REVERSE
CITIZENS UNITED
Reduce
Money in Politics
“We have to
reduce the influence of money in our politics, so that a handful of families
and hidden interests can't bankroll our elections. And if our existing approach to campaign finance can't pass
muster in the courts, we need to work together to find a real solution.”
Barack Obama,
2016 State of the Union Address
In his 2010
State of the Union address Barack Obama warned the nation that the Supreme Court
decision in Citizens United v. Federal Election Commission would open “the
floodgates for special interests.”
Six years later the floodgates had opened to over $500 million from
undisclosed sources. [1]
Much has been
said about Citizens United on both sides.
Those who support the court’s decision claim that criticisms are
overstated, that the “floodgates” were already open and the increase in
contributions was inevitable.
Those who oppose the decision argue that it made an already untenable
situation significantly worse – almost to the point of no return.
At this
juncture it would be useful to review how Citizens United changed the state of
campaign finance law. First, it
recognized corporations as virtual citizens by awarding them the rights of citizens
to participate in the electoral process.
Second, it made corporate money equivalent to individual speech by
granting corporate contributions the protection of the first amendment. In short, the court in its infinite
wisdom made it impossible to impose any realistic limitations on corporate
spending in the political process.
It was the most anti-democratic decision in the modern era. It delivered the dual oxymorons: Money is speech and corporations are
people.
How very
convenient. It enabled the highest
court in the land to hold its head high and pretend it served the cause of
freedom when, in fact, it served the almighty god of corporate money. To say that Citizens United was a poor
decision is like saying the Nazis were intemperate. To those who truly believe in the democratic form of
government it was nothing short of catastrophic.
How do you
reverse a Supreme Court decision?
It is by design extremely difficult.
You can try to
work around it at the state or congressional levels. For example, you can impose contribution limits and
transparency requirements as the state of Montana did in 1994. It passed a referendum limiting both
individual and political action committee contributions. The Ninth Circuit Appellate Court
upheld the limitations after a lengthy process of challenges and the Supreme
Court let it stand by refusing to hear the case. [2]
As a result of
the court’s decision Citizens United in specific and campaign finance laws in
general are in limbo. It seems the
court yielded to the power of the states to decide how their own elections are
run. It suggests that the court is
having second thoughts about their own judgment in the wake of Justice Anthony
Scalia’s departure. It remains to
be seen whether they would allow congress to limit contributions or require
transparency.
The Ninth
Circuit also upheld the transparency provision of the Montana law that requires
groups that mention candidates in election ads or handouts to reveal their
identity and disclose their spending. [3]
The Supreme
Court has yet to rule on this provision.
Even if it upholds the Ninth Circuit it will likely limit its scope to
the states. Traditionally, the
court has upheld states rights to run elections in whatever discriminatory
and/or differential manner they choose.
The lone exception to the rule is the notorious Bush v. Gore 2000.
What we have
learned in this maze of legal uncertainty is that it pays to fight the fight in
the courts. If Montana can impose
limits and require transparency, then congress should have the power to do the
same on a national level.
Congress
should take up the challenge and pass new legislation as soon as Democrats gain
a majority in the United States Senate and kill the filibuster in the opening
session. Meantime, legislatures in
every state should proceed with campaign finance reform on the assumption that
it must be defended in the courts.
So how do we
reverse a Supreme Court decision?
In the long
term, we replace the anti-democratic justices on the court but that could
literally take decades. If Donald
Trump selects a third Supreme Court justice before his tenure expires, the
court of last resort will be a wasteland for civil rights and democracy for as
long as rivers run and children wonder why. While impeachment for justices like Brett Kavanaugh and
Clarence Thomas is a possibility, it is far too remote at present to expend our
resources.
The
possibility of expanding the court to eleven justices as Franklin Roosevelt
attempted to do has also been floated and it is hardly as remote as it would
appear. The number of justices on
the Supreme Court was not fixed by the constitution. It is subject to the will of congress and has changed over
time. In 1801 congress set the
number at five. It was raised to
seven in 1807, nine in 1837 and ten in 1863. It was reduced to seven in 1866 and increased to nine in
1869. [4]
Given the
preeminent needs of our times, increasing the number of justices to eleven
would be fully justified.
Acknowledging that Republican manipulations denied Barack Obama his
rightful appointment and the distinct possibility that an illegitimate
president appointed the most recent justices –Neil Gorsuch and Kavanaugh – it
seems a reasonable remedy. It
would of course require control of the US Senate and the elimination of the
filibuster – both of which are reversible.
If at some
point both political parties recognize the need to stabilize the court, a
constitutional amendment would be required. In the wake of Donald Trump we can no longer assume norms
will hold. Every not nailed down
by the constitution is subject to partisan manipulation.
In the
meantime, those of us who believe in democracy need to attack Citizens United
with legal challenges on every level of government on every conceivable
ground. We attack it with
legislation establishing strict limits on corporate funding. We attack it with transparency laws
following the precedent of Montana.
We attack it with a battalion of attorneys armed with a million
arguments. We attack it like the
right has attacked Roe v. Wade – with a certainty of purpose and a relentless
onslaught of cases. Let’s make our
adversaries spend the money, time and political capital we have had to spend
defending a woman’s right to choose.
Eventually
they will wear down. Knowing they
are on the wrong side of history, knowing they are defending the indefensible
they will cut their losses and yield in the fullness of time.
1. “On sixth
anniversary of Citizens United, Obama still has chance to act.” By Lisa Gilbert and Stephen
Spaulding. The Hill, January 21,
2016.
2. “US Supreme
Court declines to take up Montana campaign finance case.” Associated Press Report, Independent
Record, January 14, 2019.
3. “Fed
appeals court upholds Montana’s landmark campaign finance disclosure law.” By Mike Dennison. Montana News, August 12-13, 2019.
4. “Why Are
There 9 Supreme Court Justices?”
Live Science, July 7, 2018.
Jack Random is the author of the Jazzman Chronicles,
Pawns to Players: The Chess Trilogy, Wasichu: The Killing Spirit, Random Jack Children's Hour: Stories for Young Minds and The Long Way Home: Reclaiming American
Democracy.
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