Who is Defending the Honor of the “Political Marketplace”?

In its 2010 “Citizens United” decision, the US Supreme Courts held that:

Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections.  While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.

The American people see it differently.  In what maybe the ultimate trans-party issue, the majority of the American people are not just against Citizens United on the grounds that corporations are not citizens and money is not speech, they are strongly against it.

And yet, this ruling has strong advocates in both political parties. Republican politicians like that it strengthened the arms of business and a vocal group of Democratic politicians tout its empowerment of unions.

Since business and unions have a long and bloody history of opposing one another, it should come as no surprise that this decision has been framed in terms of a business vs union fight.  Or that 2011 turned into a year of unions busting measures at state and local levels and 2012 looks like more of the same.  With only 12% of American workers belong to unions, it should be equally unsurprising that for the most part unions have become the underdogs.

But another “Citizen’s United” battle has been quietly brewing in the background and last month the opening salvo was made.

The great state of Montana experienced extreme political corruption during its “Copper King” days at the turn of the twentieth century that left deep and lasting scars on its citizenry.  They learned first hand that most elections are at the state and local level and when money takes hold of the election process not even judges and school boards are safe. So Montana decided to challenge the “Citizens United” case.

Two weeks ago, in a send off to 2011, the Montana Supreme Court upheld its western traditions and values along with its 1912 Corrupt Practices Act by shooting holes in the U.S. Supreme Court’s “Citizens United” decision.

On December 30, 2011, by a vote of 5 to 2 the Montana Supreme Court decided that Montana’s ban on corporate political expenditures dating back to 1912 could stand. In a hard hitting decision, the U.S. Supreme Court’s take on the role of corporate money in politics in 2010’s Citizens United was challenged by both the majority and a dissent. The Montana Court slammed Citizens United from both barrels…

Barrel one —

The Montana Supreme Court held that Citizens United did not rule that expenditure bans were per se invalid. Rather, the Court noted that an expenditure ban is subject to strict scrutiny, which requires the state to show a compelling reason justifying the ban. The majority found the people’s interest in electoral integrity and voter engagement compelling and that the law [1912 Corrupt Practices Act] was narrowly tailored to serve these interests.

Now you know something has hit a nerve when even a judge on the dissenting side of the Montana decision, takes the opportunity to fire away at the U.S. Supreme Court’s “Citizen’s United” decision.  Here’s Montana Supreme Court Justice Nelson…

Barrel two —

It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate. In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections.

I absolutely do not agree that … “independent expenditures” … cannot give rise to corruption … Of course it can. … Citizens United held that the only sufficiently important governmental interest in preventing corruption … is one that is limited to quid pro quo corruption. This is simply smoke and mirrors. In the real world of politics, the “quid pro quo” of both direct contributions to candidates and independent expenditures on their behalf is loyalty. 

…[a]nd, in practical effect, experience teaches that money corrupts, and enough of it corrupts absolutely.

As it turns out, the state of Montana and the American people aren’t the only entities unhappy with “Citizen’s United.”

Small businesses have awakened to the fact that they lose when large corporations can use their wealth to affect tax loopholes, subsidies and other preferential treatment.  And now cities, including Los Angeles, CA; New York City, NY; Duluth, MN; Oakland, CA; Albany, NY; Boulder, CO and others, that experienced a flood of out-of-state funding into local election campaigns including school boards, are voting in favor of a resolution opposing the Citizens United decision (here’s a copy of a Portland, OR resolution) and even going so far as to formally call for a constitutional amendment to explicitly state that Bill of Rights protections apply to human beings, not corporations.

As if on cue, the Republican National Committee has stepped forward with a suit against Citizens United objecting not just to its unfair placement of non-profits and small corporations on equal footing with mega corporations like Exxon and Haliburton in banning direct contributions to politician and parties, but claiming that the decision also created a two tiered system that swings money and power away from politicians and into PACs.  Of course, the remedy the RNC seeks is not to overturn Citizens United, but to allow direct expenditures to politicians and parties.

There is no indication, nor is their reason to expect, that a corporation is any more rent-seeking it its political forays than an unincorporated sole proprietorship, partnership, or limited liability corporation, all of which are primarily viewed as economic actors, or than individuals, all of which are permitted to make political contributions.

Outside spending accounted for approximately 5.7% of total spending in the 2008 election cycle. Historical Elections: The Money Behind the Elections, Center for Responsive Politics; Outside Spending, Center for Responsive Politics. This ballooned to $304,679,091, or nearly 8.4% of all election-related spending in the 2010 election cycle. Id. These numbers are significantly higher in races where outside groups choose to focus their efforts, with super PAC spending alone reaching over 40% of total spending in the 2008 Colorado Senate race. R. Sam Garrett, Congressional Research Service Report for Congress, “Super PACs” in Federal Elections: Overview and Issues for Congress 10-20 (Dec. 2, 2011).

The solution is not to restrict or prohibit outside groups, which would be unconstitutional under Citizens United. At the policy level, more speech serves the public interest by ensuring more perspectives are heard. At the legal level, Citizens United and its progeny have made it readily apparent that such restrictions are antithetical to the First Amendment. The solution is to recognize that § 441b criminalizes speech and artificially disadvantages regulated political entities, and loosen the ties that force political parties and candidate committees to grapple in the marketplace of ideas with one hand firmly tied behind their backs.

So as the primary season heats into the general election season and the Obama and Democratic PACs join the Republican PACs in feeding the media beasts and inundating the airwaves, internet and print media with attack ads and campaign slogans, you might want to remember that the US Supreme Court is in fact a political institution…

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.” – Thomas Jefferson

It is just the only branch that is not elected by the American people.

“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their [the judiciary’s] proceedings to its own will.” –Thomas Jefferson to John Wayles Eppes, 1807.

So, you might want to move to Montana.  Or…

You might want to support a constitutional amendment to overturn Citizens United that makes it clear corporations are not people and that people, not corporations, govern in the US.

Overwhelming majorities of Americans, whatever their ideologies, oppose the Citizens United ruling and support a constitutional amendment to overturn it. In fact, a constitutional amendment is supported by 85 percent of independents, 87 percent of Democrats and even 68 percent of Republicans.

After all it is up to us, the citizenry, to defend the honor of our political system.


Update: Dylan Ratigan takes the fight against Citizens United on the road.  Here’s a great discussion  from his show on how to defend our political marketplace.




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