Thursday, January 21, 2010

The Court Allows a Katrina of Corporate Money

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By Mark Green

Today's 5-4 Supreme Court ruling is the second shoe to drop this week clobbering democracy. First was the combination of the filibuster's 60 seat rule and Scott Brown's election. Now the Court permits corporate money -- 17 times larger than labor money -- to overwhelm the levees of democracy.

The narrow issue in Citizens United v. Federal Election Commission was whether a group distributing a virulent anti-Hillary Clinton film in the 2008 presidential campaign ran afoul of the McCain-Feingold law's prohibition of independent expenditures just before an election. Already we have a compromised democracy when 0.1 percent of Americans who contribute $1,000 or more in federal elections have more influence that the other 99 percent. But now that the Court's conservatives bloc of Roberts, Scalia, Alito, Thomas and Kennedy allow such unlimited corporate electioneering if uncoordinated with a candidate, any corporation or trade group could threaten to spend, say, $10 million to defeat a sitting legislator if he/she didn't toe the company line.

How many state or federal legislators could stand up to a corporate lobbyist, with a history of independent ads, saying that "our people feel very very strongly about this bill" (i.e., you have a nice career and we hope nothing happens to it)?

From the start, there's been a contest between a democracy of voters and an economy of capital. In a May 1792 letter, Thomas Jefferson urged President George Washington to rally people into a party that "would defend democracy against the corrupt ambitions of monied interests." In 1904, Teddy Roosevelt was embarrassed by publicity that he relied heavily on corporate contributions to win the presidency. He was spurred to propose and enact the 1907 Tillman Act, prohibiting corporations from contributing to candidates because of the fact or appearance of purchased politicians. The law, as later amended and strengthened, was last conclusively upheld in the 1990 case of Austin v. Michigan Chamber of Commerce as the Court majority reasoned that "corporate wealth can unfairly influence elections."

Then, in the post-Watergate moment in 1974, Congress enacted a strong campaign finance law limiting and disclosing contributions from individuals and PACs. And in 2002, the McCain-Feingold law, among other things, closed a loophole that allowed companies to spend money "independently" just before elections designed to defeat targeted candidates, a provision upheld in 2003 in McConnell v. FEC.

So how did we get to the flashpoint where today's Court ignored law and overruled long-standing precedent to allow corporations again to dominate our politics? A little 
judicial history is necessary. 
In the 1886 case of Santa Clara County v. Southern Pacific Railroad Co., involving a routine local tax matter, the court reporter incorrectly put as the formal "headquote" of the decision something that was never argued or decided, namely that "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." As Thom Hartmann describes well in his book Unequal Justice, this "decision" then became to be regarded as black-letter law, meaning that, in Justice William O. Douglas's later lament, "corporations were now armed with constitutional prerogatives."

Cut to 1976 when, in a poorly reasoned decision in Buckley v. Valeo, a 6-3 Court concluded that while donations could be restricted as potentially corrupting, there should be no ceiling on expenditures since that could be like limiting speech itself -- which commentators have simplified into the ethic that money = speech.. (Really? So laws against bribery are unconstitutional because the payment of money to a decision-maker is mere speech?)

Now comes Citizen's United, where in oral argument this past June 29, an FEC lawyer gave the wrong answer to a Justice Scalia question about whether, if the FEC could ban a film that functioned as an attack ad, it could also ban a book attacking a candidate. Instead of saying that books had special first amendment protection, unlike ads in the guise of films, he answered "yes," producing gasps. The result: a decision that supports the worst aspects of Santa Clara and Buckley. Now a multi-billion, multinational corporation -- a legal fiction created in perpetuity -- is constitutionally just like a grandma on a soap box when it comes to influencing elections. Or as author David Kay Johnston nicely put it, "imagine, vocal chords on a Cayman Islands post office box!"

The conservative majority hypocritically ignores their usual complaints about activist courts overruling precedent based on their preferences -- recall here the confirmation hearings of Chief Justice Roberts when he said that precedent should not be overruled unless there were serious questions about whether the prior decision was arbitrary, unworkable or "eroded by subsequent developments." What subsequent developments occurred to change years of decisions?

Instead of being judicial activists substituting their judgment for several Congresses, the Court could easily conclude that, factually, it's one thing for a corporation to use money to buy another company, but quite another to buy a congressman -- one thing to finance any contributions from political action committees based on voluntary funds, quite another from general revenue that reflects not values, but merely business success. Or the Court could have ruled against the FEC on the narrower grounds that McCain-Feingold and other restrictions on corporate donations applies to political ads, not films or books.

Democratic congressional leaders and campaign finance reformers have to now immediately meet to map out a strategy beyond waiting seven years for Obama to replace a conservative justice with a progressive one. One idea is a drive for a constitutional amendment to reverse Citizen's United. But even beyond the difficulty of getting three-quarters of state legislatures to go along (see: Equal Rights Amendment), that seems untenable precisely because of the Catch 22 that business interests will be free to spend massively in ads to avoid that result. Until there's a strategic breakthrough, unions and Democrats will have to more aggressively use the Obama-Internet model to generate the kinds of small funds that collectively start to offset what business interests can and will do.

At the least, congressional Democrats need to push hard and often for legislation establishing public financing of congressional elections. Though it cannot overcome the Senate's filibuster now, a clean money bill (proposed by Senator Carl Levin) can at least draw sharp lines this Fall, forcing faux Republican populists into choosing to be on the side of big business interests or consumer interests. Let the next Scott Browns explain how they can be outsiders while encouraging big inside money.

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