So, I'm sure I've gone off several times about the current US Supreme Court and how much I hate it. haha And also about corporations and money in politics and blah blah. haha Well, I wrote a research paper on it for class haha I think it's fairly comprehensive and figured I'd post it in case anyone was at all interested or feels like discussing/debating it or something :p It's all welcome haha
I Have No Influence, and I Must Scream
There’s something about democracy that is inherently appealing to people, granting its participants the assurance that their voices will be heard by the state and reflected in the laws it enacts. Americans may find security in the fact that their freedom to public and political speech, symbolic and otherwise, is protected by the Constitution, the highest order of law. While not all speech may be constructive, it is argued that there should never be a reason to limit it, because each voice is equal in a democracy, and broader means of expression can only serve to strengthen these Western principles. This unquestionably includes the right to make monetary contributions in support of political candidates who align with one’s personal goals and philosophy, as it effectively serves to augment one’s own voice in the political sphere. At least, this is certainly what many believe. After all, how might narrowing the means for speech ever be considered the democratic thing to do, and who is honestly to say how much “support” one may give? Well, quite simply, it should come to little surprise that some of the more affluent members of society are thus granted the ability to speak with a “larger voice,” while the less fortunate members are made to sit idly by in whispers and hope that they will be heard, leading to the following conclusion: By allowing unlimited political expenditures by campaigns and committees, under the guise of “free speech,” the very essence of a democracy is diluted, and its functionality is impaired, skewed forever in favor of the very rich.
This is a widely contested notion in the United States, often dismissed on the grounds that entirely free speech is a fundamental and pure American value; however, it should be understood that the prospect of narrowing and expanding the definition thereof is neither new nor radical. In the case of Schenck v. United States (1919), the Supreme Court challenged the concept of total freedom of speech when it reached its decision to institute what it believed were justified limitations. Justice Holmes, in the Supreme Court majority opinion, asserted the following:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent… [For example, the] most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
This was a clear victory for the American people; by narrowing the scope of “free speech,” this case in fact helped to shape it and ultimately benefited the cause of open democracy. Moreover, the courts have further strengthened the voice of the people through definitional expansions of such freedoms to include nonverbal expression as a form of “speech.” However, as it will become evident, the inclusion of political expenditures as a mode of protected speech, in tandem with the development of the independent expenditure committee, has effectively rendered the common citizen powerless and without influence in the modern American political system.
In the landmark case Buckley v. Valeo (1976), the Supreme Court was faced with a defining question: Was a law that limited the amount of expenditures and contributions to campaigns a violation of the First Amendment? Although the court held that “a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression” and is thus unconstitutional, it also recognized that “the [contribution] ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process” (Buckley v. Valeo). Furthermore, Justice White offered his own opinion, concurring in part and dissenting in part to the court’s decision, declaring that “without limits on total expenditures, campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build, and, with it, the temptation to resort in ‘emergencies’ to those sources of large sums, who, history shows, are sufficiently confident of not being caught to risk flouting contribution limits.”
Nevertheless, the precedent set in this case to broaden the definition of speech to campaign expenditures ultimately laid the groundwork for the decision in Citizens United v. Federal Election Commission (2010), where it was affirmed that the First Amendment extended to a “speaker [who] is an association with a corporate form,” granting corporations the right to spend unlimited amounts of money on behalf of political candidates. Justice Kennedy, who wrote the case majority opinion, defended the ruling with the assertion 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.” By this reasoning, would it not be the logical next step toward the advancement of citizens’ rights to expand the purview of the First Amendment to corporate bodies, who serve and act within society and in accordance with its laws, so their speech, too, might be heard in the political arena? It might certainly appear so; however, in its expansion, there might also appear to have been substantial misstep, as 4 of the 9 Justices would join in dissent of this split decision, and President Barack Obama would respond to call it “a major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans” (Liptak).
Such a ruling would likely not have held in the Burger Court, which presided over the Buckley case, as its definition of political expenditure as free speech accounted for campaigns seeking to broadcast their ideology, not necessarily for corporations or individuals to potentially flood an election with money and corrupt the process, as Justice White had warned. As the Burger Court was often seen to regard the rights of individuals over the state or majority, striking down anti-abortion and profanity legislation and ruling to prevent governmental abuse through unwarranted electronic surveillance, the Roberts Court, which presided of the Citizens United case, has repeatedly shown an affinity toward the expansion of corporate rights, even if at the expense of the individual, seemingly without regard to the potential consequences. Joan Biskupic, a lawyer and former Supreme Court reporter for USA Today (2000-2012), The Washington Post (1992-2000), and Congressional Quarterly’s Weekly Report (1989-1992), characterizes the Roberts Court accordingly in her USA Today article on a 2011 defining Supreme Court sex discrimination case. She details the case and the court’s trend as follows:
The decade-old Wal-Mart case had been the largest job-discrimination class action in history, potentially covering 1.5 million women with potentially billions of dollars in liability for the nation’s largest private employer… That 5-4 ideological split [to throw out the case] has become a familiar one in major cases favoring business, and Monday’s decision reinforced a high court pattern making it more difficult for individuals, whether employees or consumers, to bring their grievances to the court. (Biskupic)
If there would prove to be a trend of staunch corporate favoritism, in even a single Justice, it would raise the question of whether a decision, such as that in the 5 to 4 Citizens United case, was reached based on constitutional provision, however influenced by ideological perspective, or by simple predisposition to vote a certain way, despite the details and implications of a case itself.
One point of intrigue sits with the sitting Justice Clarence Thomas. According to Supreme Court correspondent of The New York Times and finalist for the 2009 Pulitzer Prize in explanatory reporting Adam Liptak, “Eight of the justices did agree that Congress can require corporations to disclose their spending… Justice Clarence Thomas dissented on this point.” Justice Thomas would oppose this provision on grounds that the “right to anonymous speech” ought not to be violated, as disclosing contribution information might compromise the security of donors and subject them to “property damage, or threats of physical violence or death, as a result” (Citizens United v Federal Election Commission). However, no other Justice, liberal or conservative, found him or her self in agreement with Thomas. In an article by Mike McIntire, part of a team that won the 1999 Pulitzer Prize for breaking new reporting and New York Times investigative reporter since 2003, Justice Thomas is revealed to have accepted large sums of money in personal gifts and investments for his wife’s political endeavors from various persons – the cases of whom Justice Thomas preside over – placing him in a peculiar position in regard to judicial ethics. According to McIntire, the justice department was asked to “investigate whether Justices Thomas and Antonin Scalia should have recused themselves from [Citizens United] because they had attended a political retreat organized by the billionaire Koch brothers, who support groups that stood to benefit from the court’s decision.” While Supreme Court Justices are not bound to the federal judges’ code of ethics, many other Justices in similar situations in the past have either recused themselves from a case where there might be a conflict of interest or simply “instructed that the [donation] money be given to charity” (McIntire).
The decision in Citizens United would effectively allow for corporations to form “Political Action Committees” with the ability to spend unlimited amounts of money in support of or against any particular candidate, insofar as they not directly coordinate with a candidate. By the court’s ruling, the difference between the campaign contributions and unlimited political expenditures becomes merely semantic, allowing individuals and corporations to effectively bypass the limitations initially set by congress and directly influence the electoral process. Thus, the political arena becomes an uneven playing field, allotting those with the support of wealthy individuals – typically those who fight for legislation that would benefit those very individuals – an overwhelming advantage over those candidates with more modest means of campaigning. Steven Bertoni, a Forbes magazine staffer, in charge of covering the world’s billionaires, interviews one of the 2012 GOP primary’s most prominent PAC donors and billionaire, Sheldon Adelson, who had already given a pro-Newt Gingrich committee $11 million. During the interview, Adelson states “I’m against very wealthy people attempting to or influencing elections, but as long as it’s doable I’m going to do it. Because I know that guys like Soros have been doing it for years, if not decades” (Bertoni). To have a campaign funded solely by a single person, as is suggested in the article, would undoubtedly warrant at least some kind of loyalty from the candidate, wouldn’t it?
It should certainly stand to reason that such flamboyant expenditures in the name of any particular candidate would not be made without some expectation of a return on investment with regard to his or her economic policies, and not simply stemming from a candidate’s platform on social issues. It might be compared to the kind of return on investment expected from corporate lobbying efforts for lower tax rates or less regulation. This line of thinking would necessarily bring one to ask the question, “How much in return might an individual or a corporation expect for the monetary investments put toward this kind of effort?” Well, according to host Alex Blumberg’s interview with Raquel Alexander, an Assistant Professor and tax policy researcher at the School of Business, University of Kansas, and Susan Scholz, an Associate Professor at the same university with a PhD in Business Administration from USC, on NPR’s Planet Money, “The American Jobs Creation Act benefited hundreds of multinational corporations with a huge, one-time tax break. Without the law, companies that brought profits earned abroad back to the US had to pay a tax rate of 35 percent. With the law, that rate dropped to just over 6 percent. It saved those companies billions of dollars.” Alexander and Scholz conducted a study where they calculated the amount the corporations ultimately saved from the tax rate and “their research showed the return on lobbying for those multinational corporations was 22,000 percent. That means for every dollar spent on lobbying, the companies got $220 in tax benefits” (Blumberg). Furthermore, despite its name, the act “does not adequately address either job creation or international competitiveness,” according to a report published in Urban-Brookings Tax Policy Center by Professor of Economics Kimberly A. Clausing, the recipient of two Fulbright Research awards and whose research has also been supported by external grants from multiple institutions. “Instead, it offers several narrow tax breaks that will have little positive effect on the U.S. economy and several negative effects on the U.S. tax system… Further, the international tax provisions in the legislation… work to undermine U.S. taxation of corporate income” (Clausing). This case clearly demonstrates the level of damage incurred by the influence of money in politics, with the potential to invite poisonous legislation and the corruption of political officers.
Citizens of the United States should urge their congressmen and congresswomen to support a constitutional amendment calling for the repeal of the Roberts court’s decision to grant corporations and “associations of persons” the same rights allotted to human persons. The precedent was set in the Buckley case such that candidates could spend what money they had without congressional limitations, but held that campaign contributions ought to remain limited, so that no one individual or group of individuals could effectively pump a campaign so full of money that the integrity of a candidate, and thus the electoral process, would be compromised. While this case would later be used to justify the Supreme Court’s 5-4 decision to allow corporations to spend on a candidate’s behalf, the spirit of the decision reached in the original case was utterly disregarded by the Roberts court in the Citizens United case. Even without questioning the motives and honesty of Justice Thomas, who actively engaged in what can widely be recognized as several acts of open bribery, and Justice Scalia, who joined Thomas in the Koch brothers’ political retreat, in their votes in favor of corporate personhood, the nature of the decision itself is contrary to the values of a Western democracy. Can one, in opposition to the corporate behemoths that essentially come to be the primary funders of political campaigns, ever expect to be elected? What becomes of “One Man, One Vote,” when one man’s couple million dollars in any direction can effectively elevate a candidate to savior-status in the eyes of the public, if perhaps at the cost of his integrity, or crush the modest opponent under an endless wave of smear and negative ads? It is clear that the nation this decision creates opens the door and invites the most unscrupulous of profiteers – corporate, congressional, judicial, and otherwise – to exploit and manipulate the common citizen for enormous personal gain. Other than to say that the United States is “so free,” it grants even its corporations the opportunity to participate in its political process, there is absolutely no viable reason to accept the ruling in the Citizen’s United case and it should repealed.
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Works Cited
Bertoni, Steven. “Billionaire Sheldon Adelson Says He Might Give $100M to Newt Gingrich or Other Republican.” Forbes 21 Feb. 2012. Web. 21 Mar. 2012.
Biskupic, Joan. “Supreme Court Limits Wal-Mart Sex Discrimination Case.” USA Today. 21 June 2011: no pg. Web. 2 June 2012.
Blumberg, Alex. “Forget Stocks or Bonds, Invest in a Lobbyist.” Interview. Podcast. NPR. 6 Jan. 2012. Web. 24 Feb. 2012.
Buckley v. Valeo. No. 75-436. Supreme Court of the US. 30 January 1976. Web. 2 June 2012.
Citizens United v. Federal Election Commission. No. 08-205. Supreme Court of the US. 21 January 2010. Web. 2 June 2012.
Clausing, Kimberly A. “The American Jobs Creation Action of 2004: Creating Jobs for Accountants and Lawyers.” Urban-Brookings Tax Policy Center 8 (2004): 5. Web. 2 June 2012.
Liptak, Adam. “Justices, 5-4, Reject Corporate Spending Limit.” New York Times. 21 Jan. 2012: no pg. Web. 2 June 2012.
McIntire, Mike. “Friendship of Justice and Magnate Puts Focus on Ethics.” New York Times. 18 June 2011: no pg. Web. 2 June 2012.
Schenck v. United States. No. 249-47. Supreme Court of the US. 3 March 1919. Web. 2 June 2012.
