Author: Ben Dalgetty
The recent Supreme Court ruling in Citizens United v. Federal Election Commission is the farthest-reaching, most disastrous and most outrageous ruling of the supposedly conservative Robert’s court. Two dramatic shifts in American politics are at stake now that the Court has shattered campaign finance precedent. The long and short of this judicial travesty is that under the umbrella of the First Amendment, it is illegal for the government to restrict political advertising and advocacy.
The few beleaguered attempts to date to ensure that the Republic remains indebted to “we the people” instead of the all-mighty dollar are gone, and the flood gates are open for sharply increased corporate, and possibly international, influence on our democratic process. Perhaps even more worrying, though, is the continued politicization of the only “independent” branch of government, the judiciary.
The case began when the conservative non-profit organization Citizen’s United produced the documentary “Hillary: The Movie.” This film was a withering attack on the then-Democratic presidential candidate, now Secretary of State, Hillary Clinton. The Federal Elections Commission decided to step in following its release, deeming the documentary “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” Because it was financed in part with corporate funds, the film fell under the convoluted regime of campaign finance regulation, including the Bipartisan Campaign Reform Act of 2002, more commonly known to its sponsors as the McCain-Feingold act. The Federal Election Commission said that although the movie could be aired in theaters and sold, Citizens United’s planned advertising campaign was sharply restricted and it could not air on television during the democratic primary.
The Supreme Court heard arguments on the case last spring, but in a surprising move told the counsels to prepare arguments for a broader debate on the first amendment rights of corporations in the fall. The 5-4 majority, breaking along the expected divide, decreed that the government does not have the right to restrict spending on explicit advertising for or against a particular candidate by labor unions and corporations.
Justice Kennedy, the closest thing to a swing vote on the polarized court, penned for the majority that “if the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The only bones thrown to the public were that corporations and unions have to disclose their financing of the advertisement – which, according to Kennedy, “permits citizens and shareholders to react to the speech of corporate entities in a proper way,” – and that direct contributions to candidates are still banned. But as Justice Stevens pleaded in the dissent, “The difference between selling a vote and selling access is a matter of degree, not kind.” This means that the upcoming midterm elections, which already promised to leave no legislator behind in displays of vehement partisanship and mud-slinging, will now be sponsored not by viewers like you, but by General Electric, Marlboro, Goldman-Sachs and possibly by foreign powers like China, Saudi Princes and Venezuela. That’s right, as revealed in a recent Center for Public Integrity investigation, foreign, government-owned corporations with U.S. subsidiaries like laptop-maker Lenovo, Houston’s Saudi Refining Company and the CITGO Petroleum Company now have no explicit restriction on electioneering.
Perhaps the most remarkable thing about this decision though, is that it shattered any remaining illusions about the distinction between judicial and political conservativism. Although the two have long gone hand-in-hand, there was still a line dividing them. Judicial conservativism, the professed philosophy of Roberts, Scalia, Thomas and Alito, means a respect for two things: the Constitution and previous Supreme Court decisions. So although this ruling was made under the auspices of the First Amendment, it ignored a litany of judicial precedent, including Austin v. Michigan Chamber of Commerce in 1990 and McConnell v. Federal Election Commission, both of which unhesitantly upheld the government’s right to restrict corporate and union bankrolling of elections. Instead, the Supreme Court has once again displayed an alarming preference for Republican-conservativism, and corporations have an overwhelming preference for the GOP brand, as opposed the venerable – although sometimes venial – tradition of judicial originalism.
Abandoning its tradition of intellectual, weighty and independent assessment of America’s convoluted legal framework, today’s Court more frequently resembles the hyper-partisan Senate in the procedural nature of its votes. As Obama scolded the Court in his State of the Union, elections “should be decided by the American people,” and Congress urgently needs to do whatever it can to shore up the floodwalls from the oncoming onslaught on we the people’s ability to elect officials representing our interests.
Ben Dalgetty is a senior Politics major. He can be reached at bdalgetty@oxy.edu.
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