Citizens United-The Destruction of Our Democracy : Part 1

Having witnessed the current cycle political campaigns more closely than i normally would, (and with the dog and pony shows known as political conventions thankfully over) we are in the home stretch of this year’s election cycle. As such, I’d like to address one, Citizens United, of two (the other is voter suppression in a “free” society) events taking place under our noses that are obvious signals of the possible  impending destruction of our Democracy-rights that our citizenry has irresponsibly ignored.

Citizen’s United and voter suppression are the kinds of things that I wondered about at length when trying to understand how Germany could’ve been so completely taken-in by Adolph Hitler’s rise to dictatorial dominance with such a lack of concern from supposedly intelligent German people. Especially given as sociopathic  as he was.  I could not for the life of me discern how a citizenry could apathetically ignore such obvious treachery taking place right under their noses without rising up and crushing this obvious mad man into oblivion…until now. Americans supposedly possess above average intelligence as well, but lawd look at what we have allowed to transpire.

Over the past months I have documented :

  1. that American politicians have either lost their minds by removing all of the protections that our leaders put in place after witnessing the carnage of the Great Depression, or are doing so intentionally for personal/political gain despite who gets hurt in the process. And nobody is paying attention. I feel like a town crier shouting at deaf people.
  2. the destruction from the economic failures that enabled the 2008 meltdown, who was responsible and how not a single responsible party so much as had their personal credit score adjusted over a scope of white collar crime unparalleled in modern times.
  3. the sheer lunacy of the economic policy of austerity during an economic downturn…despite  the fact that austerity is a sound macroeconomic policy if implemented as a balanced equation; just as Keynesian macroeconomic policy is sound economic theory if implemented as a balanced equation…neither of which politicians seem qualified nor capable of actually executing.
  4. that the so-called “business” and “capitalism-friendly, free-market-believing” Republican Party millionaires and billionaires have done more to create anti-capitalistic  monopolies and hand out corporate-welfare, anti-free market subsidies than anyone in modern history.
  5. that the same group of people  that drafted the Articles of Confederation in 1776, (which was over-ruled by George Washington himself in favor of the Federal Constitution), fought for “states rights” in the Civil War(The Confederacy), are now at it again and determined to block reproductive rights for women, deny voting rights for citizens of color, and dictate bedroom rights for American adults in the privacy of their own homes.

Hijacking Our Democracy: A SCOTUS EpicFail

Letting Politicians Screw Up The Economy is One Thing But Allowing the Hijacking of Our Democracy is a Watershed American Moment Slated for November!

A small town in Texas took a lot of heat last April by voting and passing a resolution calling on Congress to initiate a constitutional amendment to overturn the U.S. Supreme Court ruling known as Citizens United, that allows super-PACs to raise hundreds of millions of dollars, with no timely disclosure as to where the money came from.

The Frankensteinian monster that appalling decision created continues to grow. The far-right billionaire oil magnates, David and Charles Koch, have said they will donate as much as $400 million to pro-Romney super-PACs–more than John McCain spent on his entire campaign in 2008. Gambling billionaire Sheldon Adelson, (who made most of his money off of casinos in China) has pledged up to $100 million to Romney as well, after spending $40 million as practically the ONLY contributor to Newt Gingrich’s failed candidacy.

It’s not hard to see why these rich men favor Romney: A multimillionaire himself, he’s pledged to keep the Bush-era tax cuts for the wealthy and to loosen the mild regulations Congress put in place following the collapse of Wall Street in 2008 and ’09.

As a result of Citizens United, the online right-wing news source Politico has estimated that the anti-Obama forces (including the Romney campaign) will outspend President Obama and pro-Obama groups by 2 to 1 before the Nov. 6 election. Obama has his own rich backers, but nowhere near as many as Romney does.

This campaign for President will end up costing almost a billion dollars for a job that pays $400,000. But what those hundreds of millions of dollars is hoping to buy is influence, and not the kind of influence that lobbyists bring to bear. Serious influence. Influence that puts possibly dangerous information into some profiteering billionaires’ hands whose primary, no, all-encompassing concern is more personal wealth and power, not the good of the United States or its citizens. Suffice it to say, it’s a damn good bet that their LAST concern is the welfare of American citizens. No, what they want is to be able to call the White House at 3:00 am and have The President of the United States willing to take their call.

And don’t think all that money is being spent solely on the Presidential campaign. The same donors are pumping millions more into vital swing-state elections, vastly surpassing any amount of money a candidate for Senator or Representative can hope to raise on his or her own. If money can buy two branches of government, and the executive branch nominates Federal Judges, and the Legislative Branch confirms those judges, money magnates, at that point, control the entire country. And THAT is where we’re headed.

And because of the factors detailed above, there’s finally a groundswell of grassroots opposition to Citizens United but I pray it’s not too late. Earlier this month, the California Legislature passed a resolution similar to others, becoming the sixth state to call for a constitutional amendment overturning Citizens United and restoring democracy to the people. But in Montana, whose century-old law banning corporate money in elections was recently overturned by the U.S. Supreme Court, a statewide initiative calling for an amendment will be on the November ballot.

Americans, whether they know it or not, are in danger of losing their democracy. In 90% of elections to date, the best-financed campaign is the eventual winner.

What the Judicial Experts Say 

Retired Justice John Paul Stevens had harsh words for his former conservative colleagues , saying they appallingly and inconsistently applied the law two years after a sweeping ruling dealing with campaign finance reform.

Citizens United, gave corporations, individuals, unions, businesses and advocacy groups, greater power to spend unlimited amounts of money to support or oppose federal election candidates. Stevens issued a bitter dissent in that case, months before stepping down from the high court after 35 years on the bench. He said Congress had long imposed reasonable limits on corporate spending as a way to curb the potentially corrupting influence by the wealthy, whose voices would be heard above all others in the crowded political landscape.

Stevens, said the five conservatives who gave corporations greater power in the name of free speech may now be rethinking, even regretting, their decision, based on related cases since that 2010 decision, but will never admit it.

In particular, he noted the Citizens United decision, which struck down the McCain-Feingold campaign finance reform law, said the First Amendment “generally prohibits the suppression of political speech based on the speaker’s identity.”

The 92-year-old former justice said the court will simply have to confront the question of whether the ruling applies to the ability of foreign corporations, potentially even terror groups, to spend freely in determining our elected officials. He hoped the justices would decide it does not.

Justice Stevens: “The court must then explain its abandonment of, or at least qualify reliance upon, the proposition that the identity of the speaker is an impermissible basis for regulating campaign speech,” he told the audience at a recent event at the University of Arkansas. “It will be necessary to explain why the First Amendment provides greater protection for [one group of] nonvoters than that of another [group of] nonvoters.

He also said that American corporations, unlike individuals, must be included in that broad category of nonvoters. Stevens predicted creating an exception for the foreign corporations “will create a crack in the foundation of the Citizens United majority” which is led by the conservatives under Chief Justice John Roberts.

President Obama, just days after the Citizens United opinion, said in his State of the Union address that it would “open the floodgates for special interests, including foreign corporations, to spend without limits in our elections.”

Justice Samuel Alito, named to the court by President Bush in 2006, was in the audience at the time and famously mouthed the words “not true” to Obama’s remarks. But Stevens said that while he has not talked with Alito about it, the mouthed words indicated “there will not be five votes” to sustain a majority if and when the court confronts the foreign spending question.

Stevens also noted time and logic has borne out the president’s warnings.

The high court earlier this year upheld a lower court ruling preventing noncitizens from contributing to federal political candidates. That, said Stevens, showed the justices clearly believe “the identity of some speakers may provide a legally acceptable basis for restricting speech” in election contributions.

“I think it likely when the court begins to spell out which categories of nonvoters should receive the same protections” enjoyed by U.S. corporations, “It will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by noncitizens, and possibly even those in which non-citizens have a substantial ownership interest.”

The Legislative Branch

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds and which may not necessarily  be run by Americans. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

For years, our political process was governed by an underlying principle: large organizations, primarily corporations, were not allowed to buy their way into elections. For 100 years, our laws reflected this principle:

  1.  Tillman Act in 1907, which prohibited corporations from using their treasuries to influence federal elections. Signed by President Theodore Roosevelt, the legislation recognized what had become abundantly clear: corporate influence corrupts elections.
  2. Taft-Hartley Act of 1947, Congress extended the same prohibition to labor unions. For generations, these regulations provided the bedrock of our election law that followed.
  3. McCain-Feingold, The original bill banned PAC contributions to federal candidates. It also had back-up limits, which included lowering PAC contribution limits from $5,000 to $1,000 and requiring that candidates receive no more than 20 percent of his or her total contributions from PACs. In McCain-Feingold II, the ban has been dropped, the total PAC contribution cap has been reduced from $5,000 to $2,500, and PAC money can make up 25 percent of total contributions.
  4. Bipartisan Campaign Reform Act passed in 2003. And for several election cycles, between 2004 and 2008, our system seemed headed towards more fair and transparent elections. But Citizens United changed everything.

Unfortunately, in the early 1990s lawyers and strategists exploited a loophole created by the FEC in the late 1970s. They created “soft money” writ large (a system that allowed the solicitation of unlimited contributions to the political parties from corporations, labor unions, and individuals).  The foreseeable result? Senators would solicit gigantic, unregulated contributions from the same corporations that had legislation pending on the Senate floor. Both parties were guilty. By the peak of the 2002 cycle, combined soft money raised from both Republican and Democratic committees reached nearly $500,000,000. The Republicans will probably spend that much themselves this year.

Almost immediately, the same corporate interests that fought McCain-Feingold set to work to dismantle it. In what was clearly an orchestrated effort by opponents of campaign reform, a group called Citizens United produced a movie savaging the record of then-Senator Clinton. Ostensibly intended to educate the public about conservative concerns regarding Clinton’s run for the presidency, the film was little more than a legal vehicle to challenge some of the common-sense restrictions enacted by the BCRA. Specifically, the creators of the film sought to challenge the BCRA’s requirement that electioneering communications—commonly known as “phony issue ads” that attack a candidate in the days before the election, but don’t explicitly advocate voting for or against that candidate—be subject to the same disclosure requirements and contribution limits as other campaign ads.

The Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications apply to this movie about Hillary Clinton?

Chief Justice Roberts apparently wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. What was originally  a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a several generations.

Now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[Five] Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

SCOTUS Judicial Activism

The most tarnished consequence of Citizens United is certainly the super PAC. Super PACs, now omnipresent across the political spectrum, can collect unlimited funds from corporations and individuals, and then spend that money to elect or defeat candidates for office.

A weak and questionably enforceable provision is that Super-PACs are not to “coordinate” with the candidate campaigns themselves. In practical terms, super PACs can now legally use barely-disclosed money from corporate treasuries (American or foreign) to produce blisteringly negative television ads attacking candidates and elected officials directly, while the candidate claims no knowledge or control over the content(preserving “clean hands”).

The Citizens United decision has also irreparably tarnished even the perceived legitimacy of our elections by increasing Americans’ uncertainty  and distrust of the campaign finance system. When a knowledgeable public sees the Supreme Court overturn 100 years of settled law, a cynicism sets in.  This inevitably gives the Super-PACs, facilitated by Citizens United, the ability to dominate our elections with hundreds of millions of dollars of secret and quite possibly “enemies of the U.S.” money. Many believe that the average participant’s small contribution is now irrelevant, and that the average person’s vote is grossly negated by the gigantic influence of an exceedingly small group of supporters, or certainly even a group of anti-Americans money.

The Deep Threat of Citizens United

The corrupt entities created by Citizens United erased the gains we enjoyed after the Bipartisan Campaign Reform Act. Now, instead of small-dollar, online donors, the most prominent actors in the 2012 election cycle are unnamed corporations and a small group of influential, mostly conservative, billionaires.

And the public is noticing.

  • A recent poll conducted jointly between the Washington Post and ABC News found a staggering reality: nearly seven in ten registered voters believe that super PACs should be illegal.
  • A recent survey conducted by the Pew Research Center found that public favorability of the Court dropped a full six percentage points (from 58% approval to 52%) since 2010, the year the Court handed down Citizens United.
  • Unlike public opinion during the George W. Bush administration, which saw a split in approval along party lines, now, both Democrats and Republicans disapprove. Pew found another striking figure: among self-identified independents, the Court’s approval rating is down twelve points since 2009 (from 64% approval to 52%).


While this drop in public faith in the Court is undoubtedly attributable to many factors, it’s clear that a large majority of Americans oppose the Citizens United decision and disagree with the Court’s assertion that corporations should enjoy similar First Amendment rights as each individual enjoys.

Now-retired Justice John Paul Stevens, in his stinging ninety-page dissent in Citizens United, recognized the danger in the majority’s departure from precedent regarding corporate regulation:

“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Justice Stevens was correct. Today’s framework for corruption cannot stand. If it does, I’m opening a sidewalk stand selling flowery shirts and straw hats because America will be the a society composed of stratified social classes: a huge impoverished working class and a ruling plutocracy, composed of the élites of business, politics, and the military—otherwise known as a “banana republic.”

Harvey Gold

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