RECLAIMING AMERICA: BREAK UP THE MEDIA MONOPOLIES

THE LONG WAY HOME

BREAK UP MEDIA MONOPOLIES

Beginning with Facebook

“They’ve bulldozed the competition, used our private information for profit, undermined our democracy and tilted the playing field against everyone else.” 

Elizabeth Warren, US Senator and Presidential Candidate

Ten years ago this article would have been about the television and newsprint monopolies.  To some extent it still is.  But more importantly it concerns the social media monopolies – most notably Facebook.  For while more Americans still get their news from television, a 2018 Pew Research Center report found that the fastest growing source of news in America is social media. 

At 20% of respondents, social media passed print newspapers (16%) as the primary source of news.  It trailed radio at 26%, news websites at 33% and television at 49%.  Combining social media and news websites, more people got their news online than from any other source.  Moreover, recent revelations about the role of Facebook in laundering Russian propaganda for the election campaign of Donald Trump have alerted us to the dangers that social media pose.  It is in fact fertile soil for unfounded propaganda, rumor, innuendo and conspiracy theory. 

As a candidate for president, Senator Elizabeth Warren of Massachusetts has proposed breaking up media monopolies, drawing the ire of Facebook founder Mark Zuckerberg.  Recently, the word got out that Zuckerberg, Founder and CEO of Facebook, recently informed his employees at a private assembly that he would fight like hell against the “existential” threat posed by candidate Warren. 

Had he tried he could not have choreographed a more effective endorsement of Warren’s candidacy for president.  Those of us who subsist on less than ten digits in annual income can safely assume that Zuckerberg has no concept of a true existential crisis.  He may have dreams of global domination but he certainly has no understanding of the scourge of monopolies on a free market economy. 

It seems Warren has the audacity to stand up to Facebook, noting that the dominant social media platform has swallowed Instagram and WhatsApp and together they control 85% of the American market.  If Warren succeeds in breaking up the dominant platforms, she argues that they would compete in protecting user privacy and assert greater effort at combating the sort of mass misinformation that corrupted the 2016 presidential election. [1]

Zuckerberg’s counter argument is reminiscent of the big three automakers, the railroads and Standard Oil defending their market dominance.  The historical monopolies claimed that only they had the resources to serve the public interest.  Zuckerberg argues that only Facebook has the power and money to combat misinformation and foreign interests.  The problem of course is that Zuck and company lack motive.  Just like John D. Rockefeller and Henry Ford, their primary motive is to boost market share and elevate the profit margin. 

Mark Zuckerberg has never demonstrated a social consciousness.  He responds with evasion, obfuscation and misinformation every time Facebook faces criticism.  Even if we could believe in his philanthropic values we should not.  History instructs us that corporate entities always serve their own interests.  Always.  Without exception.  How much power and wealth does Zuckerberg need?  The answer is and always will be:  more! 

Where was Zuckerberg’s social consciousness when Russian agents spent sizable sums creating fake accounts to distribute false facts and scandalous propaganda to targeted populations in Michigan, Pennsylvania and Wisconsin in the 2016 election?  Did he know?  Yes.  He had to know.  Several members of Facebook were working directly with Donald Trump’s campaign, working alongside rightwing data operation Cambridge Analytica, in formulating advertisements and targeting Facebook users.  An estimated 126 million users were exposed to Russian propaganda and 85 million had their data stolen by Cambridge Analytica. [2]

There is no doubt that Russia used Facebook and Zuckerberg profited.  At his appearance before congress in April 2018 he testified that “tens of thousands” of fake accounts were identified and taken down in 2017 – after the election.  His solution for new verification requirements can easily be bypassed with shell companies and fake identifications. [3]

Zuckerberg failed to answer questions about the data Facebook provides Russian and other foreign agencies where Facebook operates.  Russia requires Facebook to store their data in Russia where they can access it.  The irony is rich in that Zuckerberg refuses to share data with the US government. 

I’m not suggesting that Facebook should share its data with the US government.  I am suggesting that it should not be sharing personal data with any government.  As it now stands corporations like Facebook operate in a Wild West environment where anything goes.  We have no way of knowing what data it retrieves and stores for analysis and what data it buries.  Moreover, we have absolutely no reason to trust Zuckerberg and his loyal minions.  In fact, we have every reason not to trust him. 

No one on the congressional committee thought to ask Zuckerberg what kind of assistance his employees provided to Russian fronts like the Internet Research Agency.  If they provided data used to target voting populations in critical states, their complicity in defrauding the 2016 election would rise to the critical zone. 

When you take a closer look at the services Facebook typically provides its corporate customers it becomes highly probable that they conspired with Russian interests in tipping the election.  For example, they provide a “custom audience” application that matches the client’s message with a receptive audience.  That is precisely what the Trump team needed to tip the balance in the critical states. 

Between barrages of tech talk that no one outside the industry understands Zuckerberg repeatedly asserted that users have the power to control their own data.  Really?  The truth is we have no idea what Big Brother does with the data we provide.  He repeatedly said they do not sell user data.  That is only true in the most abstract sense.  They use our personal data to feed algorithms that they then sell to advertisers who have something to sell to the user.  Without user data there would be nothing to sell. 

It goes on and on but the bottom line is clear:  Zuckerberg is no friend to American democracy or the public interest.  He and his people are smart enough to find ways to sell us out a million times over and make unconscionable sums of money doing it. 

Elizabeth Warren is right.  The big tech companies should be broken up.  The data monopolies they hold strictly for profit need to be placed under some form of public scrutiny and oversight.  Facebook and its enigmatic leader have earned our distrust.  Zuckerberg has established his place in history as a primary conspirator with Vladimir Putin in getting Donald Trump elected to office. 

If there were a way to put him and his operators in jail for what they did, I’d be all for it.  Unfortunately, the law has not begun to address the wilderness of technology – no less social media. 

Warren’s proposal is just a beginning.  To the extent possible we should break up the media monopolies.  We should also make sure that political ads are delivered with absolute transparency.  If the source is Russian it should be clearly stated.  If the source is Facebook, it should say that as well.  Never again should we be inundated by anonymous popup ads that inform us what to believe without regard for the facts. 

Google, the ubiquitous search engine and owner of YouTube, is even more dominant than Facebook.  In twenty years of existence it has grown to control nearly 90% of all searches on the global market. [1]

It is clear that the algorithms that Google employs to generate sources and their order of presentation have the power to effect our opinions and perspective on the news of the day.  Conservatives complain that Google demonstrates a liberal bias and researchers have found some basis for that complaint.  A media organization called AllSides found in late 2018 that roughly 65% of news sources generated by Google searches yield left-leaning results while only 16% were from the right.  The organization also found that the bias was not intentional per se.  Their algorithms were designed to serve their users and their users tend to be younger and more progressive than the general public. [2]

While we should be more concerned with the validity of news content than perceived political bias, we should be able to access unbiased news through our primary news sources.  It seems to me that some form of user control should be offered if indeed we are unable to break up the monopoly of news. 

Once again, as we transition from traditional news providers to internet-based news sources, we are entering a bold new world of information dissemination.  We need new tools to ensure that what we once called news is not transformed into pure bias-controlled propaganda.  We need standards of journalism to apply to web-based news and we need a non-partisan government agency to monitor the news and enforce fundamental standards of journalism.  That which is not news should be clearly labeled as opinion. 

What do we do about the more traditional news providers?  We know that only a handful of massive corporations with international corporate interests own the primary news sources via television, radio and print media.  We know that the corps of serious journalists and reporters has suffered major cutbacks.  We know that large corporations are nearly impossible to sue for unsubstantiated news or biased reporting due to their deep pockets and scores of high-powered attorneys. [3]

As a consequence, news organizations get away with murder.  Fox News reports one set of facts – adhering closely to the Republican Party talking points – and MSNBC reports another set of facts that too often bear a close resemblance to the Democratic Party talking points.  We suspect that every news organization has a hidden economic and/or political agenda and too often we are right. 

What can we do? 

The first thing that comes to mind is separating news media and journalism from all other corporate entities.  Knowing that opposition will be fierce and buttressed by deep pockets and legions of litigators, multinational corporations with inherent conflicts of interest should have no control of the news industry.  Noting that only media is protected by the first amendment to the constitution, AT&T should be forced to divest itself of CNN.  Walt Disney should be compelled to divest itself of ABC.  Comcast should divest itself of ABC and Media Networks.  In print media, Amazon should divest itself of the venerated Washington Post. 

In radio the picture is even more complex.  The worlds of entertainment, propaganda, news and commentary often overlap.  The same principle should apply.  If we can force the separation of news and journalism from all other corporate interests, we should do so.  To the extent that we cannot separate them, we should require an impenetrable firewall that prevents the corporate masters from influencing the news or informed editorial content. 

The corporate world has spent a lot of time and resources gaining control of the flow of information.  They will not give up that control without a fight.  They hold the reigns of mass messaging.  They will offer dozens of established experts and commentators that will offer a vast array of arguments why it is neither possible nor advisable to break up the media monopolies and separate the news from corporate interests.  They have the money and they have the platforms to deliver their message.  We only have ourselves and common sense. 

In its 2019 report, Reporters without Borders ranked the United States of America 48^th in the world for upholding the principles of a free media.  The report noted that our president has declared the press enemies of the people and consistently labels news reports unfavorable to his interests as “fake news.”  The report also notes the failure of the Trump administration to condemn the Saudi Arabian government for the brutal assassination of Washington Post contributor and Saudi critic Jamal Khashoggi. [4]

Forty-eighth out of 180 countries is hardly good enough for the land of the free. 

If we believe in democracy we must do all we can to ensure a free flow of unbiased information.  Democracy depends on an informed citizenry and an informed citizenry depends on a free and fair press – including the media. 

1. “18+ stats that show how search and SEO are changing.”  By Rebecca Sentence.

Econsultancy, October 28, 2019.

2. “AllSides Report on Google News Bias: Analysis of political bias of Google News and

Google News search results.”  AllSides.  October 16, 2018.

3.     “These 15 Billionaires Own America’s News Media Companies.”  By Kate Vinton.  Forbes, June 1, 2016.    

4.     “2019 World Press Freedom Index.”  Reporters without Borders. 

Jack Random is the author of Hard Times: The Wrath of an Angry God and the Jazzman Chronicles – a collection of 99 commentaries on American and International Affairs from 2000 to 2014 (Crow Dog Press).

RECLAIMING AMERICA: EXPAND THE ELECTORATE

THE LONG WAY HOME: RECLAIMING DEMOCRACY

EXPAND THE ELECTORATE

By Jack Random

If you believe in democracy, you want to expand the electorate.  You want every voice to be heard.  You want everyone to vote, every vote to count and every opinion to be represented.  If you believe in democracy you fight to break down all barriers to participating in the democratic process.  You make it as easy as possible for every eligible voter to cast a ballot. 

If, however, you are not certain that representative democracy is a viable system of government, then you tend to believe that only the elite and well educated should vote.  You would prefer that the working class, the poor and the minorities – too often victimized by substandard education – sit on their hands at election time.  You would rather their collective votes not be counted in any real sense.  You would rather the “best and the brightest” choose our elected officials.  You would rather the common rabble stay home and watch football, soap operas or reality television. 

This is the dirty little secret of American democracy.  The elite have found ways to carry on the pretense of a functioning, majority-rule democracy while creating and perpetuating a corporate-dominant virtual oligarchy. 

The very last thing the anti-democratic forces want to see is an expanded electorate where everyone or nearly everyone who is entitled to vote actually votes. 

According to the Census Bureau, in 2016 there were an estimated 245 million citizens eligible to vote.  Of that total roughly 158 million were registered to vote, of whom roughly 138 million or 56% of eligible voters turned out to cast their ballots.  While most Americans want to believe that our nation is the world’s shining example of democracy, we rank 26^th on a list of 32 developed nations in voter turnout. [1] 

Those who support the way we conduct our democracy would have you believe that most Americans just don’t care.  Who knows?  Given how unresponsive our representatives are to the basic needs of the people, maybe they don’t. 

They would have you believe that those who do not vote should not vote because they are uninformed and uneducated.  The truth is far more sinister. 

The American system in its current form is designed for low voter turnout.  Virtually every aspect of our election tradition is intended to suppress voters.  We hold our elections on Tuesdays – a day when working people are engaged in labor.  Voting requires workers to get up an hour early or to invest a couple of hours after their working day is done.  We could just as easily hold elections on weekends or during the course of a week or even two weeks.  We could make voting day a national holiday so that no worker would find it difficult to locate his or her precinct and cast a ballot. 

The most recent trend in voter suppression is aimed squarely at the student population.  Activated by climate change, income inequality and the blatant racism of the Trump administration, college and university students have begun voting in greater numbers.  According to the Institute for Democracy & Higher Education at Tufts University, student voting more than doubled from the midterm election 2014 to the midterm 2018.  Consequently, Republicans have found ways to make it difficult to vote in the state where a voter attends school. 

In Austin, Texas, they closed down early voting stations on college campuses.  In Florida they did the same in 2014 but a federal court overturned the ban for 2018.  They are poised to try again.  In New Hampshire the legislature passed a law requiring students to get their driver’s license and vehicle registration within the state.  It is no coincidence that university students vote overwhelmingly for Democrats.  According to an Axios poll, an estimate 75% of students favor impeaching Donald Trump. [2]

It should not matter how the vote breaks down but it clearly does.  Such efforts must be fought relentlessly in the courts and in the court of public opinion. 

In response to Republican voter suppression laws, many states have moved to pass legislation expanding access to the ballot box.  Automatic voter registration laws have been proposed in New Jersey, Washington, Maryland, Massachusetts and Utah.  As noted above, other proposals to expand the electorate include same-day registration, expanded voting periods and election holidays that enable workers to take time off to vote. 

Many states make registering to vote more difficult than it should be and often require documents that they know many eligible voters do not have – most notably photo identification cards.  At present eight states have strict photo ID requirements while ten states have less strict photo ID requirements.  In states controlled by Republican legislatures there is a push for such requirements because they tend to affect poor and minority voters. 

We could make it easy for everyone to register.  The 1993 National Voter Registration Act required the Department of Motor Vehicles to offer voter registration.  Some states automatically register citizens to vote when they get their driver’s license or official identification.  Fifteen states and the District of Columbia offer some form of automatic voter registration.  All states should do so.  Automatic registration should apply not only at the DMV but at banks and utilities or anywhere that requires proof of residency.  Registering to vote should be as easy and convenient as signing a petition outside your local grocery store.  If memory serves me, activist organizations used to do just that. 

It is a peculiarity of the American system that every precinct and every state is allowed to create its own system of voting.  The process and the facilities should be uniform across all states and the District of Columbia.  An economically disadvantaged neighborhood should not have antiquated machines that cannot serve the number of voters in the district.  Every district should have the same machines and same number of machines to serve their voters. 

Some have suggested that voting should be mandatory.  I cannot go that far.  Voting should be considered a civic duty.  Citizens should be proud to vote and should be rewarded for doing so.  Instead, because jury duty lists are generated from the voting list, people are effectively punished for voting.  Proponents of the current system will say that jury duty is not a punishment but as long as such duty is mandatory it is an undesirable consequence of voting.  I suggest that governments should offer tax deductions for voting and jury duty should come from the DMV list. 

We have to change the way our political system works.  We have two parties dedicated to winning at any cost.  If the Democrats could gain advantage by enforcing requirements that would suppress Republican voters, I have no doubt they would do so.  Both parties should concentrate on lifting their own vote totals rather than suppressing the opposition.  Both parties should be dedicated to free and fair elections.  When they abandon that fundamental principle, the voters should exact a very costly penalty at the polls. 

When that happens we will have a stronger and more vibrant republic.  When people are invested in their own government, the nation will be stronger.  When elected officials know that poor people and working people will vote, more of them will listen and respond to their needs.  When more people vote there will be fewer officials who pay homage only to wealthy corporate contributors. 

When every vote counts and every vote is counted, the virtues of democracy will be self-evident and the principles of democracy cherished. 

1. “US trails most developed countries in voter turnout.”  By Drew Desilver.  Pew Research Center, May 21, 2018. 

2. “As student vote surges, so do efforts to suppress it.”  By Michael Wines.  New York Times, October 25, 2019. 

Jack Random is the author of the Jazzman Chronicles – a collection of 99 essays written from the year 2000 to 2014.  He has also authored novels, plays, poetry and short stories. 

RECLAIMING AMERICA: CRIMINALIZE ELECTION FRAUD

RECLAIMING DEMOCRACY:  ELECTION FRAUD

CRIMINALIZE ELECTION FRAUD & DISENFRANCHISEMENT

By Jack Random

     

“The range of voter suppression efforts has been more widespread, intense, and brazen this cycle than in any other since the modern-day assault on voting began.”

Zachary Roth and Wendy R. Weiser

Brennan Center for Justice, November 2018

The year 2000 and the subverted election of George W. Bush reactivated my outrage at social injustice and motivated a barrage of political commentary.  Before then my political consciousness had all but gone dormant.  I was aware but not engaged.  Until then, politics served only as backdrop and undercurrent for my written works. 

For me that election changed everything.  I was incensed at what happened in the state of Florida.  I witnessed the stealing of a presidential election and the spectacle of media belittling criminal activity as the “shenanigans” of the political class.  It was far more than shenanigans.  To anyone who believed in the democratic form of government it was nothing short of treason. 

And the closer we looked the worse it got. 

Not only did an army of political operatives subvert the recount in Florida with staged demonstrations and orchestrated disruptions, not only was the democratic process preempted by the judicial branch, but the story of a deliberate and massive disenfranchisement campaign was ultimately revealed.  Yet no one outside the far left seemed to care.  We didn’t have time for a valid election.  We didn’t have time to right the wrongs of the partisan political operatives who stole the election.  Instead of going to jail those same operatives went to the White House for the next eight years, reaping the rewards of their misdeeds.   

The modern age of disenfranchisement had begun and virtually no one noticed. 

But I noticed.  And others like me noticed.  We did what we could.  We sounded the alarm.  We pleaded with the American public to demand electoral change. 

Then came September 11, 2001.  President George W. Bush proclaimed it the day that changed everything.  It was the day that transformed an illegitimate president into a self-proclaimed war president.  On false pretenses he launched the wars in Afghanistan and Iraq and the pro-democracy movement – along with the environmental movement and every other progressive cause – receded into the backdrop as we turned our attention to war. 

That is the nature of war.  It tends to dominate public consciousness and overwhelms all other issues and concerns.  Maybe that is one reason our presidents are so inclined to engage in war.  Any war will do. 

Nearly twenty years later the so-called “global war on terror” goes on and the problem of mass disenfranchisement remains.  In the election decided by the Supreme Court an estimated four to six million legitimate voters were disenfranchised – many in the deciding state of Florida.  At that time Florida prohibited those convicted of felonies from voting in perpetuity.  The state of Florida used that law – recently repealed by referendum – to purge the voter rolls in predominantly minority communities.  They hired Database Technologies to compare the list of felons and ex-felons with the list of registered voters.  It was ingenious.  The operatives knew that the felon list included a disproportionate number of minority names.  If your name was identical to or even similar to anyone on the felon list you were eliminated from the voters list and denied the right to vote. 

There are many methods of disenfranchisement, including unreasonable identification requirements, inadequate voting facilities in minority districts, changing the polling place at the last moment and failing to notify voters, providing false information and providing an inadequate number of ballots as well as purging the voter rolls.  Were it not for disenfranchisement it is highly probable that Bush would have lost not only in 2000 but in 2004 as well.  Those who are old enough might recall the long lines of African Americans in the critical state of Ohio in 2004.  That was not a coincidence.  It did not happen in the precincts where the white upper middle class voted.  It happened in the poor neighborhoods where minorities voted. 

After the debacle of 2000 you would have thought there would be a wave of reforms to prevent disenfranchisement.  The reality was precisely the opposite. [1] Political operatives realized they could steal elections and get away with it.  Even if they were caught with their hand in the ballot box – or on the voter roll – the worst that could happen would be a scolding by the talking heads on CNN or MSNBC.  In short, the rewards far outweighed the risks. 

As the 2020 election looms the operators deserve kudos for creativity in denying the right to vote.  In North Dakota Republicans passed a requirement that voter identification include a residential mailing address, knowing that Native Americans often lack that requirement.  Texas and Wisconsin also passed new identification requirements designed to repress the minority vote. 

An appellate court temporarily struck down a sweeping voter suppression law in North Carolina but the authors and sponsors of that legislation faced no real consequences – or rather no negative consequences.  Thom Tillis, the speaker of the state house responsible for guiding the bill to passage was elected to the United States Senate.  Moreover, provisions in that law will be in effect during the next election cycle. 

In New Hampshire the legislature passed a bill designed to suppress the student vote by prohibiting student voting in the precincts of their college or university.  In Georgia the senate passed legislation cutting voting hours and restricting early weekend voting. 

It seems the battle for voting rights has become strictly partisan and is being waged on a state-by-state basis.  Is this any way to run a democracy? 

We have no recourse at present but to continue the battle in the state legislatures.  But the goal and the only long-term solution is to pass federal legislation that upholds voting rights and criminalizes attempts to obstruct those rights. 

What would happen if the operators who design and promote disenfranchisement schemes were subjected not only to severe financial penalties but also to criminal prosecution?  The executives that ran the great disenfranchisement in Florida should have faced prison sentences for defrauding the election of a president.  Governor Jeb Bush and Florida Secretary of State Katherine Harris should have faced criminal conspiracy charges. 

How different our electoral system would look today if those who attacked the very heart of the republic had paid the consequences.  The Karl Rove’s and Corey Lewandowski’s of the world should have lost their livelihoods and fallen into the pit of disrepute where traitors, cheaters and frauds belong. 

Instead of looking for ways to cheat the system, the Republican Party would have been forced to expand its franchise to include minorities.  Who knows?  Maybe they would have passed a comprehensive immigration reform bill.  Maybe they would have sacrificed some small fraction of their loyalty to the wealthiest of Americans to help the little guy.  Maybe they would have found a way to throw an occasional crumb to workers – like passing a $15 minimum wage. 

But who needs to expand the voter base when you can manipulate the voter roles, suppress the minority vote, harvest and alter absentee ballots, promulgate false information through election day robocalls, hack voter registration lists, alter ballots or find as yet untried ways of winning elections without a majority of votes. 

Until there is a stiff price to pay for defrauding democracy, disenfranchisement and voter suppression will continue to be accepted practices in the fine art of politicking.  As long as political operatives face minimal consequences for cheating the ballot, we will continue to have illegitimate representatives in both congress and the White House.  Until we stop rewarding anti-democratic practices, American democracy will fall short of the mark. 

“How the 2000 Election in Florida Led to a New Wave of Voter Disenfranchisement.”  By Ari Berman.  The Nation, July 28, 2015. 

“This is the Worst Voter Suppression We’ve Seen in the Modern Era.”  By Zachary Roth and Wendy R. Weiser.  Brennan Center for Justice, November 2, 2018. 

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.