Supreme Court Unleashes Corporate Cash to Influence Elections

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Related subjects: Global, J.E. Robertson, Judicial Rulings, L'accés: Society of Access, Rights & Freedoms, The Vote, U.S. Elections, U.S. Law, U.S. news, U.S. Politics Comments (3)

22 January 2010 :: J.E. Robertson

Truth-First.com :: The Supreme Court of the United States has taken a special interest in the case Citizens United v. Federal Election Commission, which regards the claim that campaign finance regulations limiting the amount an entity can donate to a political party are an infringement on freedom of speech. Yesterday, the Court issued a 5-4 ruling against those campaign funding limits that is now expected to unleash a wave of virtually unlimited corporate funding for political campaigns. Numerous observers have claimed the integrity of American elections would be threatened.

The LA Times has put its report on the situation succinctly:

Overturning a century-old restriction, the Supreme Court ruled Thursday that corporations could spend as much as they wanted to sway voters in federal elections.

In a landmark 5-4 decision, the court’s conservative bloc said that corporations had the same right to free speech as individuals, and for that reason the government could not stop corporations from spending to help their favored candidates.

This ruling is one of the most radical departures from tested precedent on campaign finance law the nation has ever seen: it allows corporations, unions and any other entity that wishes to spend unlimited sums of capital to run ads, produce films, potentially to take over newspapers and radio stations, with the express purpose of influencing voters’ views in an election year.

The philosophical conflict, between citizens’ rights and the argument for corporate equivalency, goes back to the founding of the republic, and a very real, very heated dispute over the issue between Thomas Jefferson and Alexander Hamilton. Jefferson believed that human individuals were the only true citizens and that corporations could only function as activities or concerns relating to human individuals, whereas Hamilton argued that corporations should have the same rights any human individual would have, an idea known as “corporate personhood”.

Jefferson believed such a standard would pose a serious and direct threat to a national democratic process of government. As RepublicSentry reports:

President Thomas Jefferson said, “I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country.” Jefferson even went so far as to suggest that banning monopolies in commerce should be written into the Bill of Rights. In 1787 when James Madison sent the first draft of the new Constitution to him, Jefferson noted in a letter that he would “insist on annexing a bill of rights to the new Constitution, i.e. a bill wherein the Government shall declare that, 1. Religion shall be free; 2. Printing presses free; 3. Trials by jury preserved in all cases; 4. No monopolies in commerce; 5. No standing army.”

Yesterday’s Supreme Court ruling is a clear victory for the side argued by Hamilton, that corporations were necessary both for the sustaining of a national order and for reining in the potential excesses of democracy of the people. Hamilton famously viewed the general public, the electorate, as “the mob at the gate” [PDF], and advocated for the virtues of a system in which the concentration of economic power would serve as a safeguard against what would later come to be called populism, demanding the good of the people be first among all civic virtues.

It is difficult to justify any attempt to separate the logic of yesterday’s ruling from the logic of Hamilton’s view that true open democracy is dangerous and needs to be kept in check by some established power. In fact, the logic of the ruling is essentially that power has an inherent right to be exercised, wherever and however it exists. The right of the people, or of the people’s government, to establish rules that protect the speech of individuals against the encroachment of billion-dollar interests, is simply not recognized.

The ruling also provides no means of safeguarding against the misuse of funds deployed to sway elections for overtly false propaganda. This point has long been the basis for even conservative and pro-business interests’ concerns about allowing unfettered corporate spending in elections: potentially, a single interest or a concentration of interests could spend enough to effectively “crowd out” any reasonable discussion of the facts of an issue, depriving the entire country of the right to reliable information on a given subject of relevance to an election.

In what some critics argue is evidence of an increasingly activist pro-corporate conservative wing of the Court, the majority actually issued a ruling far more expansive than would be permitted by the specific facts of the case. According to Bloomberg News:

The ruling went well beyond the circumstances in the case before the justices, a dispute over a documentary film attacking then-presidential candidate Hillary Clinton.

“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice Anthony Kennedy wrote for the majority. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

The logic is so far-reaching, some critics say it amounts to a comprehensive reversal of the legal meaning of the First Amendment. While Justice Kennedy writes “The First Amendment confirms the freedom to think for ourselves”, the logic of the ruling appears to follow an entirely different line of reasoning: the individual, Kennedy argues, has a Constitutional right to be influenced by sources whose information cannot be properly sourced, whose reliability is fundamentally dubious —the information is designed to sway the voter—, and whose message is informed by a for-profit agenda, but no Constitutional right to any actual use of the media where that information is found.

The ruling is, in fact, so contrary to the facts of judicial precedent, existing law, and even the very Constitutional principles it cites, that Justice John Paul Stevens’ 90-page dissenting opinion almost ridicules the majority for what appears to be a biased ruling. He writes: “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

The ruling also specifically overturned a key provision of the 2002 McCain-Feingold campaign-finance reform law, which precluded corporate or union spending in the weeks leading up to an election, where that spending would be used to make claims about a candidate for federal office. The ruling actually flies in the face of Supreme Court precedent: in 1990, the Court ruled that corporations can be barred from using their money to fund campaign advertisements.

The ruling cuts to the heart of the question of efforts to prevent “electioneering”, the use of private money to alter public perception in a bid to influence the outcome of an election, with the aim of financial gain from the results. The McCain-Feingold Act specifically took on this problem, and the 1990 Supreme Court ruling operated on the reasoning that such actions were fundamentally inappropriate under the US Constitution.

Chief Justice John Roberts and Justice Samuel Alito, known for their controversial adherence to a political philosophy known as “the unitary executive”, which holds that the executive branch of government has an inherent legal right to redefine any law at any time according to its mandate to govern under the Constitution. The unitary executive theory limits the degree to which individuals or individual speech, or even the judiciary itself or the Congress, have any right to use the Constitution to curb the use of power.

Some critics have argued that association with this radical doctrine, which finds little support in the Constitution or in judicial precedent, would make Roberts and Alito unfit to serve as justices on the Supreme Court, and that they would use their position to undermine legal protections that benefit the individual in the struggle against the expanding power of special interests, corporations being seen, for instance, as inherently “useful” to the needs of an “effective” executive administration.

That view is considered extreme by some Court watchers, who cite the majority nature of the ruling, and its being written by Justice Kennedy, considered the most moderate of the conservatives on the Court. But the language of the ruling holds the hallmarks of the often incoherent legal philosophy espoused by Justices Alito and Roberts, and happens to be the kind of sweeping judicial cutback both men had professed interest in before joining the Court.

There is also an unfortunate image conflict for the Citizens United v. FEC case, which though brought by a group called Citizens United actually imposes strict new limits on the government’s ability to protect the electoral interests of actual citizens. That inconsistency rings of the tactics of political action committee (PAC) politics, where sometimes shadowy groups formed around “common interest” raise money and stage political campaigns designed to aid candidates, parties and causes, without the constraints of the party-based political system.

By opening the door to unlimited corporate donations to PACs, the Supreme Court has essentially given billion-dollar corporations control of the airwaves during election cycles: reporting from the Center for Responsive Politics has found that “During the 2008 election cycle, the political action committees of business interests contributed roughly four-and-a-half times as much to candidates and parties than their labor counterparts, and nearly five times as much as ideological PACs.”

Such figures are worrying during any election cycle, but by stripping the most meaningful curbs on campaign spending from the McCain-Feingold legislation, the Supreme Court’s corporate cash ruling means the expenditures relating to such PACs may now explode to unprecedented levels. While some have cited the overwhelming success of Pres. Obama’s grassroots political campaign and its fundraising records as evidence money can speak for the people as well, it’s important to note that no other candidate in history has been able to build that kind of campaign, and with interest groups able to spend without limit, it will be far more difficult in the future.

The Center for Responsive Politics is hoping its OpenSecrets project will not only help to create an atmosphere of transparency in electoral politics and campaign spending, but might also function as a watchdog social network, where information sharing and crowd-sourced research across multiple media platforms, will be able to track spending abuses and dissuade politicians from seeking or accepting assistance from financially interested donors and PACs.

The Citizens United ruling is being called everything from scary to apocalyptic; some critics do believe it may pose an existential threat to the relative open democracy we have, until now, taken for granted. One way in which this may be true is the fact that so many of the wealthiest corporations operating in the US are actually partially or even majority foreign-owned. As Jason Linkins reports for the Huffington Post:

A very large percentage of U.S. corporations are owned by foreign persons or entities. In 2006, USA Today reported: “Nearly one in five U.S. oil refineries is owned by foreign companies. Foreign companies also have a sizable presence in running power plants, chemical factories and water treatment facilities in the United States.” It was also reported that, “Roads and bridges built by U.S. taxpayers are starting to be sold off, and so far foreign-owned companies are doing the buying.” In 2008, it was reported that foreign ownership of U.S. companies “more than doubled”between 1996 and 2005. To get a fix on the spending power, consider this: “The total receipts of foreign-owned companies were $1.7 trillion in 1996 and just $39 billion in 1971.”

While saying he does not seek to play on xenophobic reflexes, Linkins explains that “The idea of foreign persons or entities seizing — by judicial fiat — such a dramatic advantage in terms of influence over the American people seems to me to be, as they say, less than ideal.” It is unclear whether a Congressional challenge to this ruling might hold up, on the grounds that it seeks to protect the electoral process against foreign interference or influence peddling.

That a Congressional challenge may come this year looks increasingly likely, just one day after the ruling. Sen. John McCain and Sen. Russ Feingold both criticized the ruling and called for action to limit big money’s influence in the electoral process. Pres. Obama said he is urging Congress to look at how it might limit the impact of the ruling on citizens’ right to access the airwaves and influence public opinion. And, there’s the widely held view that the Supreme Court deliberately abused its authority and issued an expansive, activist ruling designed to favor corporate interests.

As Greg Stohr wrote, in his report for Bloomberg, “During the first round of arguments, in March, the justices debated resolving the case along narrower grounds, possibly by carving out an exception to the electioneering law for documentary films or videos seen through on-demand services.” Despite the law’s having an opening for some non-profits, whose speech might be closely tied to the public interest, the justices could not find a way to agree on expanding that provision to fit the Citizens United case.

That so many more incremental or “non-invasive” legal remedies could have been found, if the justices really believed the Citizens United case was one where an unjust constraint on free speech had occurred, were ignored in favor of this sweeping reinterpretation of federal election law, left many on Capitol Hill concerned the ruling could undermine the integrity of the democratic process. Sen. Tom Harkin of Iowa, a Democrat, called the ruling “activist”. Sen. Harkin attacked the ruling, saying:

In overturning well established precedents and a law that has served our country well for over 60 years, the Supreme Court’s decision today is a blatant exercise of judicial activism. And it is deeply harmful to our democracy. It limits our ability to restrict the influence of special interests and to restrict the ability of corporations to use their vast resources to distort our campaign process.

Sen. Arlen Specter (D-PA) suggested a Constitutional amendment might be needed to overturn the Court’s reversal of long-standing precedent. A press release on his website yesterday said he was releasing the following statement:

This decision will revolutionize campaign financing by giving corporations enormous power in determining who will be elected to public office at all levels. Pending close study of the opinion of the Court, it appears that the only way to solve the problem created by the Court’s decision today is through the Constitutional amendment process.

Sen. Chuck Schumer (D-NY) said members of the Senate will begin looking at legislative means to overturn the ruling, or at least to scale back its overall impact on elections, and House Speaker Nancy Pelosi (D-CA) said the House would also begin to look at legislative options to counter the ruling. A Constitutional amendment would require the support of two-thirds of both houses of Congress and ratification by 3/4 of all the states in the Union (38 states).

The Citizens United case was funded in part by the Chamber of Commerce and the National Rifle Association, two groups that have long sought to secure the right for private, for-profit interests to spend unlimited amounts of money to influence the outcomes of elections. Rights groups, environmental organizations, community groups and churches, argue the ruling will all but silence their views, if multi-billion-dollar enterprises can spend freely to serve their profit motive.

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