By Fred Wertheimer - 02/07/12 01:01 AM EST
The Supreme Court’s disastrous decision in the Citizens United case has done enormous damage to our political system.
In striking down the ban on expenditures by corporations in elections, the high court, along with subsequent lower court decisions, has opened the door wide for the super rich, corporations and other groups to pour unlimited money and secret contributions into federal elections.
While much has been written about the Citizens United decision, little if any attention has been paid to statements written by Justice Anthony Kennedy on behalf of the court majority that reveal the decision is even more radical and extreme than has been realized.
Statement No. 1: “Limits on independent expenditures, such as [the ban on corporate expenditures] have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question.”
This is a remarkably dangerous and misguided position.
Justice Kennedy is asserting that the foundational need of our nation to be protected from the corruption of our government is outweighed by the constitutional right of a corporation to make unlimited expenditures to influence elections.
This is an absurd position. It cannot be the case.
In a numerous earlier decisions, the Supreme Court established that the goals of deterring corruption and the appearance of corruption provide a sufficient constitutional rationale to uphold campaign limitations. But here, Justice Kennedy writes that the right of a corporation to make campaign expenditures trumps that anti-corruption interest and cannot be limited even if it prohibits the country from taking steps to protect itself against government corruption.
Corruption has brought down empires, democracies, governments and political systems. The Founding Fathers did not leave the new nation they created unable to protect itself from corruption in order to ensure an overriding right for corporate speech.
Statement No. 2: “That speakers may have influence over or access to elected officials does not mean that those officials are corrupt … .”
What Justice Kennedy is really saying here is that it is perfectly acceptable for wealthy individuals, corporations and other special interests to use campaign money to buy “influence over or access to” our elected representatives.
The idea that buying access and influence does not have a corrupting effect on officeholders is nonsense. It is alien to our representative form of government. You will not find a place in the Constitution that says the wealthy and powerful are entitled to obtain more influence with the nation’s elected representatives than the rest of us by purchasing that influence.
But the five justices who voted for Citizens United reject the idea that buying and selling influence is a problem and that it will have a corrupting influence on officeholders.
They are dead wrong on both accounts.
Statement No. 3: “And the appearance of influence or access, furthermore, will not cause the electorate to lose faith in this democracy.”
This naïve and completely undocumented position boggles the mind.
Justice Kennedy provides nothing in the Citizens United opinion to back up his bald assertion, which contradicts numerous previous Supreme Court decisions.
Until Citizens United, the Supreme Court repeatedly found that deterring the appearance of corruption is itself a constitutional justification for upholding campaign finance limitations.
The court said in Buckley v. Valeo (1976): “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical ... if confidence in the system of representative Government is not to be eroded to a disastrous extent.’ ”
In Nixon v. Shrink Missouri (2000), the court said, “Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”
Citizens United is a radical break from the past views of the Supreme Court, which repeatedly accepted the appearance of corruption as a basis for upholding the constitutionality of campaign finance laws.
These three statements by the court go far beyond the boundaries of mainstream jurisprudence and illustrate just how extreme and overreaching the Citizens United decision is.
Chief Justice John Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito have left the nation in an extremely dangerous place as we move forward to determine how to counter the effects of their destructive decision and to protect ourselves against the corruption of our democracy.
Wertheimer is president of Democracy 21.