27 July 2012


It has been a year and a half since the U.S. Supreme Court, in a 5-4 decision, ruled that "the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions".  This was the infamous Citizens United case, and in overturning portions of the 2002 Bipartisan Campaign Reform Act (known familiarly as the McCain-Feingold Act), the Court opened the floodgates for special interests and their lobbyists, enabling them to bypass campaign reform law by funneling mountains of cash through superPACs to influence the legislators of their choice.  The case which enabled the formation of superPACS was decided just a few weeks after Citizens United.  Unlike traditional Political Action Committees (PACs), superPACs "may not make contributions to candidate campaigns or parties, but may engage in unlimited political spending independent of the campaigns.  Also unlike traditional PACs, they can raise funds from corporations, unions and other groups, and from individuals, without legal limits."

The ripples of consequence have been in the news for the entire presidential campaign spanning the past year.  This has been the dirtiest election since Richard Nixon's presidency, and it is only going to get worse, given the ideological polarization which has paralyzed Washington since President Obama took office ~ a paralysis which is coldly calculated and deliberate on the part of Republicans.  Legislation which they themselves supported before Obama's election, has become anathema in the Republican caucus in both the House and Senate.  The advent of unlimited financing whose sources are not revealed, i.e. dark money, has freed many legislators from the normal strictures which bind their behavior to the wishes of the voters.

In a Mother Jones article, How to Sweep the Dark Money out of Politics, the authors summarize the situation nicely ~  "The majority opinion in Citizens United takes up 57 pages, but it's pretty efficiently boiled down as follows ~ (1) Money is speech;  (2) corporations are people;  (3) therefore, under the First Amendment, the government can't stop corporations from spending money on politics pretty much however they choose.

"[Justice John Paul] Stevens penned an impassioned 90-page dissent lambasting the 'glittering generality' of this construction.  'Although they make enormous contributions to our society, corporations are not actually members of it,' he wrote.  'Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.'

"Stevens wasn't the only one appalled.  Citizens United set off a torrent of outrage, culminating in the high drama of the president (a constitutional law professor, lest we forget) condemning the court in the State of the Union for opening 'the floodgates for special interests ~ including foreign corporations ~ to spend without limit in our elections.'  Anger spanned the political spectrum (80 percent were opposed shortly after the ruling, 65 percent 'strongly') and helped spark the Occupy movement."

The authors suggest four options for putting elections back into the hands of the voters.  You can click on the article link for details ~ here is the list.

  • A constitutional amendment (passed by two-thirds majorities in both houses and ratified by three-fourths of the state legislatures) clarifying that corporations are not the same as people and money is not the same as speech.  A long shot.
  • SCOTUS deathwatch ~ waiting for a conservative Supreme Court justice or two to die, and replace them with more moderate justices, while retaining Democratic control of the House and Senate.  A long shot.
  • Through legislation or the courts, introduce financial transparency, disclosing the sources of all campaign contributions.  Possible.
  • Taxpayer-financed campaigns ~ public financing is most influential in local and state elections.  But today's state senator is tomorrow's U.S. legislator.
Bad law is not without redress ~ if voters shame their elected representatives into declining the big money of Wall Street (or vote them out of office in the next election).  It is not news that we have been shifting from a democratic republic into an oligarchy for years.  Citizens United hastened that shift.  The Occupy movement and other voters and consumers groups resist it.  We are living squarely within the ancient Chinese curse ~ "May you live in interesting times".

No comments:

Post a Comment