billion in “independent expenditures” by corporations and unions, with most of it going to the incumbents.
We need a national campaign to “enlarge the Court” now. Check out http://www.packthecourt.com and get involved.