While our backs are turned as we are engrossed with the health-care debate, there is a Supreme Court case looming on the horizon that could upend our entire political system. The Roberts court must be salivating to get the chance to help their right wing Big Corp base as they wait to render their decision on the Citizens United case which will for all purposes allow BigCorp. to dump as much money as they can into any election they want.
The most excellent Dahlia Lithwick writes:
Citizens United released the film in six theaters and on DVD, actions not subject to federal regulation. But when they sought to distribute the film by paying $1.2 million to sell it through a video-on-demand service, the Federal Election Commission contended that the film was no different from the kind of "electioneering communication" regulated under the McCain-Feingold campaign finance law. That was the 2002 statute that tried to limit the influence of big money on elections. If subject to the constraints of McCain-Feingold, the film could not be financed by corporate treasuries or broadcast within 30 days of a primary or 60 days of a general election. The federal court of appeals agreed with the FEC, finding that the movie could be interpreted as nothing but an effort to "inform the electorate that Senator Clinton is unfit for office." Citizens United appealed.
In Bush v Gore, the United States Supreme Court, in an unprecedented ruling that proclaimed it should not be used as precedent, decided the 2000 presidential election by a 5-4 decision. Bush v Gore stands as one of the most legally dishonest and the most politically partisan opinion ever issued by the Court.
That is, until the Court hands down its decision in Citizens United v Federal Election Commission, involving a ruling by the FEC that barred a rightwing hit group, partially financed by a corporation, from running a hatchet-job film about Hillary Clinton in the days prior to an election in violation of the McCain-Feingold law.
By another 5-4 decision the Supreme Court will effectively turn the United States government over to corporations, i.e., back to the Republican Party, this time for keeps. The major corporations -- total profits of more than $600 billion per year for the top Fortune 100 -- will be permitted to advertise without limitation in Congressional, Senate and Presidential elections.
Moreover, corporations often have foreign shareholders. Although barred as individuals from participating either through financial contribution or voting, foreigners will now be able to use the corporate fiction of a 'legal person' to influence profoundly the outcome of US elections.
The Supreme Court will soon allow corporate profits to be spent without limits to "preserve, protect and defend" not the Constitution, but those profits.
Swiftboats will be the fastest growing industry in the United States.
Sen. Dick Durbin is saying that if the Supreme Court rules in favor of Citizens United, that prove the catalyst for creating new campaign-finance legislation:
As a Supreme Court decision that could weaken campaign finance laws looms, Sen. Richard Durbin, D-Ill., said that a ruling giving an upper hand to corporations and labor unions could be the catalyst needed to pass election-reform legislation.
He and Rep. John Larson, D-Conn., spoke at a Center for American Progress event on Friday to promote their legislation, the Fair Elections Now Act, and discuss the impact of the pending decision in Citizens United v. Federal Election Commission. That decision could open the door for unrestricted spending on campaign advertising. "It takes a major scandal to create a major reform," Durbin said. "I don't know that we've reached the level in the Senate or in the nation where people are going to demand this of us.... But if they think that the Supreme Court has tipped the scales so dramatically that they don't have a fighting chance any more, they may be open to this.
Do we really want that to happen? No, the Court must not rule in favor of the wingnut film makers. Something will have to be done, because a single corporation could bully any member of the House or Senate to vote for their profitable benefit or they will unleash their pocketbooks against them and that is a nightmare scenario.
Paul Abrams suggests that we write letters to Justice Kennedy and Alito, which is a worthy endeavor if you wish to partake. The letter is below the fold.
Re: Citizens United v FEC
Dear Justice Kennedy (or Alito):
I write out of deep concern for the future of our democracy. I understand that you are about to decide Citizens United v FEC to free corporations from the restrictions of the McCain-Feingold Campaign finance law on the basis of a finding that corporations are 'legal persons' and thus entitled to First Amendment protections just like natural persons.
To do so you will ignore the principal of stare decisis, as well as the original intent of both the First Amendment and the purpose of creating a corporation. Have the restrictions on corporations been so obnoxious that they warrant those departures?
There is nothing in the Constitution suggesting that 'unnatural' persons are entitled to such First Amendment protections. It is perfectly plausible and Constitutional to create an 'unnatural' person for certain limited purposes, such as commerce, without providing that 'unnatural' person all the rights and privileges of a natural person.
The original intent of the corporate structure, and the creation of the "legal person", was purely for commercial purposes. The original intent of the First Amendment was to provide citizens protection against government prohibitions of speech, worship and assembly.
Your colleague, Justice Scalia, proclaims his fidelity to the original intent of the drafters. Yet, he seems to be prepared to override original intent both of the corporate entity and the First Amendment.
A corporation is not 'merely' an association of persons. It is a commercial entity, with fealty to its shareholders who may be all over the world. It pursues the interests of those shareholders, not of our communities. Time and time again, when the choice is between country or community vs the corporation, corporations choose their own self-interest.
President Eisenhower warned us about the power of the military-industrial complex. President Roosevelt spoke of economic royalists that had brought the country to near-ruin. President Kennedy told the nation about a tiny handful of steel executives acting with utter contempt for the interests of the country.
The political economist John Kenneth Galbraith described one of government's roles to be a 'countervailing power' to big corporations to protect individual citizens. If those corporations can nonetheless buy the government, there will not be much 'countervailing' occurring. The disastrous Bush Administration unilaterally surrendered to corporations and the result was devastating the hopes, dreams and savings of at least one generation of Americans and perhaps two.
So, please, Mr Justice Kennedy, do not think of corporations abstractly as 'mere' collections of people, because they are not abstractions. They are very real, very powerful, and have already used their political and economic power to overwhelm the voices and interests of the American people.
That was not the original intent of establishing the legal structure of a corporation. It was not the original intent of the First Amendment to protect 'unnatural persons'.
Regulating corporations' political speech does no violence to the Constitution. De-regulating it does.
Moreover, once de-regulated, the power corporations wield will prevent any subsequent 'correction'. Once done, it is forever; forever is a long, long time.
Please, therefore, give a sober second-thought to what you seemed poised to do. That is, after all, what a Supreme Court Justice is supposed to do.