The Not So Supreme Court: The Citizens United Dilemma
A Common Sense View of the Status of Democracy in America
The highly controversial Supreme Court decision in the Citizens United vs. Federal Election Commission case, which effectively grants corporations the right to spend unlimited amounts of money on election campaigns, is symptomatic of deep-seated contradictions and disorder in the election process, in the court itself, and, perhaps, even extending to the Constitution. Let us start with the decision.
In the opinion of the 5-4 majority, the decision was a reaffirmation of the First Amendment right of free speech. This decision directly equates money as speech, since the "political" speech it is referring to is "speech" purchased in the print and broadcast media.
My first question: Did the framers of the constitution, when formulating freedom of speech as an individual right, have in mind this form of political speech - this "money-speech"? In those times, there were basically only two forms of public speech: spoken and printed. We can easily extend printed "speech" to include pictorial forms of expression. Today, the concept of "speech" is greatly magnified by the diversity of society and the explosion of media, so that, as a legal concept, it becomes very complex, far beyond what I believe was the original intention of protecting individual rights.
"Speech" can be divided into different categories that, legally, may be treated separately. "Money-speech" - speech purchased with money - is actually a virtual commodity produced by a vast publication, broadcast, communications and advertising industry. As a public industry, it could be subject to monopoly, censorship, and other regulatory rules. Despite the First Amendment, freedom of speech is not totally free. According to Wikipedia, laws against libel (written) and slander (oral) existed in pre-revolutionary days. Today, laws exist that abridge the right to public obscenity, child pornography, inciting riots, false advertising, etc. - all forms of speech.
Furthermore, speech in the public media is not free; it is very costly, which, in itself, limits equal access to freedom of expression. Where restrictions are not imposed on the financing of "free speech", as in political campaigns, the result is a cacophony of speech, where quantity and repetition swamps out any meaningful and truthful expression. Elections become a battlefield of lies and propaganda instead of a debate of ideas.
By defining the expenditure of money in political campaigns as a form of speech, the decision greatly compromises equality of opportunity for political speech. The unlimited freedom of political speech of one party having large financial resources can drown out the freedom of speech of opposing parties with scant financial resources.
A most disturbing issue is the granting of First Amendment rights to corporations as opposed to persons. As written, the amendment appears to apply to people in general, whether individual or assembled. The decision to grant the privileges of "personhood" to a corporation seems farfetched, and is arousing serious reaction that aims to redefine corporate status. A corporation is an organization where only the managing elite has the right of expression. This is not a democratic concept where freedom of speech should be universal. The multitude of individual owners of the corporation, the stockholders, have no voice of their own, unless a major shareholder - only a passive, theoretical censorship by vote. As such, how would a corporation pass as a personage?
The Citizens United case is only one of many in recent history reflecting a systemic disfunction of the Supreme Court and its degrading effect on the concept of democracy in America. Among others: the confirmation of George W. Bush as president in 2000, and currently, the Hobby Lobby case whereby the religious beliefs of the company's owners were permitted to over-ride the legally-mandated rights of its workers to health benefits. (For a comprehensive history of Supreme Court injustices, read "Injustices" by Ian Millhiser.)
As we all know from grammar school, the Constitution organizes our government into three branches - the executive, the legislative, and the judicial - to provide checks and balances on the powers of any one branch. Theoretically, the ultimate power in our democracy rests with the people, who elect members of the executive and legislative branches and may by laborious process even amend the constitution. But in practice, the power behind the government resides in the dominant political parties and their corporate support which, by massive campaign electioneering directed at politically uninformed and uncommitted voters, strive to elect representatives to office who will carry out their political agenda that do not reflect the general interests and welfare of the populace, but rather those of a privileged elite.
The Citizens United decision opens the gates to a greater flood of money being poured into elections. This can only increase the influence of corporations and the super wealthy upon election results, to the detriment of the ideals of democracy as stated in the Preamble to the Constitution and the Declaration of Independence, for example. This eternal confrontation between the welfare of the general populace and the self interests of a privileged class extends back through the centuries to ancient history, marked by disparity of wealth, learning, and cultural traditions. It should not be mistaken for a healthy balance in enlightened government between conservative restraint and liberal excesses on the path of progress.
The ideals of democracy - to establish justice, insure domestic tranquility, promote the general welfare, secure the blessings of liberty, etc. - have gradually taken hold, based upon higher expectations of human rights through widespread learning, better communications, and the broadening culture and greater prosperity of the modern era. Today, democratic ideals are expressed most commonly as the need for greater equality among people. Equality is somewhat of a vague concept since there is much disparity between individuals; but in reasonable political terms, I would interpret it to mean eliminating poverty and relieving undue hardship, improving opportunities for education and access to cultural benefits of society, greater fairness in justice, and universal civility. There would be no extremes of poverty and wealth. The immense excesses of wealth we see today would go towards the common good.
The corporate power structure in America today, which gives a disproportionate advantage to the wealthy elite, primarily through the election process, belies these democratic principles. Genuine democracy is perishing, or never really existed. A weak democracy can resemble fascism in disguise.
Where to begin to address this dysfunction? I would question the integrity of members of the Supreme Court. We know, sadly, that members of Congress are subject to intensive lobbying by special interests that contribute heavily to their campaigns. Supposedly, members of the Supreme Court, being appointed, are not subject to pressure of this sort. However, in their selection and confirmation for the position, their judicial leaning may already be predetermined through party affiliation. During the confirmation process, the candidate swears or alleges to be politically impartial in interpreting the constitution. Based upon the pattern of judicial opinions once they are confirmed, a case could be made that a candidate may have perjured him- or herself during the confirmation process and therefore would be subject to removal on the basis of "bad behavior", according to the constitution.