Thursday, October 03, 2019

RECLAIMING AMERICA: REVERSE CITIZENS UNITED

RECLAIMING AMERICAN DEMOCRACY:  CITIZENS UNITED.





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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