ACLU Wins! And destroys the political process in the U.S.

[clear eye]

I guess this is a particularly apt topic for election day, though not a happy one.

SCOTUS is expected to announce this week that it has ruled in favor of Citizens United in the case of Citizens United v. Federal Election Commission. The decision will overturn a section of the law passed in 2002 specifically prohibiting corporations and unions from spending money from their treasuries to electioneer during certain periods before primaries and elections. It also sets a precedent to overturn or reinterpret parts of other laws going all the way back to 1907 that limit corporate financial participation in election campaigns.

On July 9th of this year, the ACLU posted on its website that it had filed an amicus brief in support of Citizens United in that case. http://www.aclu.org/free-speech/citizens-united-v-federal-election-commission

According to the post:
"Section 203 of the Bipartisan Campaign Reform Act of 2002 prohibits unions and corporations (both for-profit and non-profit) from engaging in 'electioneering communications...The ACLU has consistently taken the position that section 203 is facially unconstitutional under the First Amendment because it permits the suppression of core political speech, and our amicus brief takes that position again."

The case had originally come before the court as a narrow issue of whether or not a particular cable video, Hillary: The Movie, was electioneering. At the time of its production, Clinton was the Democratic frontrunner.

According to the Bennan Center for Justice here's what happened next.

Background on the Case

In the lead-up to the 2008 presidential election, Citizens United, a non-profit corporation, produced a 90-minute documentary entitled Hillary: The Movie. The film criticized Hillary Clinton at a time when she was the top contender in the Presidential Democratic primary. Citizens United intended to show the film by purchasing airtime to run the video using video-on-demand technology.

Section 203 of the 2002 Bipartisan Campaign Reform Act (popularly known as "McCain-Feingold") prohibits corporations from using their general treasury funds to fund "electioneering communications" in the 30 days before a primary and the 60 days before a general election. "Electioneering communications" are defined as broadcast advertisements that clearly identify a candidate for federal office and target a significant portion of the relevant electorate. Citizens United filed an as-applied challenge against Section 203 seeking declaratory and injunctive relief holding that Hillary: The Movie could not be constitutionally classified as an electioneering communication.

On June 29, 2009, rather than issuing a decision in the case, the Supreme Court ordered additional argument and directed parties to file supplemental briefs addressing the question of whether, to resolve this case, it is necessary to overturn either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which upheld a regulation on corporate treasury fund spending in Michigan state elections, and the part of McConnell v. Federal Election Commission (FEC), 540 U.S. 93 (2003), which upheld the "electioneering communications" section of BCRA, 2 U.S.C. § 441b.

SCOTUS, rather than rule on the narrow issue of whether or not Hillary: The Movie was an "electioneering communication", in effect gave the plantiffs (the corporate group "Citizens United" ) extra time to prepare a broader argument on corporate campaign contributions in general, and a heads up on which precedents might be problematic and have to be answered for them to prevail. The ACLU filed its amicus brief in time to help Citizens United prepare and argue the larger issue.

According to Cenk in his Sep. 9th show, this action of SCOTUS was almost unheard of and "pure judicial activism".

Last week after the likely disposition became known, Sen. Feingold spoke on the Senate floor about the devastating ramifications, calling the decision "a wholesale uprooting of the principles which have governed our elections for so long".

Common Cause points out in yesterday's press release that the expected broadly-based decision

that corporations and unions have a constitutional right to unlimited "political speech" (i.e., spending) would lead to subsequent challenges to the federal ban on corporate and union political spending in effect since 1947, the federal ban on corporate and union campaign contributions in effect since 1907, and similar laws in more than 20 states. A narrower ruling would continue the path toward deregulation, albeit on a slower pace, but still have the effect of allowing more corporate and union money into the system and encouraging more direct challenges to remaining regulations in the future.

In a report on their website, Common Cause also notes that

If the Supreme Court lifts the ban on using corporate profits for political spending, corporations would likely spend vastly more than labor unions. During the 2008 election cycle, corporations outspent organized labor 4:1 on political action committee (PAC) contributions, but 61:1 on lobbying.

(emphasis mine)

In plain and simple language, if you think our elected officials are already too beholden to corporations and too dismissive of the needs of the public in general, you can't overestimate how much worse it can get. The input of individuals will be utterly drowned out.

The rationale for allowing "free speech" for corporations, and which has been floating around for years, is that corporations are "persons" under the Constitution, and as such have a right to political discourse as absolute as humans have. Most academic Constitutional scholars think that's a stretch to put it mildly. I pointed out in one of the first entries I posted to my DU journal that the logical extension of that would be to let them vote. The fact that they don't have this privilege to me indicates that deep-down no one actually believes this absurd assertion. The other glaring argument against giving corporations "free speech" is that the humans composing the corporation can't by law speak freely when representing the corporation. They are constrained to speech which advances corporate financial interests because of their legal obligation to shareholders, no matter their personal beliefs on the issue or candidate under discussion.

As Common Cause points out, the only remedy is to institute, quickly, some form of publicly financed campaigns for all federal elections. Since Congress would have enact a law to bring this about, time and money are against us. More on this soon.

Thank you so much, ACLU.