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Citizens United vs. the Federal Elections Commission

 

written by Jane Edwards

“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. As the result of the (Civil) War, corporations have been enthroned. … An era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people… until wealth is aggregated in a few hands… and the Republic is destroyed.” – Abraham Lincoln, 1864

“This is a government of the people, by the people, and for the people no longer. It is a government of corporations, by corporations, and for corporations.”  – President Rutherford B. Hayes, 1876

“The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.”  –Justice Stevens, on Citizens United vs. FEC, 2010

Shortly before the 2008 election, a conservative non-profit group, Citizens United (CU), released a film called “Hillary: The Movie.” It was a 90-minute anti-Clinton film jam-packed with unsubstantiated and discredited smears designed to sway viewer’s opinion against Clinton and impugn her character ahead of the presidential election.

Existing federal law, the Bipartisan Campaign Reform Act of 2002 (BCRA – also known as the McCain-Feingold Act, the 2002 statute that tried to limit the influence of big money on elections), prohibits corporations and unions from spending their general treasury funds on speech that expressly advocates the election or defeat of a candidate (“electioneering communications”.) “Electioneering communication” is “any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office, is made within 30 days of a primary election or 60 days of a general election, and is publicly distributed.”

CU, fearing that their movie left them vulnerable to BCRA’s sanctions, sought an injunction against the Federal Elections Commission (F.E.C.)  in federal district court, arguing that portions of BCRA were “unconstitutional” as applied to their film. The federal court of appeals sided with the F.E.C., finding that the movie was nothing more than an effort to “inform the electorate that Senator Clinton is unfit for office.” The court denied CU’s motion and granted summary judgment to F.E.C.  Citizens United appealed to the Supreme Court (SCOTUS).

CU claimed on appeal that 1) BCRA’s prohibition on corporate independent election expenditures was unconstitutional as applied to their film, and 2) Also, BCRA’s disclaimer, disclosure, and reporting requirements were unconstitutional as applied to the film. CU simply sought a judgment that BCRA did not apply to documentaries shown through video on demand.

That, in a nutshell, is it – those were the two issues SCOTUS was asked to rule upon. There was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. All CU asked for was a ruling that the law did not prohibit this particular documentary by this nonprofit corporation during these thirty days.

If the Justices had limited their review of the case as suggested above, today Citizens United might well be forgotten—a narrow ruling on a isolated facet of campaign-finance law.  But, for reasons beyond my understanding, Chief Justice John Roberts became inexplicably obsessed with the case before him. He just couldn’t leave it at that.  Justice Roberts asked CU to return at a later date with a complaint crafted by none other than Justice Roberts himself.

Here is an article, http://www.newyorker.com/magazine/2012/05/21/money-unlimited, that tells the story of how the aggressive conservative judicial activism of the Roberts Court twisted what should have been an unremarkable, obscure case into one that would elicit a ruling that forever changed the landscape of American campaign finance.

The majority opinion, written by Justice Anthony Kennedy, and joined by Chief Justice John Roberts, Justices Justice Antonin Scalia (fierce advocate of unfettered campaign-spending), Clarence-the-Silent Thomas (preserving his years-long contributions of ****-all to the Court’s debates,) and Samuel Anthony “Business-or-Bust” Alito, Jr., said the government has no business regulating political speech. They said that a corporation’s First Amendment rights trumped any apprehension that money could have a corrupting effect in politics.

The minority, led by Justice Paul (Yoda) Stevens, joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, said that allowing corporate money to flood the political marketplace would corrupt democracy, arguing that the court was wrong to allow unlimited corporate spending; that corporate spending posed a particular threat to democratic self-government.

In the end, SCOTUS’s ruling on CU vs F.E.C. struck down all campaign financing laws related to corporations and unions.  These laws had previously banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. Incredibly, Kennedy’s opinion expressly states, “favoritism and influence” are unavoidable in a representative democracy, and, “It is well understood that a substantial and legitimate reason, if not the only reason … to make a contribution to one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors”.  Well, that about says it all. Need a vote? Show me the money!

The unchecked injection of massive amounts of money into political campaigns has an undeniably corrosive effect on our democracy – diminishing the principle of “one person, one voice, one vote.” Depressingly, the Supreme Court demonstrates, over and over again, a willingness to empower corporations at the expense of individuals, whose issues and voices continue to go unheard.

During his 2010 State of the Union Address, President Barack Obama expressed his concern over the Supreme Court’s decision saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.” President Obama also called the decision, “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

Now, the Unintended Consequences: A super-PAC can raise funds from both individuals and corporations, with few restrictions. It can pool an unprecedented amount of money in one place. It can collaborate with other nonprofits, including other PACs supporting other candidates. It can broadcast almost any form of political speech using any technology virtually at any time. And, although the CU v. FEC ruling allows for legislatures to pass laws requiring greater transparency in campaign donations, Congress has yet to pass any such laws.

It is increasingly easier for potential donors to keep their identities obscured.  That includes foreign donors, like Russia and Russian/Ukrainian oligarchs. Perhaps this is how Donald Trump could “self-finance” his campaign for the Presidency of the United States. 

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