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.