The Judiciary

Five years after Citizens United

Five years after the Supreme Court’s decision in the Citizens United case, it is appropriate to label it for what it was: The collective judgment by the court’s majority to permanently ensconce financial elites in control of the reins of power in the United States. The fact that their decision distorted the intent of the founders of the Constitution and used a convenient reading of that document is and will continue to be a national disgrace which cannot be reversed until the current court majority is gone from office.

In Citizens United vs. the Federal Election Commission in 2010, the court’s majority argued that it was not the place of government under the First Amendment to inhibit free speech, to determine if or how speech might distort perceptions, if or how disproportionate resources (read that as money) might distort communication or the place of the legislature to determine the “fairness” of the political dialogue. These protections, it further argued, applied to associations as well as individuals. As we know, it was this finding that opened the floodgates for corporate money flowing into the political arena. Finally, the court found that these associations, while they could not directly contribute to political candidates, could certainly engage in advocacy and need not disclose the donor’s identity in the process.

{mosads}We are now faced, just a mere five years later, with two outrageously wealthy libertarian brothers, Charles and David Koch, running a seminar to screen like-minded Republican candidates seeking their support. This gesture was accompanied by their announcement that they will spend $889 million on the next election.

It is probably important to note that spending at this level places them on par with national political parties. In the 2012 presidential campaign, the Democratic Party spent $1.1 billion and the GOP spent $1 billion, according to the Center for Responsive Politics (CRP), a nonpartisan group that tracks these things. When you consider the impact of that comparison, it becomes painfully clear that the Kochs’ philosophy will have a significant impact on the behavior of those they help to elect. Moreover, opposition candidates such as the presumed Democratic Party candidate in 2016, Hillary Clinton, will be highly motivated to seek wealthy Wall Street types to counter the money supporting the opposition just so she can remain competitive. Any hope Democrats had that President Obama’s current populist proposals would define the agenda for the next election are probably going to be disappointed.

To quote Reps. David Price (D-N.C.) and Chris Van Hollen (D-Md.) in a recent op-ed, “Each successive election since 2010 has seen an increase in the amount of money spent by candidates, parties, outside groups and individuals. The 2014 cycle cost close to $4 billion for congressional races, making them the most expensive midterm elections; the 2012 cycle cost $6.3 billion for presidential and congressional races, an overall record that will almost certainly be broken in the 2016 cycle. And much of that funding came from anonymous donors and organizations with minimal oversight from the Federal Election Commission.”

Reading through the Supreme Court decision and reflecting on the judicial philosophy of the strong support provided by Justices Antonin Scalia and Clarence Thomas, it is not difficult to understand the elitist preferences of the Citizens United verdict. Their philosophy of originalism suggests that there is an identifiable intent or original meaning associated with the initial adoption of a constitution or statute which should govern its subsequent interpretation. Since the U.S. Constitution originally stipulated the indirect election of senators and the president, voting rights only for white male property owners; no voting rights for blacks, with slaves counted only partially as part of the demographic; and no voting rights for women, it is pretty clear where their understanding begins. To suggest that they have distain or fear of majority rule may be something of an overstatement, but it is pretty clear that deciding that money can and should rule in political advocacy fits nicely into this mindset.

Arguments are wasted by those who believe that the Constitution provides guiding principles in need of updating to contemporary events and that the founders’ concern was driven by a fear that power would be improperly vested in one branch of government or another, in one person or another and that factions were to be prevented from exercising undue influence. The Citizens United decision almost screams elitism. The country’s interests are best served by those able to buy and control outcomes.

When you take into account the fact that the Citizens United decision was followed in 2013 by the Supreme Court’s removal of the limitations on voter registration protections included in the Voting Rights Act of 1965, the court’s mindset is crystal clear. Needless to say, the Kochs were at the forefront, capitalizing on the decision by providing draft legislation for states to require stiff voter identification procedures designed specifically to inhibit traditionally Democratic opposition voters from getting to the polls.

The immediate response to the Citizens United decision came from the liberal community and people such as Sen. Bernie Sanders (I-Vt.) and Patrick Leahy (D-Vt.) for a constitutional amendment to override the Supreme Court’s mindset. To put it mildly, this valiant effort was a lot like the proverbial “shoveling sand or something else against the tide.” The effort can only be considered a sop by the powerless to express anguish with no realist hope of success.

To date, there has been no confrontation of the anti-democratic elitism of the court. The most recent event witnessed eight activists disrupting the court who were then, according to the (Raleight, N.C.) News & Observer, “arrested for violating a federal law that prohibits ‘a harangue or oration, or utter[ing] loud, threatening, or abusive language in the Supreme Court Building.’ The seven individuals, along with an eighth, were also charged with conspiracy related offenses.”

This hardly counts as meaningful dissent. What is needed is a horde of supporters contacting the activists’ sponsoring group 99Rise to volunteer to stand watch and witness every single event that the offending justices attend; for liberal or civil rights-minded financial supporters to funnel resources to support opposition research to discredit the justices (it is well-known that both Scalia and Thomas have interesting ties to conservative groups); for members of the Senate Judiciary Committee to make public pronouncements focused on the anti-democratic decision-making; and for more scholarly assessments be paraded around the country to enlighten the public to the damage the court has done. The justices were certainly within their rights to come to the conclusions they felt best served the country, but the public is certainly within its rights to demand that they leave office.

Russell is managing director of Cove Hill Advisory Services.

Tags Bernie Sanders Citizens United Citizens United v. Federal Election Commission Hillary Clinton Patrick Leahy Supreme Court

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