How Bush’s "War on Terror" Unleashed a Flood of Corporate Political Dollars and Undermined American Democracy
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Counter-factual histories can be tricky, but it would be hard to imagine that, had Kerry won in 2004, his picks for the Supreme Court would have joined justices Scalia, Thomas and Kennedy in ruling for Citizens United.
The decision, which overturned parts of the McCain-Feingold campaign finance reform law, was rendered based on an argument that Citizens United had itself abandoned during the first round of arguments in March of 2009: the claim that the relevant portions of the law violated Citizens United’s right to free speech. It was the conservative justices themselves who ordered the case re-argued fully a month after a ruling had been expected, asking the lawyers for both sides to present the arguments that they’d earlier abandoned.
In his dissent, Justice Stevens noted that it was a highly unusual move, and that the court had further ruled on a Constitutional issue that it didn’t need to consider in order to decide the case before it -- the diametric opposite of the principle of “judicial restraint.” He charged that the conservative majority had "changed the case to give themselves an opportunity to change the law." Stevens called the decision “a rejection of the common sense of the American people,” and noted that it was “a strange time” to so. “While American democracy is imperfect,” he wrote, “few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
Senator John McCain said he wasn’t surprised by the decision. "I went over to observe the oral arguments,” he told the Washington Post, and “it was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [McCain-Feingold]."
He added that justices of the past that supported financing limits, despite their usual conservative positions, had experience in politics and knew the ramifications of their decision.
"I would point out that both Justice Rehnquist and Justice O'Connor, who had taken a different position on this issue, both had significant political experience," McCain pointed out. "Justices Roberts, Alito and Scalia have none.”
It’s yet to be seen whether American democracy, already threadbare before Citizens United, can withstand the flood of special interest ads that are likely just beginning to emerge in full force in this election cycle. As I wrote back in July, the reality of the threat was spelled out in no uncertain terms by Rep. Alan Grasyon, D-Florida, at a conference on Citizens United. “We’re now in a situation,” he told the crowd, “where a lobbyist can walk into my office…and say, ‘I’ve got five million dollars to spend, and I can spend it for you or against you. Which do you prefer?’”
If that kind of coercion should become routine on Capitol Hill, it’ll represent another example of the Chalmers Johnson’s “abstract subject” -- empire’s inherent incompatibility with democracy. The decision to invade Iraq -- the very idea that the appropriate response to terrorism is to wage shooting wars against nation-states -- may prove to be our system’s undoing. But not because our politicians spent the nation’s treasure securing our assets overseas, neglecting our needs at home and causing domestic unrest that required a heavy and anti-democratic hand -- the focus of most historic critiques of empire. In this case, it was simply a matter of an unpopular and notably inept administration holding on to prevail in an election it wouldn’t otherwise have won at a crucial juncture in the history of the Supreme Court.
This November, we may tragically reap what the American electorate, cowed into thoughtless submission by the specter of international terror, sowed in 2004.