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Citizen's United v. FEC
Saturday, 2010 January 23 - 4:46 pm
Some of you may not follow Supreme Court cases as closely as I do. Maybe you're aware of the bombshell that the Court dropped a couple of days ago, in the case of Citizen's United v. Federal Election Commission. It boils down to this: The Supreme Court has ruled that corporations are entitled to use unlimited amounts money from their general funds to finance political advertising, because (a) corporations are essentially people, (b) money is essentially speech, and (c) the First Amendment guarantees people the right to free speech.

Perhaps you have a vague sense of the implications of that, but let me lay out a few numbers for you. Exxon Mobil made $45 billion in profit last year (on $443 billion in revenue). If they spent just one percent on that profit (or just a tenth of one percent of their revenue) on political advertising, that would still be four times more money than Obama and McCain spent on their 2008 campaigns combined. That's one company, taking a tiny piece of their profits, dwarfing the combined campaign spending of two presidential candidates.

Now suppose you take the Fortune 500 list. Looking at the companies that were profitable in 2009, if they set aside four percent of those profits and put them towards political advertising, that would be enough to buy every ad spot on ABC, NBC, CBS, Fox, and CW for an entire year. All of them. EVERY. SINGLE. AD.

We're talking about a lot of money, folks. Wait until you see what happens in the next couple of elections... if you thought political ads were bad in 2008, it'll be an order of magnitude worse in 2010 and 2012.

And that's not even the worst part.

The worst part is, the Court made their decision so broad, even foreign-owned companies could create political ads, and Congress would be powerless to stop it. In one fell swoop, they've endowed corporate entities of all kinds with the same constitutional rights as individuals. According to the majority opinion, corporations are just "associations [of citizens] in corporate form". In Justice John Paul Stevens' scathing dissent, he notes:
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.
Stevens is absolutely right here, but sadly, his is not the majority opinion.

And how did the Court arrive at this crazy decision? Well, let's look at three bits of insanity from the Court's opinion.

1. Voters won't think that candidates are corrupt if corporations spend billions of dollars promoting them.
...this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.
Really? REALLY? The flood of billions of corporate dollars into campaign advertising won't seem corrupt to you and me, the voting population? Because we are so utterly naïve that we think companies won't look for quid pro quo when their favored candidates are elected to office? I guess this is the Supreme Court's way of saying, "Voters have been stupid before; why wouldn't they continue to be stupid in the future?"

2. The Supreme Court is free to pick apart precedent as it sees fit.
The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent's antiquity, the reliance interests at stake, and whether the decision was well-reasoned—counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Belotti.
They're referring to Supreme Court precedents that govern this case. Austin refers to Austin v. the Michigan Chamber of Commerce, where the Court ruled that corporations were distinct from individuals when it comes to free speech, and the Michigan government had the right to prevent companies from using general treasury funds to finance political ads. Belotti refers to The First National Bank of Boston v. Belotti, where the Court ruled that the First National Bank of Boston should be permitted to create ads about a ballot issue on an upcoming election. (The Court carefully noted that this was not a candidate election, so the odds of money becoming a corrupting influence was lower in this case.) Buckley refers to Buckley v. Valeo, a case that upheld contribution limits to campaign, but struck down spending limits by individuals and corporations.

You might think that Buckley concerns essentially the same thing as the current Citizen's United case, but it doesn't. Buckley had to do with Congress imposing overall spending limits. Current election law allows essentially an unlimited amount of political spending by corporations, as long as they finance the spending through a fund specifically designated for political purposes. That's to protect shareholders in the company, who might not all agree with the corporation's political stance, and might not want their money to go to political statements that they disagree with.

What's important here is that the Buckley and Belotti are related to Citizen's United, but they address different things. Austin, on the other hand, addresses precisely the issue at hand in Citizen's United, the issue of companies using money from their general funds to finance political ads. And Austin is the precedent they chose to override, because it wasn't "well-reasoned". Is that a new standard that the Court will use to decide in overturning precedent? In that case, thank goodness, because then Citizen's United itself will be a snap to override.

3. The Supreme Court can overturn laws even when nobody asks it to do so.
Because Citizen United's narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider Sec.441b's facial validity.
When the Court takes up issues like this, it can consider the case in two ways. One is to consider whether a law is facially invalid; that is, the law itself is unconstitutional, or in conflict with other laws. The other is to consider whether a law is invalid as applied, which means that the law can't be applied to this particular case, but the law itself isn't necessarily invalid. Judges who promote judicial restraint generally try to make as-applied rulings, so as not to completely override the legislature and re-write the law. Conversely, judges who find laws to be facially invalid are often accused of "judicial activism."

And here's the kicker: Citizen's United dropped the facial argument against the campaign finance law in its case. But the Supreme Court took up that argument again, on its own volition, because Citizen's United couldn't win the case on its other arguments.

It's somewhat ironic that conservatives, who are normally the most vocal opponents of judicial activism, are cheering the Citizen's United decision, because this is perhaps the worst example of judicial activism since Bush v. Gore. The Court went far beyond what it needed to do to decide this case, striking down a century of Congressional attempts to keep corruption out of the political arena by regulating corporate spending.

Barack Obama had this to say:
This ruling strikes at our democracy itself. By a 5-4 vote, the Court overturned more than a century of law including a bipartisan campaign finance law written by Senators John McCain and Russ Feingold that had barred corporations from using their financial clout to directly interfere with elections by running advertisements for or against candidates in the crucial closing weeks.

This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way—or to punish those who don't. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

I can't think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.
It's a sad day for democracy.

In closing, here's my bit of First Amendment protected free speech: in the opinion of this blog, Justices Kennedy, Roberts, Scalia, Thomas, and Alito are idiots and political patsies. They have no business sitting on the highest court in the United States when they only seem intent on harming democracy and promoting special interests. The country just took a step closer to idiocracy this week. You, the right wing of the Supreme Court, are directly to blame.
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Posted by Ken in: politics


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