How Right-Wingers on the Supreme Court Sold Our Democracy Down the River -- Again
When the gavel fell in the U.S. Supreme Court’s chamber after the justices overturned Montana’s century-old ban on corporate electioneering on Monday, it drove another nail into the coffin of American democracy.
Of course, America’s campaign finance laws have been riddled with loopholes for years. What’s new and scary is the emerging audacity and overt politicization of the Supreme Court.
Taken narrowly, the 5-4 ruling, American Tradition Partnership v. Bullock, affirmed the rights of corporations to participate in Montana elections by overturning a 1912 ban that top Montana political leaders and judges said was needed to keep the Big Sky State’s low-cost elections free from undue influence by wealthy interests.
“Montana’s arguments… were already rejected in Citizens United or fail to meaningfully distinguish the case,” the Supreme Court majority’s one-page ruling said.
More broadly, the Court’s right-wing majority reaffirmed the controversial 2010 ruling with impunity. By not revisiting any aspect of Citizens United, they declared that new facts upending the decision did not matter. Nor would they admit that they had erred on key points in Citizens United, or that public outcry over the ruling meant much, or that major loopholes unleashed by Citizens United – and follow-up court rulings – were relevant.
“Were it up to me, I would vote to… reconsider Citizens United or, at least, its application in this case,” wrote Justice Stephen Breyer, in a short dissent agreed to by justices Ginsburg, Sotomayor and Kagan. “But given the Court’s per curiam [majority] disposition, I do not see a significant possibility of reconsideration.”
The refusal to revisit Citizens United will likely reverberate in political circles for years.
Today’s biggest campaign finance loopholes—those that allow shadow groups known as super PACs that can take multi-million-dollar donations and run the nastiest political ads, all while pretending that they aren't coordinating their actions with candidates—are now going to become an anti-democratic fixture on the American political landscape.
What does it mean when the Court’s ruling majority cannot look at new facts objectively, cannot admit that they erred, and cannot review aspects of a recent decision despite calls to do so from the country’s best legal minds, top federal elected officials, majorities of voters asked in numerous nationwide polls, and four associate Court justices? It means, as political analyst James Fallows wrote this weekend in the Atlantic, that most reasonable observers would conclude that the United States was experiencing “a kind of long-term coup if we saw it happening anywhere else.”
Who is leading this putative coup led by the Supreme Court's conservatives?
The answer is the Republican Party, as the beneficiary of most of 2012’s big-dollar loopholes and whose officials have filed most of the lawsuits that have resulted in the ongoing deregulation of campaign finance laws. Also winning big are a handful of the richest Americans, typically old men whose multi-million-dollar political gifts barely dent their vast family fortunes. And it is also major corporate players, who, emboldened by Citizens United—and federal failures to enforce most campaign finance laws—have flocked to newly politicized non-profits that can spend millions on political advertising but don’t have to disclose their donors' identities.
Lost in the deregulatory melee are the voices of ordinary Americans.
“The current situation, wrought by Citizens United, is nothing short of a gross debasement of our democracy and the idea of one citizen, one vote,” said Paul S. Ryan, senior council for the Campaign Legal Center, who filed a brief urging the Court to revisit the 2010 ruling. “In theory the decision is naïve. In practice it is shameful.”
“The Supreme Court continues to deny reality when it comes to assessing the impact of independent spending on elections,” said Public Citizen president Robert Weissman, in a statement that typified the reaction from campaign reform advocates. “The Court is not going to overturn Citizens United, at least in the near term. It thus falls on the people to overturn the Court, through a constitutional amendment.”
Weissman and other amendment proponents omit another possibility: that the best way to counter a runaway Supreme Court in the short term would be electing a president that would appoint a fairer minded federal judiciary, starting at the Supreme Court. Three justices, two conservatives and one liberal, are now in their mid-70s and approaching retirement.
A Nation of Men, Not Laws
The scariest aspect of the Supreme Court’s right-wing majority is their self-satisfying radicalism. They are anything but conservative jurists -- true judicial conservatives would hold facts in higher regard than their ideological beliefs and partisan leanings.
One of fundamental precepts of American democracy is that there is a difference between the "rule of law" and the "rule of men." The judicial process is based on establishing the facts in court and having judges interpret the laws in a fair-minded if not skeptical manner.
The problem with the Citizens United ruling, and indeed with Buckley v. Valeo, the 1976 campaign finance ruling that ushered in today’s big money-dominated elections, is that key elements of both these decisions were not based on the facts. They were based on the beliefs of justices in the majority about what they wanted the facts to be.
In Buckley, the Court looked at a new law passed by Congress that limited campaign donations and campaign spending. It wanted to rush out a decision well before the 1976 presidential election, but didn’t have a factual record about how the new contribution and spending limits would work, according to Burt Neuborne, who was involved in the case and is now legal director of the Brennan Center at NYU Law School.
So the Court asked both sides to negotiate a settlement—and that’s why that decision reads like a scholarly article, not a court case. Law professors cite Buckley as exactly what courts are not supposed to do procedurally. Yet it laid the foundation for today’s campaigns—and was the most defining campaign finance ruling until Citizens United.
Buckley unleashed a political demon. It ruled that individuals could spend unlimited amounts on their own in a political campaign. The justices held that the only reason to limit such spending was to prevent corruption, but concluded that individuals could not corrupt themselves. For years, campaign consultants and election lawyers followed this logic—and the way it was applied by judges—and created fictitious political committees that were supposedly unconnected to candidates and thus exempt from regulation. Thus, monied interests came to monopolize the airwaves and stifle electoral debate.
Over the years, campaign finance reformers have waged a number of legal battles with loophole-embracing lawyers and have only won a few—mostly to preserve campaign contribution limits, donation disclosure laws, public financing schemes, and the long-established precedent that prevented corporations from spending freely in elections.
The corporate ban fell with the 2010 Citizens United decision. In it, the Supreme Court said that corporations and unions could make unlimited donations to non-candidate political committees—so-called “independent expenditures.”
It also said that because these committees called themselves independent, they were independent and were exempt from regulation. And they said that independent political committees could not be corrupted, and that political corruption had to be close to bribery—and not just create an appearance of impropriety.
Another federal court decision that quickly followed Citizens United tied these threads together and unleashed 2012’s super PACS, in which former aids to various presidential candidates (mostly on the GOP side of the aisle) created these groups, started taking multi-million-dollar donations, and used the money for ads backing their ex-bosses.
These loopholes were unmasked and reported on by major media organizations. This record of multi-million-dollar gifts by donors who were then seen meeting with specific candidates, as well as the record of independent groups that ran negative ads that were a counterpoint to the candidate’s positive ads, were some of the "facts" that prompted many people—editorial boards, advocates, elected officials, and associate Supreme Court justices—to ask the Court’s majority to revisit Citizens United.
When in late 2011 the Montana Supreme Court upheld its century-old ban on corporate electioneering, it was widely seen as a challenge to Citizens United—because under the Constitution’s Supremacy Clause, state courts have to follow the U.S. Supreme Court’s rulings. The Montana Supreme Court said that Montana had a unique political history, and had all kinds of legal reasons to uphold its 1912 ban on corporate electioneering.
Most election law scholars believed that Montana would be overruled, but they also held out hope that the U.S. Supreme Court would rehear aspects of Citizens United, because the decision’s claims that independent political committees—like super PACs—were in fact independent had proven to be false in 2012. Moreover, they held out hope that the 2010 ruling’s declarations that independent expenditure groups could not be corrupted would also be re-examined. That appeared to the very kind of conflict of interest Buckley said could be regulated—but which Citizens United said was not a problem.
Two Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg, issued a short statement when the Court took the Montana case, saying they hoped their colleagues would use the case to revisit these aspects of Citizens United. A variety of legal briefs were filed arguing the same thing. Arizona Republican Sen. John McCain and Rhode Island Democratic Senator Sheldon Whitehouse said wealthy interests were using the threat of outsized donations to super PACs to threaten elected officials—giving another real-life example of Citizen United’s anti-democratic impact.
Former top American Civil Liberties Union officials, who broke with the group’s fundamentalist First Amendment stance, wrote a brief reminding Citizen United’s main author, Justice Anthony Kennedy, of his prior decisions holding that not all corporations were treated equally for First Amendment purposes.
None of these arguments swayed the Court’s right-wing ideologues.
“Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so,” Justice Breyer wrote in his dissent.
Campaign finance reformers pledged to keep fighting in the wake of Monday’s ruling. Many states across the country, including Montana, are looking at ballot measures calling on Congress to send a constitutional amendment to the states that would return the power to control campaign finances to Congress.
But there is no getting around the bottom line. The Montana ruling at the Supreme Court is a dark day for American democracy. The Court only makes campaign finance rulings periodically and often decades apart. In the meantime, the special interests and people with the deepest pockets have new power to dominate and distort all stages of the democratic process—from elections to lobbying.
Whether the solution is a constitutional amendment or electing a president who will not appoint ideologues to the court is an open question. What is clear is that American democracy is certainly weakened and possibly imperiled when the highest court deliberately chooses to ignore facts and consequences that impact how the public elects its representative government.