Cross-posted from The Nation
The US Supreme Court may still retain some familiarity with the
Constitution when it comes to deciding the nuances of cases involving
immigration policy and lifetime incarceration. But when it comes to
handing off control of American democracy to corporations, the Court
continues to reject the intents of the founders and more than a century
of case law to assure that CEOs are in charge.
Make no mistake, this is not a "free speech" or "freedom of
association" stance by the Court's Republican majority. That majority is
narrowing the range of debate. It is picking winners. To turn a phrase
from the old union song, this Court majority has decided which side it
The same Court that in January 2010 ruled with the Citizens United
decision that corporations can spend freely in federal
elections -- enjoying the same avenues of expression as human beings -- on
that states no longer have the ability to guard against what
historically has been seen as political corruption and the buying of
The court's 5-4 decision in the Montana case of American Tradition Partnership v. Bullock significantly expands the scope and reach of the Citizens United
ruling by striking down state limits on corporate spending in state and
local elections. "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."
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Translation: if Exxon Mobil wants to spend $10 million to support a
favored candidate in a state legislative or city council race that might
decide whether the corporation is regulated, or whether it gets new
drilling rights, it can. But why stop at $10 million? If it costs $100
million to shout down the opposition, the Court says that is fine. If if
costs $1 billion, that's fine, too.
And what of the opposition. Can groups that represent the public interest push back? Can labor unions take a stand in favor of taxing corporations like Exxon Mobil?
Not with the same freedom or flexibility that they had from the 1930s until this year. Last Thursday, the Court erected elaborate new barriers
to participation in elections by public-sector unions -- requiring that
they get affirmative approval from members before making special dues
assessments to fund campaigns countering corporations.
How might it work? If Walmart wanted to support candidates who
promised to eliminate all taxes for Walmart, the corporation could spend
unlimited amounts of money. It would not need to gain stockholder
approval. It can just go for it.
But if AFSCME wants to counter Walmart argument, saying that
eliminating taxes on out-of-state retailers will save consumers very
little but will ultimate undermine funding for schools and public
services, the union will have to go through the laborious process of
gaining permission from tens of thousands, perhaps hundreds of thousands
of members. And even then, it will face additional reporting and
structural barriers imposed by the Court.
Campaign finance reformers had held out some hope that states might
be able to apply some restrictions on corporate spending, as Montana did
with its 100-year-old law barring direct corporate contributions to
political parties and candidates. That law, developed to control against
the outright buying of elections by "copper kings" and "robber barons,"
was repeatedly upheld. Until now.
Now, says Marc Elias, one of the nation's top experts in election law, "To the extent that there was any doubt from the original Citizens United
decision [that it] broadly applies to state and local laws, that doubt
is now gone." To whatever extent that door was open a crack, that door
is now closed."
There may still be a few legislative avenues left for countering the
"money power" of the new "copper kings" and "robber barons." But they
are rapidly being closed off by a partisan high court majority.
That's why US Senator Bernie Sanders,
the Vermont independent who has emerged as a leading proponent of moves
to amend the US Constitution to restore the rule of law in elections,
says: "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."
When billionaires can "spend hundreds of millions of dollars to buy
this election for candidates who support the super-wealthy," argues
Sanders, "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."
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John Nichols, a pioneering political blogger, has written the Online Beat since 1999. His posts have been circulated internationally, quoted in numerous books and mentioned in debates on the floor of Congress.
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