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State Taxes & Prosperity

Supreme Court Ruling Constitutes Abuse of Democracy

February 1, 2010

For more than 100 years, congresses, presidents and successive configurations of the Supreme Court held a central truth about American electoral politics: Democracy was not for sale to the highest corporate bidder. New loopholes were invented. Loopholes were closed. Democracy was the treasured possession of the American people.

Then the occupant of one chair changed and so did that central truth. Sandra Day O’Connor out, Samuel Alito in. The Federalists on the Court applied a new “strict construction” and a new property right was found: the right to own American electoral politics. That’s what I call power, Mr. Alito.

The narrative that describes the U.S. Supreme Court’s decision in Citizens United v. F.E.C. as the liberation of the First Amendment is built on two radical metaphors: money is speech, and corporations are persons. Neither is true. Handing corporations the unlimited right to finance a marketing campaign for someone running for public office is no celebration of the First Amendment. It is simple abuse of democracy.

Citizens United is a case where plaintiffs sought relief from overreach by the Federal Election Commission that prevented on-demand cable distribution of Hillary: The Movie, a feature film designed to define Hillary Clinton as an unsuitable presidential candidate in the 2008 primary season. Plaintiffs also challenged disclaimer and disclosure requirements as chilling of free speech.

In a towering display of judicial activism, the Court’s majority turned the case into the more sweeping question of whether corporations have a right to spend as much as they like in political campaigns. In a bitterly divided 5-4 decision that showed no deference to the other two branches of government or stare decisis, the Roberts Court devalued your citizenship and America’s claim to be a government of, by and for the people.

Remarkably, in writing for the Court’s majority, Justice Anthony Kennedy asserted that independent expenditures in political campaigns have no corrupting effect on politicians’ conduct. This is the same justice who wrote last year in Caperton v. Massey Coal Company that independent expenditures by an entity called “And for the Sake of the Children” in support of a West Virginia Supreme Court justice’s election campaign constituted an appearance of bias that required the beneficiary justice to disqualify himself from an appeal involving the person who put the money into the dummy organization that did the campaign talking.

Maybe Kennedy sees courts differently, or perhaps it depends on how you define corruption, but it’s hard to imagine that the promise, or threat, of a $10-million campaign ad blitz won’t be enough barter to win a vote to sole-source a government contract, plant a budgetary earmark or kill a public health regulation. Isn’t that corruption?

This issue matters because the brute force of money drives election outcomes. In the 2008 Michigan House elections, 104 of 110 winners had more financial backing than their opponents. In the most competitive contests, the financial advantage was typically provided by a third party making independent expenditures. Those independent expenditures were made by PACs or party committees that disclosed their contributors, not advocacy corporations that provide anonymity for their contributors. Such corporations have now been invited to throw all the weight that they can in future campaigns.

In some respects, this horse left the barn in Michigan $50 million ago. Since 2000, candidate-focused television issue advertisements have been a staple of our gubernatorial and Supreme Court election campaigns.

The prevailing interpretation of the Michigan Campaign Finance Act says that these advertisements aren’t campaign expenditures because they don’t explicitly tell you how to vote, so the financial accounting for these ads doesn’t exist in the campaign finance reporting system. Invariably, these ads attack because it’s easier to drive your opponent’s negatives than your candidate’s positives.

You know the themes: enemy of working people, soft on crime, unqualified for the bench, asleep on the bench, and so on. These anonymous assaults are the campaign equivalent of drive-by shootings, and that’s the quality of information you’ll see in greater abundance in our brave new world.

We can take some solace from the Court’s 8-1 decision in Citizens United that campaign disclosure requirements are not unconstitutional. With spending restrictions gone, transparency is the public’s only asset in the marketplace of campaign ideas; to evaluate campaign communications in light of their source.

However, like everything else, the devil is in the details. Will we be limited to knowing the name of a shell corporation that exists for the purpose of shielding donors’ identities? Will we be allowed to know who is giving the money that’s doing the talking? We will see.

The Michigan Legislature has a chance to bring some measure of integrity to state political campaigns, or it can sit idly and surrender to unlimited, unaccountable corporate abuse of democracy. The state desperately needs new laws to require meaningful disclosure and regulate campaign coordination. Are our elected representatives up to the challenge? We will see.

Rich Robinson is executive director of the Lansing-based Michigan Campaign Finance Network, a nonpartisan, nonprofit coalition of organizations and individuals concerned about the influence of money in politics and the need for campaign finance reform in Michigan.

January 28, 2010 · Filed under Extra Points Tags: , , , , , , , , ,

30 responses so far ↓

  • 1 Chuck K // Jan 28, 2010 at 10:56 pm

    Well written, Mr. Robinson!
    I can only add that I think the unlisted ingredient is what the recipe readers on the court can’t quite get – that ingredient, contained in the ninth amendment, is the dual rights of fair elections and fair contests for office. Without them and the right to vote, the government responsible for protecting the rest of our rights ceases to function in that manner, and instead enforces what the wealthiest few want. So before unlimited press and unlimited speech, comes the protection of fair elections – including fair contests. I just wonder sometimes, what do those five justices think the ninth amendment is really for? The right to create corporations??

  • 2 Dave Lambert // Jan 29, 2010 at 8:31 am

    During arguments in front of the Supreme Court, the question was asked that if the FEC felt comfortable banning political films financed by corporations, would it also be fine with banning political books financed by corporations? The Justice Department’s attorney answered yes, the government did have the power to prohibit the publication of a book. Wow, talk about censorship! That response by the Justice Department should alarm every American who cherishes our Constitution. If you really want to reduce money in election campaigns, reduce the intrusive reach and power of government.

  • 3 Dennis Muchmore // Feb 17, 2010 at 3:32 pm

    Outside of all the hue and cry over the ruling, the fundamental question remains, what does this really do. I submit as a practical matter it does very little except recognize a practice in corporations and unions that has gone unabated since I’ve been in Michigan.

  • 4 Mark E. Ross // Feb 19, 2010 at 11:08 am

    What is amzing to me regarding the hue and cry that the Supreme Court’s decision somehow is the deathknell to fair elections discounts the ability of an individual to examine the claims made on behalf of any candidate for themselves.
    No matter how much money is poured into a campaign one thing remains constant: the truth about a candidate’s record is what it is.

  • 5 Steven Caster // Jul 1, 2010 at 10:42 am

    Mr. Rich Robinson, you are in error in at least two legal areas. First, corperations have the same Rights as Persons. Second, in this instance money is “speach”. And corperations have the Right to be heard just like any other person… I may not agree with how this issue effects the political process or how it limits my voice over a coperation. But the Supreme Court was correct in it’s interpritation of the 1st Ammendment. We are going to have to level the playing field by some other means. There have been some much needed corrections done by the Supreme Court lately, and they are on a roll.

  • 6 Steven Caster // Jul 1, 2010 at 10:53 am

    Chuck K: Elections have never been all you think they should have been. In the 1800’s votes were bought and sold for .50 cents. You can buy votes today in most areas of the country if you have enough money. In a perfect world one vote for one person would be the general desire, but communications through media costs a good deal of money, and will go up not down. So our expectations have to be real, and leave room for Free Speach… you don’t have to listen to what they say, and you can check who is making the statement at the end of the advertisment.

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