Citizens United v. FEC decision hands political process over to corporations, corruption

The Supreme Court decision Citizens United v. Federal Election Commission may prove to be historic. As has become all too common, the decision was 5-4, with Justices Antonin Scalia, Clarence Thomas, Samuel Alito, Anthony Kennedy and Chief Justice John Roberts finding state and federal laws regulating the amount that corporations and other organizations can pay for television and radio advertisement to be unconstitutional The Court ruled that because corporations are legal persons, the money they use to influence elections is protected free speech under the First Amendment.

The current Supreme Court’s and right wing, corporatist proclivities are well known, and this ruling is completely in keeping with these tendencies. The philosophy of the Court’s majority is not so much judicial conservatism but political conservatism. The idea that the Supreme Court is somehow above politics is now a transparent myth, and has been since the disgrace of Bush v. Gore. At his confirmation hearings, Chief Justice John Roberts repeated many times his fealty to precedent and avoidance of making constitutional pronouncements when it can be avoided.

With this decision, the court neither respected precedent, nor attempted to avoid ruling on constitutional principle. Given a chance to rule on the case on very narrow grounds, the court decided to rehear the case and give a broader ruling on constitutional principle. Instead of sticking firmly to precedent, the Court overturned the McConnell and Austin decisions.

The decision is an example of legislation from the bench – the very thing conservatives claim to deplore. That so few conservatives have denounced it shows how shallow this supposed principle is.

President Obama quickly moved to condemn the decision. “This ruling opens the floodgates for an unlimited amount of special interest money into our democracy,” he said in a statement issued soon after the decision. “It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t.”

This is only partially true. The floodgates were already open, the decision just opens them a crack wider. The decision FEC v. Wisconsin Right to Life already allowed corporations to run attack ads about candidates. The only thing that this recent decision changes is it allows these ads to explicitly endorse a candidate. Concern that corporate money will now flow into the system is overblown; it already could. The president is right, however, to be worried about this decision, which will only exacerbate the situation.

The decision was jaw dropping because of the logic upon which it was based. It seems strange to many Americans that abstract entities like corporations have a right to free speech. Supporters of the decision pointed out that corporations are owned by regular Americans, insinuating that the status quo as far as campaign donations would rob regular Americans of the chance to express their own opinions.

This is deeply disingenuous. The ruling has no bearing on the ability of individuals to express themselves; rather, it affirms corporations and other organizations are entitled to free speech. Though corporations have long been considered people, the idea that corporate personhood allows free speech rights is a comparatively new development, mainly a product of right wing judicial thought. For almost as long as corporations have existed, their ability to use money to influence elections has been regulated by law.

The other pillar of this ruling – that money represents freedom of speech and is hence protected under the First Amendment – is also an odd reading of free speech law. Money used in the political process is clearly a form of expression, but generally donations and spending in campaigns have not been considered speech. The modern trope of the judicial right that campaign spending deserves free speech protection is merely a fatuous attempt to cloak the influence of wealthy individuals and corporations in the language of “freedom of speech.”

Some reactions seem to be emanating from a parallel universe. Jim DeMint, Republican Senator from South Carolina, said on “The Week,” “this will give businesses a chance to participate in the process as well as associations.” Similarly, on the New York Times op-ed page, a supporter of the decision argued, “It is a lot easier to legislate against unions, gun owners, “fat cat” bankers, health insurance companies and any other industry or “special interest” group when they can’t talk back.”
The truth is almost the opposite. The banks that created the economic crisis have received billions of dollars in bailouts to recover from a crisis that they themselves created. It’s difficult to see how they had trouble having their voice heard in our current system. Likewise, health care companies, who will see their health care rolls swelled by the health care mandate, have certainly had an outsized voice in the health care debate. Declaring that these large interests are just “getting a chance” to join the process should be enough to make any reasonably informed American doubt your sanity. This divorce of advocates of the decision from reality  an unwillingness to grapple with the real problem: the undue influence of corporations and special interests on the political system.
Anthony Kennedy’s opinion made it clear that influence, peddling, access, and ingratiation are no longer corruption; corruption refers only to the buying of votes. The subtle corruption of our political system by corporate and special interest influence no longer counts. The decision ties the hands of congress to regulate the flow of money into the political system, and opens the door to similar ruling overturning other aspects of campaign finance regulation. Especially, the ban on soft money could easily be overturned.
As with this decision, the facilitation of corporate takeover is ever cast in the language of free speech, and the equating of money to free speech. The Court’s decision should come as a wakeup call on the issue of campaign finance. We must build a public financing system and to take back the political process from corporate interests.