American democracy, R.I.P. 1776-2010
Say goodbye to the American experiment in democracy. Thanks to the Republican-appointed majority on the Supreme Court, as of today it’s of Citibank, by ExxonMobil, and for Duke Energy.
“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” wrote Justice John Paul Stevens in the dissenting opinion. And that’s putting it mildly.
As of today, there is literally nothing to prevent Wal-mart from spending a billion dollars on a candidate it likes, or against a candidate it doesn’t like. One who favors allowing workers to unionize, for instance. Goldman Sachs could spend its entire bonus pool on defeating any member of Congress who votes for derivatives to be regulated (or bonuses limited).
That’s because of the Court’s ruling in Citizens United vs. FEC. The details of the case can be read here, but the effect is this: Unlimited campaign contributions from corporations.
Conservatives will say that unions have the ability to do the same. That’s true. But unions don’t have as much money as corporations, and they never will. In fact, corporations could buy politicians whom they’d send to Washington to outlaw unions. The reverse is impossible. (The unions would sue, citing freedom of association, but the Supreme Court, if it can overrule several longstanding precedents, fundamental principles of logic, and a century of law—as it did today—would probably just rule against them.)
Associates like Alito, and Chief Roberts, repeatedly stated in confirmation hearings their profound respect for the principle of stare decisis, or “the decision must stand.” Roberts: “If an overruling of a prior precedent is a jolt to the legal system, it is inconsistent with the principles of stability…Those precedents that were overruled [e.g., in Brown vs. Board of Education] had proved unworkable.”)
Today they were proven liars. They decided that the decision reached in a previous case, known as Austin, as well as parts of decisions that have stood for much longer, must not stand.
As Justice Stevens wrote in the dissent, the Court in the past has accepted
special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907 [and] …unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” [FEC v. National Right to Work Comm.], and [has] accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.”
The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin. Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law.
What’s their reason for making this exception? Because one of their own—the most right-wing (“conservative” is a disservice) member of the court since the 19th century, Antonin Scalia—wrote three years ago that
Austin was a significant departure from ancient First Amendment principles.
In other words, “because we said so.”
Overturning Austin, besides departing from the significant precedent it rests on, relies on the notion that the speech of a corporation is equivalent to that of a human being because a corporation can be composed of an “association of citizens.”
But a corporation can also be composed of an association of non-citizens, or of non-residents to the area whose representative it is helping to choose, or of people who do not agree with the course of action undertaken by the corporation in a particular election. Or, indeed, of any group of individuals who decides to sign a piece of paper, open a bank account, and endow it with an unlimited sum of money, which it can as of today spend on campaign commercials and donations to candidates. This the majority seems to have forgotten, or decided to ignore.
The Court did not have to rule so widely in order to decide for the appellant in this case. Citizens United is not a corporation, but a non-profit. The relevant part of the statute barred it from running what amounted to a campaign ad within 30 days of the election. It wasn’t “banned” from engaging in speech, or even this kind of speech.
The restriction was very specific, but the majority decided to reach far beyond the issues raised by this case in order to make a much broader ruling affecting a much larger class of entities. The difference is known as that between “partial” and “facial” rulings, and as Stevens noted in his dissent, “This Court has repeatedly emphasized in recent years that “[f]acial challenges are disfavored.”
So a Republican-majority court isn’t even holding to its own precedents. Its overruling itself, in this one instance, because it feels like it.
This is the definition of judicial activism, which conservatives so like to decry—as a matter of principle, they say. Except when it goes against them. Bush v. Gore was the exact same thing, as was the overturning of a 1911 Supreme Court case in 2007 and a racial discrimination case it ruled on that same year, in which it essentially said that racial discrimination in education is no longer a problem (despite mounds of data to the contrary).
The majority in the Citizens United decision, in addition to favoring both this abandonment of precedent and the belief that a corporation is human, declares its belief that restricting some forms of corporate involvement in the electoral process during certain time periods “fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process.”
How can anyone who has read a newspaper in the last forty years believe this to be true? The Senator who used to represent Washington was known as “the Senator from Boeing.”
Moreover: If there is no corruption in the electoral process, why do corporations seek to influence it? They don’t get a tax write-off, and by law they act only in the interest of their own growth, profit, and extension.
You can go one of two ways on this:
Either you recognize that corporations are influencing the electoral process—in which case, by the majority’s own reasoning, it merits restriction—or you have to prosecute any corporation that donates to candidates, or buys campaign ads, or pays a lobbyist, for wasting shareholder money. You can’t do neither.
And if speech by a corporation cannot be banned in any context, as the Court ruled today, how is bribery illegal?
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