A Mortal Blow To Democracy? Or Can We Fight Back?

Over the past year Blue America has been asking all potential candidates if they are a co-sponsor (incumbents) or agree to become a co-sponsor (challengers) of the Fair Elections Now Act, the legislation pushing strong campaign finance law. If they answer "no," it has disqualified them from endorsement. All Blue America endorsees favor strong campaign finance reform, so it shouldn't surprise any readers of this blog that no one was very happy with the Supreme Court ruling that came down this morning, a ruling that will flood an already corrupted political system with even more corruption. Just to point our two sectors that have been much in the news and much on the minds of Congress and the American people lately, the Medical Industrial Complex has donated $602,591,749 directly to congressional candidates since 1990 and the Financial Industry has given $1,355,657,551-- yes 1.35 billion-- in the same period. They expect plenty back on their investment-- and they get it, which is why we don't have a rational health care law and why Wall Street is robbing us blind. By the way, in the last 10 years, these 2 corporate sectors alone have spent over $7 billion on lobbying-- $3,815,185,036 from our financial friends and $3,677,477,493 from the people who have fought the hardest to keep Americans from getting healthcare-- and God only knows how many millions on the Independent Expenditures (mostly negative TV and radio ads) that the Supreme Court focused on this morning. I'm not sure what category the immense bribes the War Industry paid Duke Cunningham, Ken Calvert, Duncan Hunter, and Jerry Lewis came out of but they've spent over a billion dollars in lobbying since 1998 and spent another $112,847,122 directly on candidates for Congress.

It's worth reading the scathing footnotes Justice Stevens published in the opinion today:

Justice Stevens; Sometimes it becomes very clear why elections DO matter

FN 64 The majority declares by fiat that the appearance of undue influence by high-spending corporations "will not cause the electorate to lose faith in our democracy."  The electorate itself has consistently indicated otherwise, both in opinion poll ... and in the laws its representatives have passed, and our colleagues have no basis for elevating their own optimism into a tenet of constitutional law.

All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, "that there is no such thing as too much speech," Austin, 494 U. S., at 695 (SCALIA, J., dissenting).74 If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.

None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns or in any other public forum (much less that a work of art such as Mr. Smith Goes to Washington may be banned), or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s "concern about corporate domination of the political process," reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral "marketplace" of ideas, the marketplace in which the actual people of this Nation determine how they will govern themselves. The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to "First Amendment principles" depends almost entirely on the listeners’ perspective, it becomes necessary to consider how listeners will actually be affected.

FN 74: Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally.

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.

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle "elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests." At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Before we transition into some of the responses from Members of Congress to this outrageous power grab by corporate America and their Republican handmaidens, I want to point out that on January 30, 2006 the Senate shut of debate-- and in effect, guaranteeing confirmation-- by a vote of 72-25 one of the most blatantly corporate hacks ever nominated to the Supreme Court, Sammy Alito. Among the Democrats voting to make sure Alito would go onto the bench and consistently vote against the interests of working families were every single Republican (of course) plus ConservaDems like Joe Lieberman (CT), both the Nelson boys, Ben (NE) and Bill (FL), Blanche Lincoln and Mark Pryor of Arkansas, Mary Landrieu (LA), Tom Carper (DE) and most of the corporate shills who have labored so mightily against health care reform and to please their paymasters on Wall Street and at the big insurance firms.

Today, the Constitutional Accountability Center pointed out that the problem isn't the law, it's who is interpreting the law. "[T]he Court’s conservative majority re-wrote the Constitution to give corporations-- never mentioned in the Constitution-- the same right to influence the electoral process as ‘We the People.’ As the NYT’s Adam Liptak explains, 'Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court … ruled that the government may not ban political spending by corporations in candidate elections.' The justices did what many progressives feared for months they would do:  hold that long-standing restrictions on corporate campaign spending violate the First Amendment.

The Court’s ruling could transform our electoral politics.  During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion. With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.

As overwhelmingly demonstrated by Justice John Paul Stevens’ breathtaking dissent-- read aloud from the bench and joined by Justices Ginsburg, Breyer, and Sotomayor-- today’s ruling is startlingly activist and plainly contrary to constitutional text and history. Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them.  Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone.  In a profoundly wrong interpretation of the First Amendment, the Court granted corporations the right to drown out the voices of individual Americans in our Nation’s elections.

President Obama, who was smart enough to oppose confirming Alito back in 2006, issued this statement today:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is 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. This ruling gives the special interests and their lobbyists even more power in Washington-- while undermining the influence of average Americans who make small contributions to support their preferred candidates. That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

Good, they should work on it. In fact, they should have been working on it. As Alan Grayson (D-FL), more to the point, told DWT this morning, "Thanks to this decision, our Government will be the best Government that money can buy." (Last week Grayson introduced the Business Should Mind Its Own Business Act (HR 4431), which would impose a 500% excise tax on corporate expenditures on electioneering. A little moderate for my taste, but still good. Jerrold Nadler, one of Congress' most scholarly constitutional experts put it like this: "Today, the Supreme Court recklessly overturned a longstanding precedent protecting the integrity of our electoral process.  In this one act of judicial activism, the Court has increased the role of money in elections exponentially, corrupting the process even further.  I plan to chair a hearing in the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties in early February in order to explore the full impact of this decision. I intend to examine the ways in which Congress might respond to ensure that our elections are not further corrupted by the influence of corporate money.”

I hope Nadler and Grayson-- who also referred to the ruling as "the worst Supreme Court decision since the Dred Scott case," and worried that "it leads us all down the road to serfdom"-- will seriously consider the suggestion People For The American Way made today: a Constitutional Amendment. An extremist Supreme Court can strike down any law-- but, luckily, it can't strike down the Constitution.

"At its most fundamental level, our Constitution creates a democratic system designed to engage citizens in the act of self-governance. Absolutely central to that system is the ability of ordinary Americans to choose representatives who are responsible only to the rule of law and to our nation's citizens.

"Today's ruling by the Supreme Court strikes at the core of our democracy. The framers could never have imagined, and surely didn't desire, a system in which corporations could pour literally billions of dollars into elections and hold virtually limitless influence over the fate of our elected representatives. Such a system does not promote free speech; it mocks it.

"As Justice Stevens pointed out in his dissent, corporations are not people. They are not citizens. They do not have a right to vote and they can not be given unlimited power to influence elections.

"The Supreme Court's ruling today was deeply flawed. Instead of respecting decades of established precedent, the Court thumbed its nose at the principle of stare decisis and at the considered judgment of our elected representatives. Constitutional amendments are warranted in only the most extreme circumstances. This is one of them.

"People For the American Way has been at the forefront of defense of free speech and the First Amendment for almost 30 years. We continue in that role today. As Justice Stevens said in his dissent, '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.

You can sign the PFAW petition here.

Earl Blumenauer (D-OR) has long been one of the most thoughtful and dependable fighters for ordinary American families in Congress. Like all progressives, he was dismayed by today's decision. I like his idea about how to remedy it.

Today’s Supreme Court decision is an unfortunate escalation in the campaign spending arms race. Opening the corporate spigot directly into Congressional and Presidential elections will further tilt the playing field towards a narrow range of interests, already well represented with lobbyists and campaign contributions.
 
This is another step towards unraveling the modest campaign finance controls in place. Instead of another gusher of special interest funding, we should be working to decrease the influence of money in politics.
 
Congress should jump into action. While we work on the lengthy process of a constitutional amendment, to make clear that corporations are not individuals and don’t have free speech rights, we should at a minimum require that no corporate money can be used on political campaigns without a vote of the shareholders and approval of the board of directors.

Carol Shea-Porter, a co-sponsor of the Fair Elections Now Act, which aims to put power in the hands of those who can raise small contributions and take big corporations out of the driver's seat, seems to be speaking for most progressives in Congress when she expressed her disappointment with today's ruling: "It pollutes the process even more than it is now. I have never taken money from business PACS or DC lobbyists, and I believe we need more campaign finance reform, not less. This decision makes it even harder to hear the public over the noise of special interests." 

Democratic congressional leaders claim they are already moving to curb the impact of the Supreme Court ruling, although the political class is extremely conflicted in this instance and I just do not trust the majority of them-- bipartisanly-- to do the right thing. Chuck Schumer (D-NY) chairman of the Senate Rules Committee and third-ranking member of the Senate Democratic leadership has taken $15,085,045 just from the Finance sector-- true less than half what crooked Republican John McCain has gobbled up, but still a lot of conflicted interest-- and he says he's going to hold hearings to explore ways to limit corporate spending on elections. Is that a good thing? I'd rather see Bernie Sanders (I-VT), who isn't tainted by their filthy lucre, be in change of the hearings. Still, Schumer is talking a good game: "The bottom line is this: The Supreme Court has just pre-determined the winners of next November's elections. It won't be Republicans, it won't be Democrats, it will be corporate America."

Sen. Russ Feingold (D-Wis.), one of the fathers of campaign finance law, called the ruling a "terrible mistake” but said he would also work on legislation to restrict it.
 
"The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections. In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible," he said.
 
Sen. John McCain (R-Ariz.), another leader in campaign finance law, said he was disappointed by the decision but did not say anything about legislative options.
 
"I am disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions.  However, it appears that key aspects of the Bipartisan Campaign Reform Act (BCRA), including the ban on soft money contributions, remain intact," he said.

Tonight Donna Edwards will be a guest on Air America-- its last night-- with Nicole Sandler (click on Nicole's name to listen) discussing the ruling and what Congress can do about it. Earlier today Donna told us she considers the ruling "a devastating step backward in the effort to prevent excessive corporate influence on elections. The Roberts’ Court is giving big business unharnessed influence over our elections and public policy.”

The non-incumbent candidates Blue America has been working with this year are as equally outraged by the ruling as the members of Congress. The first person who contacted me this morning was former state Senator Regina Thomas (D-GA), who's running against reactionary Blue Dog John Barrow, to tell me how strongly she agreed with Justice John Paul Stevens' dissenting opinion. She pointed out that "even the current system is unbalanced and unfair to challengers, completely catering to incumbents. This is one of the biggest reasons why Congress hasn't been able to get Health Care Reform passed.  Without real campaign finance reform, the playing field will always be tilted towards all that's wrong in our politics. I hope to be in Washington next year working on solutions."

I had hardly finished with Regina when I heard from Doug Tudor, who is also running in the South against a reactionary Blue Dog (Lori Edwards, who is being pushed by the DCCC). Doug might not sound diplomatic but he sounds like many people who cherish democracy feel today: “No person in his or her right mind can believe that more money in the political process is the answer to the many challenges America faces. While I will wait to see the final FEC ruling on how this impacts this year’s campaigns, we Progressives need to increase our efforts at legislating true campaign finance reform which ensures voters, not corporations, are the loudest voices in the election process.”

And Marcy Winograd, another stalwart progressive running against another reactionary Blue Dog (Jane Harman, the richest Democrat in Congress) spoke directly to her Green New Deal base when pointing out that she "won't be surprised when Boeing, Raytheon and other military contractors dump obscene amounts into independent expenditures for my opponent, who once proudly sported a B-1 bomber pin on her lapel. I'll keep my peace pin on and continue to encourage small contributors to give $10, $20, $50. At some point, the law of diminishing returns kicks in, so challengers like myself just need enough money to fund a solid field operation. A media blitz cannot compete with feet on the ground, with an electrifying neighbor-to-neighbor buzz, with a message that resonates: Jobs, not Wars."

If you'd like to see less Blue Dogs and other conservatives in Congress, please take a look at the Blue America page, Send Democrats A Message They Can Understand and give our candidates a shot at beating back the tide of corporate corruption.

Let me leave you with one last thought, from Congressman Raúl Grijalva (D-AZ), chairman of the Congressional Progressive Caucus:

In today’s case of Citizens United V. FEC, the Supreme Court went far beyond precedent, far beyond the original intent of the Constitution, and far beyond anything the Founders meant when they protected freedom of speech for individuals. James Madison never intended for the First Amendment to apply to corporations; he meant free speech to be for the people. 
 
The Bipartisan Campaign Reform Act destroyed by the Supreme Court today did not take away access to political speech by corporations. A corporation could have spent unlimited sums of money to televise and broadcast its message at any time except immediately before primaries and general elections. This limited law was directed at keeping wealthy corporate interests from drowning out the voice of individuals just before a vote. The idea that corporations must be treated identically to human beings when it comes to political speech is a bad reading of history and an insult to the people of this country.
 
This outrageous ruling is a power grab by conservative judicial activists unnecessarily overturning more than a century of judicial precedent. Congress must address the incongruous and undemocratic outcome of this inflation of corporate power, starting with passage of the Fair Elections Now Act, in order to begin to return the electoral process back to the American people. Congress must move to make it clear that free speech is meant for individuals and not for corporations.