Activist Supreme Court gives corporations even more power to dominate politics

Among the many news reports on the Supreme Court's decision to open the floodgates even widen to corporate money in elections, this is a good one from the Los Angeles Times, Supreme Court OKs unlimited corporate spending on elections by David Savage 01/22/10. The LA Times editorial on the decision, The 1st Amendment and corporate campaigning 01/22/10, while supporting the Court's position on the narrow issue that was before it, explains that this was a piece of aggressive judicial activism that went far beyond the narrow scope of the case to reverse a century of Constitutional law. This was really a radical right decision.

President Obama addressed the issue in his weekly address on 01/23/09 01/23/2010, the White House transcript of which is grandly titled, President Obama Vows to Continue Standing Up to the Special Interests on Behalf of the American People. As they often do, many of the words sound right (my emphasis):

But this week, the United States Supreme Court handed a huge victory to the special interests and their lobbyists – and a powerful blow to our efforts to rein in corporate influence. This ruling strikes at our democracy itself. [my emphasis]

This ruling opens the floodgates for an unlimited amount of special interest money into our democracy. It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t. That means that any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time. Even foreign corporations may now get into the act.

I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections. [my emphasis]

But will he fight for real solutions? Sadly, he pleaded for a "bipartisan" solution, which has become for the Obama administration and the current Senate leadership at least an offer of preemptive surrender.

We currently have one Party, the Republicans, who are both strongly partisan and willing to fight for their goals. We have another Party, the Democrats, who are lukewarm partisan and not notably willing to fight for the goals that are most important to their Party's own base and to the majority of the people.

Sadly, the Party that is made up of fighting partisans has also become an authoritarian Party hostile to democracy and the rule. (See Bush v. Gore, the Cheney-Bush torture policy, to take two examples among many.)

It really is remarkable for the President of the United States to say of a Supreme Court decision:

This ruling strikes at our democracy itself.

I can’t think of anything more devastating to the public interest.

But those words at this particular moment in time remind me of what's been so gut-wrenching disappointing to even Democrats like me, who never viewed Obama as some kind of democratic messiah. His actions haven't matched up to the urgency of his words.

The plain meaning of those words is that our entire democratic and Constitutional system is at serious and grave risk as a result of the Supreme Court's ruling in Citizens United v. FEC. And this isn't some radio or FOX News demagogue saying this. It's the President of the United States and the head of the Democratic Party. Those words describe a danger that requires immediate remedies, now, this year, 2010, while the Democrats have a large majority in both Houses and the Presidency. Those words call for dragging or driving the Blue Dogs and the merely intimidated among the Democratic Members of Congress into acting.

But democracy and the rule of law is also under grave risk from the Cheney-Bush torture policy and massive domestic surveillance. And the Obama administration refuses to prosecute perpetrators from those programs and endorses much of the underlying legal defenses for both, which completely embracing the surveillance policy with the explicit approval of Congress.

So what is the President actually proposing on this new threat to democracy and the Constitution, this Court decision of which he "can’t think of anything more devastating to the public interest"? So far, something about on the same level of uselessness as a typical commission study: "When this ruling came down, I instructed my administration to get to work immediately with Members of Congress willing to fight for the American people to develop a forceful, bipartisan response to this decision."

Yeah, let's appoint at bipartisan commission to study the problem for a couple of years. Maybe Joe Lieberman and John McCain can co-chair it. Let's show bipartisan goodwill by putting Michelle Bachman and James Baker on the commission. They can study the problem for a couple of years and then deadlock along partisan lines. Historians chronicling the final years of American democracy will be able to consult the majority and minority reports of the commission as they draw the reasoned conclusion that the President was right: "This ruling strikes at our democracy itself."

There are some constructive things that can be done, none of them involving the intervention of the Bipartisan Holy Grail that the Democrats continue to invoke as their excuse for failing. Congress can require corporations to get approval from 99% of their stockholders, for instance, before spending shareholders' money on political campaigns. They could impose high disclosure requirements along the lines of, "This ad was authorized by Daddy Warbucks, CEO of Predator Bank, which stands to make billions of additional profit if Congress does what this ad advocates." They could restrict business activities by corporations that run political ads, or deny them government contracts. Not all of this would necessarily stand up to Republican Supreme Court review. But part of the way to fight these things is for the elected representatives in Congress to assert their legislative intent forcefully in restricting the ability of corporations to corrupt elections. Congress could even change the laws of incorporation to knock out the legal position, which was bad law from its beginnings in the 19th century, that corporations are legally equivalent to individuals, which is part of the basis of the Citizens United decision.

Since this ruling also reduces restraints on union political activity, this is yet another incentive for the Democrats to pass the Employee Free Choice Act to facilitate union organizing. This is a critical way to build up countervailing social power against corporate dominance.

There's also the Constitutional Amendment option but the Republicans will fight that tooth and nail, including with bundles of corporate political spending that the Court has now unleashed, so that's not a short-term solution.

Notable articles on the decision:

Jack Balkin, The Ghost of Campaign Expenditures Past Balkinization 01/23/09

Green Greenwald, a civil liberties hardliner, finds aspects of the decision to like but also declares himself "deeply ambivalent" on the ruling: What the Supreme Court got right Salon 01/22/10; and, Follow-up on the Citizens United case 01/23/10. Glenn underestimates how much this ruling can expand corporate domination of politics. He does make some interesting points about how the notion of corporations as persons figured into this case.

Heather Gerken, The Real Problem with Citizens United The American Prospect 01/22/10. She points out that the Citizens United ruling may have even broader implications for anti-corruption laws than just political advertising.

Greg Palast, The Supreme Court Just Handed Anyone, Including bin Laden or the Chinese Govt., Control of Our Democracy 01/22/10

Sahil Kapur, Grayson: Fight now or ‘kiss your country goodbye’ to Exxon, Wal-Mart Raw Story 01/22/10

Stephanie Mencimer, The Man Who Took Down Campaign Finance Reform Mother Jones 01/21/10

John Dean, A Supreme Victory for Special Interests TruthDig 01/21/10

Tags: citizens united decision, republican supreme court