Note: In trying to delete a spew of spam comments, I actually deleted several posts. Here is the most recent (actually posted about a month ago):
Many good posts in the EI forum on Thursday's Supreme Court ruling for Citizens United v. FEC (Federal Elections Commission), which i try to incorporate into this summary of the ruling and its implications.
Citizens United (CU), an ideological organization[1] that produced an anti-Hillary Clinton documentary, wanted to air and make the video available for free during the 2008 presidential primary season. They couldn't because the 2002 McCain-Feingold act barred some corporate-funded television broadcasts in the 30 days before a primary election. In a 5-4 decision, the court went way beyond what the specifics of the case, striking down more than 100 years of campaign-finance law including any use of corporate treasuries for campaigns, which Justice Anthony Kennedy called a "classic example of censorship," [2]
Temple U. law professor David Kairys, writing for Slate,points out legal flaws in the Supreme Five's argument, which
... depends on two legal
theories...: money is speech and corporations are people. Both theories
are strange, if not simply wrongheaded—why, according to the
Constitution or common sense, would money be speech or corporations be
people? The court has also employed theories not uniformly but, rather,
as constitutional cover for dominance of the electoral system by
corporations and by the wealthy....
... We limit speech—when it has nothing to do
with wealthy people spending money—in many ways... You famously can't
shout fire in a theater. You not-so-famously can't break the theater's
rules, including rules about speaking... Conservative justices dominating the court
have also limited speech rights for demonstrators, students, and whistle
blowers. They have restricted speech at shopping malls and transit terminals.
Taken as a whole, ... [they have] enlarged the speech rights available to wealthy
people and corporations and restricted the speech rights available to
people of ordinary means and to dissenters. [3]
The ruling has generated an extraordinary outpouring of shock and outrage, with hundreds of editorials and a sharp reaction from the President.[4] At EI, we're hardly surprised by anything the Supreme Five do and say, least of all faulty logic, faulty procedure (the judicial overreach which Justice Stevens' 90-page dissent bitterly criticizes) or unabashed anti-democratic action. But some aspects of this ruling make it particularly demonic, and correspondingly offer some opportunity to those who would fight back.
The demonic is not the anticipated opening of corporate coffers and the resulting inequality in election resources [5] (corporations already own the media, most politicians and, beyond that, the nation's election machinery); but rather three particularly noxious implications above and beyond.[6]
Noxious implication #1. Legal principles apply forever and broadly and the CU case put forth a watershed new principle of radical corporate
personhood.
An apparent glimmer of hope in the ruling was that at least corporate donations would be out in the open. But the CU case was manufactured as part of a larger 10-year quest to end all spending rules for campaigns, and next up is rolling back the disclosure rules.[6, 7]
Noxious implication #2. Unlimited war chests serve as unspoken THREAT and DETERRENT
The deterrent is the rational calculation of the politician that there are "war chests" out there not only for the other party but also for third party corporations. For example, big pharma can now attack with unlimited funds, anyone
who, say, pushes for bulk purchases of drugs to get a better price for
consumers and taxpayers. (cooperatives under the new health bill are criminalized and subject to being shut down
by the feds without notice). How many politicians -- or the rest of us -- can survive multiple million dollar attacks?
US politicans are already controlled by some big carrots and big sticks.
Big Carrot: Serve us well and enjoy a secure political career, and when you're ready to cash in, join us on our Boards of Directors
Big Stick: Threaten our interests, and you're in for a bad fight. We coopt your colleagues and support any and all challengers. No job security, no plush retirement, and almost certain defeat in the legislative chamber.
But corporate sticks, big and bad as they were, have now morphed into
the political equivalent of Nuclear Weapons.
New Nuclear Stick: Threaten our interests, we destroy you. And all in a quixotic (i.e., losing) effort because there is zero
chance that a majority of your colleagues will be equally foolish
And the really beautiful part is for orporations is they need never speak the threat or spend the money. The carrots and sticks serve as unspoken message to all politicians, effectively putting them firmly under their corporate master's thumb. Moreover, adding up total money spent will not properly quantify the effect; every politician knows which corporations would be gored if he or she were foolish enough to try to regulate in a certain area. And there need never be a quid pro quo -- no bribe, no physical evidence of unseemly behavior. Politicians understand all too well: act foolishly, you're gone; play ball and take a seat at the richest, most elite club in the world.
Noxious implication #3. Last minute million dollar attacks undermine the last remaining public check on election-fixing
Last minute torrents of cash like those that purportedly changed the calculus in the MA Senate election (Brown received over a million a day the last ten days -- more, even than he was able to spend) increases the margin of plausible cheating people will believe and not investigate. With exit polls discredited (however wrongly), pre-election telephone polls are the only remaining public check on election-fixing. But now, what does even a ten percentage point lead in the polls mean? So even if all that money spent in the last days of a campaign doesn't change a single vote, it makes our
election investigation task still more impossible. Evidence is even less likely to get
any traction than before because anyone can believe that the influx of millions of dollars swayed voters in the final days.[6]
Threats, however, are almost always accompanied by opportunity. I note again the widespread shock and dismay this ruling has provoked. Even if we understand it as but one more in a long series of events permitting consolidation of corporate control over both elections and the media, it may be a wake-up call to others, and thus provides the chance that they may hear us out. And judging from the President's reaction, it may also well be a wake up blow to politicians. They may well understand that if they want to retain any last shreds of dignity, decency and independence, this may be their last chance.
References:
[1] In June 2004, CU tried to block distribution of Michael Moore's film Fahrenheit 9/11, filing a complaint with the FEC claiming that the movie violated federal election law: Susan Jones, "Michael Moore Film Violates Campaign Finance Law, Group Alleges," (formerly Conservative News Service; now Cybercast News Service, June 23, 2004.
[2] Money Grubbers: The Supreme Court kills campaign finance reform. By Richard L. Hasen, Slate, January 21, 2010; Justices Turn Minor Movie Case Into a Blockbuster By ADAM LIPTAK, NY Times, Supreme Court Memo, January 23, 2010
[3] Money Isn't Speech and Corporations Aren't People: The misguided theories behind the Supreme Court's ruling on campaign finance reform. By David Kairys, Slate January 24, 2010
[4] President Obama slams Supreme Court's 5-4 ruling to throw out prohibitions on campaign ads. Celeste Katz, NY Daily News, January 24, 2010
[5]
Nevertheless, a nice perspective on this:
Big biz needed no help in election game Mitch Albom, Detroit Free Press, January 24, 2010
[6] Thanks to posts by election attorney Paul Lehto for these arguments; see also his articles,
Supreme Court De-Regulates Corporate Campaign Donations; Corporate Rule Now Unmasked, Open & Notorious. Paul Lehto, OpEdNews. January 23, 2010
[7] The court also agreed last week to hear CU’s attorney's next appeal:
seeking to prevent the public release of the names of people who signed
a Washington State petition opposing same-sex marriage, on the ground
that gay rights supporters might harass them. A Quest to End Spending Rules for Campaigns by DAVID D. KIRKPATRICK, NY Times, January 25, 2010; Citizens United used 'Hillary: The Movie' to take on McCain-Feingold by Philip Rucker, Washington Post , January 22, 2010; C08
