The greatest experiment in democracy the world has ever known, made great because of its concept of checks and balances, is about to become bought and paid for with checks from Walmart and the like. It is a decision that is tailor-made to place a heavy coat of cynicism on a public already overly clothed in suspicion.
Having hijacked the U.S. Presidential election in 2000 in what even many conservative judicial scholars rate as one of the weakest and most contradictory legal rationales in U.S. Supreme Court history, the remnants of this group have now largely expropriated the democratic process and handed it over to the giant American corporation.
The putative privatization of political campaigns occurred with the 5-4 decision of the court handed down this week in Citizens United v. Federal Election Commission. This was the case where Chief Justice Roberts, who eventually supported striking down the limits the law previously imposed on spending, thought the matter to be so important that he took the rare step of scheduling oral arguments during the court’s vacation period this past summer. Some have drawn conclusions about what that says for the court’s willingness to do the bidding of moneyed interests.
Justice Kennedy, writing for the majority, which included the Chief Justice along with Justices Alito, Thomas and Scalia, cited the right of free speech in striking down existing limits on political spending by corporations (and other organizations). But the First Amendment ought not, we think, to confer the right of any organization or group of organizations to have their opinions stand first and foremost. This is precisely what will happen now that the floodgates are opened to unlimited election advocacy spending. It will be the organization with the most money whose opinion will count the most, as anyone who has ever been involved in the political process knows. Ask any candidate about the importance of money and advertising in politics today. Ask what would happen if they were facing an opponent whose views were supported by a blank check. How much chance would their voice have of being heard in the real world, which is clearly not the same one these five justices inhabit.
It can be argued that the decision also frees up limits on other groups and allows their voices to be heard more fully, creating some kind of abstract marketplace of ideas where the public ultimately weighs and determines the best political decision. But this is a little like a naive first-year law student praising a legal system where it is held that all people have equal access to justice and that a plaintiff represented by a single country lawyer has the same chance to prevail as a giant corporation with thousand-dollar-an-hour attorneys backed up by armies of associates, investigators and paralegals. The theory is nice, but talk to someone who has lived the experience and a different picture generally emerges. Like a giant gorilla on a teeter-totter, money is almost always the greatest de-leveler in any electoral or judicial park.
This decision risks making political parties irrelevant; the real players will be the guys in the suits on K Street who will be stacking crates of cash behind their clients’ causes. Lobbyists will have a field day; they will become in many ways a shadow government and Washington’s most influential policy makers. Imagine that kind of power, if you will, in the hands of the big banks or the AIGs of the world, who brought you the worst financial meltdown since the Great Depression. Imagine how much more banks will be able to enrich themselves by blunting the role of regulators and making sure, if Wall Street screws up again, it will have ready access to even more public bailout funds. Imagine a world where drug companies and chemical producers no longer have to worry about a watchful FDA or other agencies who are supposed to protect consumers from faulty products.
In the majority decision, Justice Kennedy forcefully asserted “This Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Perhaps he has forgotten one of the lessons of Watergate. Some thirty-five years ago, at the height of that scandal, it was revealed that more than 400 major U.S. corporations, including top names such as Gulf Oil, Exxon, Mobil and Lockheed were found to have made secret payments to foreign government officials around the world. The Corrupt Foreign Practices Act was passed by Congress to ban such payments in the future. Would a Congress where the campaign influence of these companies had no bounds pass such a law again? Might it even repeal this one?
In a day where the power of large corporations and other organizations more and more outweighs the voice and interests of the ordinary individual, it is often during elections – and only during elections – where that voice has any real chance at all of being counted. The growing size of entrenched interests and the frustration people feel in the face of established power lies at the heart of what we call turbo populism. People do not want to see more great concentrations of power mounted against Main Street. They are looking desperately for the opposite at a time when they have already had to pay too much for the abuse and incompetency of both Wall Street and Washington. The decision is tailor-made to place a heavy coat of cynicism on a public already overly clothed in suspicion.
The Supreme Court did not hear that voice this week. It heard only the self-aggrandizing views of those with a great deal of power and wealth who are determined to grab yet more. They are now able, unchecked, to use elections for that purpose.
Twice in the span of a decade, self-described conservative guardians against judicial activism have intruded into the democratic process on a scale no liberal judge would ever dare. The first effort shaped the outcome of a presidential vote. Now they have set the stage for the wealthiest to shape all future outcomes. The greatest experiment in democracy the world has ever known, made great in large part because of its concept of checks and balances, is about to become bought and paid for with checks from Walmart and the like.
Fear for the long-term health of democracy is an appropriate reaction to this decision, as Justice John Paul Stevens eloquently adumbrates in his passionate minority opinion. But outrage quickly follows to fuel public demands for change and efforts to curb the threat this decision portends.
Fortunately, the largest corporations are still governed by securities regulations that can set out what decisions shareholders themselves are required to make.
Mr. President, give the SEC a call.