For Sale: 21st Century American Democracy

The Bad Case of Citizens United

money speech-silence

By T.L. Dayen

On January 21, 2010 Koch Industries, Inc. became a person, and the $890 million dollars it plans to spend on its chosen candidates in the 2016 presidential and congressional elections became protected speech. This is not fiction. According to the United States Supreme Court, this is a fact. On January 21, 2010, in the case Citizens United vs. The Federal Elections Commission, the United States Supreme Court (SCOTUS) Ruled that all ‘money is political speech’, and therefore limits placed on political campaign contributions are in violation of the 1st Amendment and ‘unconstitutional.’ In the same Ruling, the Court deemed that all corporations were legally and constitutionally ‘political people,’ and as such, also protected under the 1st Amendment; not bound to disclose the recipients of their campaign contributions to the Federal Elections Commission (FEC), their shareholders or to the public (Citizens United vs. Federal Elections Commission, 2010).

Democracy is a “government based on the principle of majority decision-making that has been freely and equally elected by that majority” (Encarta Dictionary: English ‘North American’). Is our democracy for sale to the highest bidder? The only way to protect our democracy from the degrading forces of greed within our political systems is to strip the dominant influence of money from the democratic process altogether. We must get unlimited money out of our politics; it is not speech.   Those protected under the 1st Amendment must be defined as living, breathing American citizens, while corporate shareholders and public citizens must have the right to know which policies and politicians that corporations and the uber rich are aligning themselves. Citizens United vs. the Federal Elections Commission must be overturned by a Constitutional Amendment or Constitutional Convention.

In The 2010 case of Citizens United v. FEC, (Ruling) SCOTUS Ruled that placing limits on corporate and individual campaign contributions was a violation of the First Amendment free speech clause, and that corporate political speech is protected by the First Amendment; as follows:

“Prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation.… the Court invalidated §608(e)’s expenditure ban, which applied to individuals, corporations, and unions, (because) it fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process.” (Opinions, 2010).

”Government lacks the power to restrict political speech based on the speaker’s corporate identity.… No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.… It is irrelevant for First Amendment purposes that corporate funds (may) have little or no correlation to the public’s support for the corporation’s political ideas.… All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech” (Opinions, 2010).

With all due respect, similar to and in the spirit of the disastrous 1896 Plessy v. Ferguson Ruling that all but solidified discrimination and civil inequality in this country, this Ruling by the Chief Justice Robert’s Court has severely undermined the rectitude of “civic” equality that our democracy was intended to preserve. 21st Century politics was already overwrought under the debauchery of greed. Less than two years before this Ruling, 2008 was already the most expensive election in history. According to the FEC (2008), a total of 5.3 billion was spent, and nearly 1.3 billion of that was spent by Political Action Committees (Pac). This 2010 Ruling, however, gave birth to the Super Pac. Now, unrestrained by congressional campaign finance reforms of 1974, corporate contribution limits and public disclosure requirements are no longer constitutional (Kerbo, 2012). Super Pac’s are limitless political ATM machines funded by undisclosed corporate ‘special interests’ and the uber rich. Another record was set with 7 billion spent in the 2012 elections (FEC, 2012); that’s a dollar for every human on planet Earth. This Ruling has only served to shred the last veil of sanctity separating civic equality from inequity within the American electoral and legislative processes.

It’s hard to gage specifically how the influence of unlimited money in our electoral process is translating in both our electoral and legislative processes. We know how much Super Pac’s are spending in our elections; but from whom?   Following the “quid pro quo” trail was easier when political donors were required to disclose how much and to whom they were pouring their millions. In 2005, there were 2000 registered Political Pac’s (Kerbo, 2012). By the first two months after the Ruling however, there were 8000 (FEC, 2012). We can however, follow the money in other ways. While Pac’s are not politicians, they are entities that collect money on behalf of causes that are represented by politicians (i.e. low taxes, the environment, etc.). We can look at the special interests that appear to be benefiting from current legislative policy and get a pretty good idea of where the money is coming from and going to.                    

It’s important to remember that although I am quoting figures from national elections, mid-term congressional elections (non-presidential) are just as, if not more, vulnerable to secrete unlimited special interest money. Many more Americans vote in national elections (’08, ’12), so these expenditures are more representative of the electorate as a whole, but those of private and corporate financial privilege and the Pac’s they fund, are using quieter mid-term elections (’10, ’14) to gain political influence by proxy in both state legislatures and our U.S. congress. The U.S. congress has been functionally controlled by the Republican Party since 2010, even when the nation has twice voted for a Democratic president. For the purposes of time and space, I will focus on just two special interests that many would consider the two most powerful interest groups financially holding our lawmakers and our country hostage to their bidding. They are the National Rifle Association (NRA) and the oil industry (Big Oil).

The NRA’s Political Victory Fund PAC has spent just under 37 million over the last two election cycles (FEC, 2014) to block reasonable federal gun safety regulations (Andrews, 2013). The NRA represents gun manufactures that make money selling guns, clips and ammo, not safety. But the NRA’s political influence extends beyond financial. They also represent a 2nd Amendment constituency that relies on the NRA to rate or score each member of congress by their gun legislation voting record and report this back to them. And apparently they believe that Republicans are more likely to play along, because in 2012, just 25 Democrats received NRA contributions compared to 236 Republicans. The NRA combines its campaign contributions with their influence over their voters to maintain gun legislation favorable to the gun industry. This would explain why even when 82 percent of Americans demanded gun safety reform after the heinous Sandy Hook Massacre, congress refused to require simple background checks on 40 percent of American assault weapon ownership (Andrews, 2013).

Big Oil is perhaps the most historically egregious confiscator of legislative favor within the political system. Oil is the most profitable industry in human history. Quarterly ‘profits’ exceed multiple billions; breaking their own records every year (Maddow, 2012). Big oil spent over 70 million on their preferred candidates in just the last national election. However since then, they’ve also spent 150 million in lobbying efforts on Capitol Hill. Even with a staggering national deficit threatening to undermine America’s global fiscal standing, the United States Government has been ‘giving’ the oil industry annual tax subsidies of nearly 2 billion of American taxpayer money for nearly 100 years (Kroll, 2014). Even so, since 2005 we’ve actually had a national bi-partisan consensus to end Big Oil corporate welfare. This includes former President George W. Bush, Forbes, The Heritage Foundation; five oil corporation CEO’s and a Wall Street poll showing 74 percent of American support – all with the exception of the U.S. Congress. The last time Congress took this to a vote in 2011, it did not pass (Maddow, 2012). We are all still giving the wealthiest industry in the history of money 2 billion a year in tax subsidies. That is called “political power!”

This brings me back to Koch Industries, Inc., an oil, gas, fracking and tar sands corporation owned by David and Charles Koch. These brothers have pledged to spend just under 1 billion dollars on their chosen candidates in 2016. They are notoriously politically active, and forgive me if I speculate that these two must find this whole “buying political influence” thing a bit fun for them; perhaps a welcome distraction. After all, the Koch oil tycoons are worth 42 billion dollars combined. Even though just these two men alone have pledged to spend in 2016, nearly the same amount of all Super Pac money spent in each of the last two elections, it is still only 2% of their total net worth (Confessore, 2015). What will be the return on their investment? Will it be social issues? According to the LA Times, after the 2010 mid-term election Republican takeover of state legislatures, the Guttmacher Institute counted 49 of our 50 states that brought forward 916 measures having to do with women’s reproductive rights (Abcarian, 2011). On the Federal level after the 2012 mid-terms, the 112th Congress went straight to passing over 159 Bills regarding abortion and birth control (U.S. Congress, 2012). Totals on the 113th Congress who were bought in 2014 are still out.

So what will David and Charles want; passage of Keystone; the repeal of the EPA Clean Air Act? The answer to this question is the most disturbing aspect of this paper; because perhaps there is no longer a clear money trail that reveals the clear quid pro quo and the clear culprits. Perhaps there is no one thing that any one person in any one state or district can accomplish for the Koch’s or any other oligarch or multinational corporation getting ready to fund the campaigns of those who will further their interests. Perhaps it is rather a preferred ideology that guides and underlays every decision behind every legislative effort nationwide that this top 2 percent of our population is now able to purchase on the installment plan. Perhaps it is a vision of the nation itself; one that serves their own success and achievement that they intend to buy under Citizens United. But what of the vision of average Americans who make up 98% of this country?

What of the voice of the average American majority who are now silenced by the thundering “speech” of the elite few? Can accountability be meted from a silent constituency?   The new disenfranchisement does not block our power to vote; it blocks the power of our vote. What good comes from counting all votes when only certain votes count? Justice is not silenced dissent; it is the liberated debate of its premise. However, within Citizens United v. FEC itself, we have one dissenting voice that we must all shout in unison:

Dissenting Argument Citizens United v. FEC

“. . . Corporations have no consciences, no beliefs, no feelings, no thoughts, [and] no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established” Justice Stevens (Opinions, 2010).

            As of today, sixteen states have passed a resolution for a constitutional amendment to overturn Citizen United. If your state is not one of them, urge your communities to urge your legislators to take this crucial step. Then join and support the national effort for a constitutional amendment or constitutional convention. Americans reversed Plessy v. Ferguson because it was the right thing to do for all Americans, not just a few. We shall, and we must, do the same with Citizens United; for the same reason.

References

(2008) Federal Elections Commission. DOI: FEC.Gov

(2012) Federal Elections Commission. DOI: FEC.Gov

(2012) Opinions. United States Supreme Court. DOI: Supremecourt.gov/opinions

(2014) Federal Elections Commission. DOI: FEC.Gov

Abcarian, Robin. (May, 2011). Anti-abortion measures flooding state legislatures. Los Angeles

Times.

Andrews, Wilson. (January, 2013). How the NRA exerts influence over Congress. Washington

Post Politics. DOI: www.washingtonpost.com/wp-srv/special/politics/nra-congress/

Confessore, Nicholas. (January 26, 2015). Koch Brothers’ Budget of $889 Million for 2016 Is

on Par With Both Parties’ Spending. New York Times, N.Y. DOI:

http://www.nytimes.com/2015/01/27/us/politics/kochs-plan-to-spend-900-million-on-2016-campaign.html?_r=0

Kerbo, Harold. (2012). Social Stratification and Inequality; Class conflict in historical,

comparative and global perspective. McGraw Hill, N.Y.

Kroll, Andy. (April, 2014) . Triumph of the Drill. Mother Jones Magazine. DOI:

http://www.motherjones.com/politics/2014/04/oil-subsidies-renewable-energy-tax-breaks

Maddow, Rachel. (March, 2012). Senate filibuster kills (another) bid to end oil subsidies. The

Rachel Maddow Show: MSNBC Reports. DOI: msnbctv.com

US Congress. (2012). Congressional bills/issues. Federal Government. DOI: OpenCongress.com

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