Plutocrats bought one good political tactic for their over a hundred-million-dollar investment in Jeb Bush. Jeb's operatives who had him opposing the reviled Citizens United decision on the day before the New Hampshire primary earned their fee. A soundbite associating Bush with opposing Citizens United made Jeb appear to be the only Republican to contest Trump for support from the trans-partisan majority of voters who oppose the Court-created systemic corruption of politics. The timing worked. There was insufficient time before the primary for critics to analyze and explain how Bush's plan is far worse than Citizens United.
But let's try anyway, before he or another candidate uses the same ploy again.
The headline in The Hill for the day of the primary read: "Bush says he'd 'eliminate' Citizens United."
Wait a minute, one paused to ask. Is that "JEB," John Ellis Bush, brother of George W, scion of the Bush-Walker line of Wall Street plutocrats going back to Prescott? Jeb the high dollar candidate of 2016, the run-away winner of the normally decisive money primary? Yes it is.
Then he cannot possibly be talking about eliminating the notorious Supreme Court decision, the one widely marketed as the fount of all things plutocratic. Maybe he's instead talking about eliminating the right-wing plaintiff organization, Citizens United, for supporting an opponent in the primary? Nope.
But they seem to not like him now, whatever they thought before. Citizens United's president since 2000, David M. Bossie, quickly released a statement that Jeb "has embraced the left's view of the First Amendment. Jeb Bush now agrees with Hillary Clinton and Bernie Sanders to limit free speech in America." That gives Hillary a bit too much credit. But such is the Machiavellian complexity of systemically corrupt politics that one cannot know whether Bossie was paid by Bush to say that, or actually meant it, thinking it would somehow hurt Bush in the polls to distance him from plutocracy.
If Bossie is right, that would certainly be a newsworthy conversion experience. Did a Bush who was the leading beneficiary of plutocratic corruption in 2016, not to mention the rest of his life, really exit the family plutocratic rathole for the disinfection of sunshine, and find anti-corruption religion on the road to Manchester?
There are two issues that must be understood to analyze this apparent apostasy from Bush-family values.
First, Citizens United on close inspection is really not what it has been hyped up to be by professional activists.
Second, what Bush has really recommended is not so much to "eliminate" the corrupt Citizens United, but rather to legalize the far worse de facto regime that the case enabled, in the hands of Obama.
1. The Hype.
Citizens United is really two different decisions. One is a narrowly legal determination of the rights of the parties. The other is broadly political and therefore inherently illegitimate, "symptomatic of judicial overreach all too common on the current Court," as charged by one of the country's leading constitutional lawyers.
The judiciary is supposed to decide cases, which is what the legal part of the Citizens United decision did. But the political part of the decision illegitimately announced a set of broad new political principles to govern future cases, as applied most notably in Arizona Free Enterprise Club (2011) and McCutcheon (2014).
The proposition for which many liberal Democrat organizations have raised money, commonly to cover the costs of raising even more money, is that a constitutional amendment is needed to overturn Citizens United. Put aside for now the over-simplistic advocacy of the single most difficult policy tool in American jurisprudence, as if it were prerequisite for reforms already permitted under the current unamended Constitution. Here we are only assessing Citizens United as the recommended object of such albeit counterproductive advocacy, when all available political energies should be directed at dismantling Buckley v Valeo (1976).
It was Buckley that first established, with empty shell-game logic, that money is speech. It is that doctrine the Supreme Court invariably uses as its foundation to construct its every interference with campaign finance law, including Citizens United. Overturn Buckley and all the Court's corrupting decisions fall. But eliminate only Citizens United?
"Eliminating Citizens United" by law, or amendment as Bush proposed, could have a very narrow effect. It would not overturn Buckley. Thus, overturning Citizens United would not "embrace the left's view of the First Amendment," which sees Buckley's equation of money with speech to be a judicial scam. The majority which places democratic values above libertarian capitalist ideology knows that money is not speech.