How much clearer does the Supreme Court have to tell us that Citizens United is done, decided, here to stay -- and STFU, why dontcha?
"The movement for a constitutional amendment is spreading like a Montana prairie fire," says Montana's Democratic Gov. Brian Schweitzer, with Republican Lt. Gov. John Bolinger looking on. A constitutional amendment, eh? That's the ticket. And the day the 38th state ratifies the congressionally approved amendment, it's hot-fudge sundaes for everyone, on me! With nuts and sprinkles -- the works!
I think a lot of people aren't getting the message of the Supreme Court's decision yesterday on the Montana Supreme Court's attempt to limit the reach of the High Court's Citizens United decision permitting pretty much unchecked flow of cash into election campaigns.
Citizens United is a lot of things: a brazen blow for the dismantling of democracy, obviously, and a stinking cesspool of ignorance, extremist ideological mayhem, and judicial thuggery (if not outright misconduct) -- and some of those things I want to come back and talk about another time. They don't really matter this second, because Citizens United is one other thing, as the Court told us yesterday in slapping down the Montana Supreme Court in its attempt to allow the state's century-plus ban on corporate campaign contributions to remain in force. The message was: It's over, people. Decided, finished, not subject to further discussion, and if we here on the High Court have to keep issuing more decisions to get the point across, well, we're not going anywhere.
Instead, I'm hearing people all over the place arguing! As if the Court had left any room for argument. But then, I can't imagine why anyone expected any different outcome to what I described back in February as "a Citizens United sequel," wondering why Justices Ruth Bader Ginsburg and Stephen Breyer appeared so eager to give their colleagues a second crack at the issue of corporate campaign cash. (I asked, "Do Justices Ruth and Steve know something about their Supreme Court thug-colleagues that we don't?")
Looking back, it seems less likely that any justices really thought the Court was going to backtrack on Citizens United. I'm guessing the interest in taking the case may have come from the other way side. The right-wing thug-justices needed to do so, becauseotherwise the Montana Supreme Court's decision affirming the ban on corporate election giving would have stood. It seems unarguably clear that the Fab Five never had any intention of letting that happen.
It seems to me that Rachel Weiner got the basic point more or less right in her morning post for washingtonpost.com's "The Fix" blog: "Supreme Court’s Montana decision strengthens Citizens United."
"The question presented in this case is whether the holding of Citizens United applies to the Montana state law," the majority wrote. "There can be no serious doubt that it does."
No arguments were heard; it was a summary reversal.
"To the extent that there was any doubt from the original Citizens United decision broadly applies to state and local laws, that doubt is now gone," said Marc Elias, a Democratic campaign lawyer. "To whatever extent that door was open a crack, that door is now closed."
A 1912 Montana law barred direct corporate contributions to political parties and candidates -- a response to the election interference of "copper kings." Mark Twain wrote of one such mining giant in 1907, Sen. William Clark (D), "He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell."
The state supreme court upheld that ban late last year in spite of Citizens United, saying Montana’s history of "rough contests for political and economic domination" gave the state a "unique and compelling interests" in limiting corporate influence on elections.
In fact, the "dismissal" went beyond "summary" to virtually derisive. Let's continue on in the ruling right after the Court declares that "there can be no serious doubt" that "the holding of Citizens United applies to the Montana state law." Says the opinion: "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."
And this is the crux of it, as a crackerjack-constitutionalist colleague explained today. What the Montana Supreme Court did, he suggests, was to assume that Citizens United wasn't an absolute declaration that under no circumstances could it ever be imagined that some restriction on corporate cash dispersal might pass constitutional muster; it was just establishing that the bar was going to be set really, really, really high. And the idea wasn't entirely implausible. As Rachel Weiner reminds us, in the Citizens United ruling, by none other than our old friend "Slow Anthony" Kennedy, the impaired justice --
argued that independent campaign expenditures by corporations "do not give rise to corruption or the appearance of corruption." [Justice] Ginsberg argued that the Montana case was an opportunity to reconsider "in light of the huge sums currently deployed to buy candidates’ allegiance.""Today's ruling," she writes, "shows that the five justices who supported the original ruling have not budged."
True enough, but as my crackerjack constitutionalist points out, it says something more. It says that no, there aren't any circumstances under which any restriction on corporate "free speech," which is to say disbursing campaign cash, could conceivably pass constitutional muster, at least in the currently controlling judgment of the Fab Five.
CC draws a fascinating analogy: with the landmark 1954 Brown vs. Board of Education ruling turning thumbs down on segregation in the schools, arguing that "separate but equal" isn't "equal." On its face the ruling, historic as it was, didn't dismantle the entire embedded system of segregation in American public life, and proponents of segregation knew it. No, it required a series of follow-up, clean-up decisions to establish beyond any doubt that the fairly absolute position the segregationists feared the Court was setting out was in fact now the law of the land. (CC points out that a good portion of the Brown opinion did in fact deal specifically with education.)
The 2012 Court majority, CC argues, sees its mission with equal righteousness and equal absoluteness, and it doesn't matter that they're wrong. What they say, goes.
Those are the facts on the ground, and it's occurred to most observers of the contemporary Supreme Court that the situation is likely to get worse before it gets better. One can never be sure about such things, and while I wish Justice Ginsburg many more years of health and service, it seems reasonable to hypothesize that she will be the next sitting justice to depart, which means that we will need a sane appointee just to maintain the present right-wing balance. Does anyone expect President Romney to come up with a remotely sane appointee?
OKAY, SO THERE'S A LOT OF UNHAPPINESS, BUT . . .
TPM's Benjy Sarlin, in his post today, "Justice Breyer: Montana Case Shows Citizens United Was Wrong," in addition to quoting from Justice Breyer's dissent, quotes a couple of interested congressional Democrats
In a statement condemning the Montana ruling, House Minority Leader Nancy Pelosi (D-CA), called for a four-part strategy "to fight for disclosure and shine a bright light on secret donations; to amend the Constitution to overturn the crushing Citizens United ruling; to reform the system and empower small donors and the grassroots; and to elect reform-minded candidates and leaders to office."
Sen. Sheldon Whitehouse (D-RI), who joined with Sen. John McCain (R-AZ) in backing Montana’s anti-corruption law, said the ruling should spur Congress to pass the DISCLOSE Act, which would require greater transparency for big money donors. It was filibustered by Republicans in the Senate in 2010.
"The conservative justices' desire to double down in the face of this and keep the corporate money flowing represents a sad day in the history of the Court," Whitehouse said in a statement. "It appears to be yet another demonstration of the politicization of the Court by the right-wing justices."
Now here's a statement issued today by Congressional Progressive Caucus co-chairs Raul Grijalva and Keith Ellison:
Congressional Progressive Caucus Co-Chairs Slam Roberts Court Decision on Montana Campaign Finance Law
Say Citizens United is Rapidly Eroding Foundation of Our Democracy
Today the Supreme Court went against the will of 75 percent of the American people to overturn an effective 100-year-old state precedent that had protected Montana elections from corporate money in politics. This ruling compounds the damage to our democracy already done by the Citizens United v. FEC decision, which has allowed millions of untraceable dollars to overwhelm our federal, state, and local elections.
The precedent set by that decision and reaffirmed today allows outside groups to trump popular state and federal laws that keep elections in the hands of the people. Montana's campaign finance law kept campaigning costs low for candidates and ensured that voters had the most powerful voice in politics. The average Senate race in Montana costs only $17,000.
We've seen this same story all over the country, and we know what happens next. Wealthy donors, corporations and special interests will now have unchecked influence over Montana's political process. Citizens United is rapidly eroding the foundation of our democracy. The decision announced today is a squandered opportunity to repair that damage.
Public opinion continues to favor overturning Citizens United. What happens next in Montana will provide a powerful example of how political conversation changes when corporations are allowed to sway campaigns. The Congressional Progressive Caucus will continue to fight for a constitutional amendment to overturn Citizens United and put democracy back in the hands of the American people.
I don't dismiss what Leader Pelosi has to say. Certainly pressure has to be put on contribution disclosure, because we're learning just how much the Richie Riches don't like having their "free speech" made public, and we also know that among the Supreme Court's thug-justices, Nino Scalia apparently has no problem with requiring disclosure. Enforcement is going to be tough, though. When it comes to election law, corporations have a lot of practice at tapdancing around oversight that doesn't have a lot of will (or weapons) behind it.
Similarly, I think it's important that there be a lot of talk about the issue. Maybe somebody will figure out how to make Americans give a damn about what's being done to their elections by the megadonors clogging up the system with their cash. I'm not optimistic, but as I said, maybe somebody can figure out how to message this so people finally get it.
Which brings us to the matter mentioned by Pelosi and emphasized by Senator Whitehouse and the CPC: overturning the concept of corporate personhood via constitutional amendment. Is there anyone here who believes there's even the slightest possibility of a constitutional amendment? I doubt very strongly, given the evolution of our political system and weighing that against the stringent requirements for adopting one, that we're ever going to have another constitutional amendment?
Don't get me arong: I have no question about the justice of the cause. Let's turn the floor over to Vermont Independent Sen. Bernie Sanders. Here's the statement he issued today:
I am extremely disappointed but not surprised that the U.S. Supreme Court reversed the Montana court ruling that would have allowed limits on campaign contributions.
The U.S. Supreme Court's absurd 5-4 ruling two years ago in Citizens United was a major blow to American democratic traditions. Sadly, despite all of the evidence that Americans see every day, the court continues to believe that its decision makes sense.
In recent weeks, multi-billionaires such as the Koch brothers and Sheldon Adelson have made it clear that, as a result of the Citizens United decision, they intend to spend hundreds of millions of dollars to buy this election for candidates who support the super-wealthy. This is not democracy. This is plutocracy. And that is why we must overturn Citizens United if we are serious about maintaining the foundations of American democracy.
I intend to work as hard as I can for a constitutional amendment to overturn this disastrous Supreme Court decision.
In his famous speech at Gettysburg during the Civil War, Abraham Lincoln talked about America as a country ‘of the people, by the people and for the people.' Today, as a result of the Supreme Court's refusal to reconsider its decision in Citizens United, we are rapidly moving toward a nation of the super-rich, by the super-rich and for the super-rich. That is not what America is supposed to be about. This Supreme Court decision must be overturned.
Here's the text of the proposed amendment Senator Sanders is supporting:
The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.
Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.
Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.
There is, by the way, one more point I want to make about this constitutional matter of corporate personhood, which I learned from Jeffrey Toobin's May 21 [update: sorry about the typo!] New Yorker piece, "Money Unlimited," which I've also been meaning to write about lo these many weeks. How many people know how the Supreme Court's assumption of corporate personhood came about? It's kind of a funny story, if you have a macabre sense of humor.