What to do about the decision by U.S. Supreme Court to — in the words of Wisconsin Senator Russ Feingold — "(ignore) important principles of judicial restraint and respect for precedent" in order to make corporations the dominant players in American politics?
Of course, there will be legislative scrambling at the local, state and federal levels. The decision by Chief Justice John Roberts and four other justices to reject history and precedent in order to put a radical pro-corporate spin on the First Amendment throws into question rules designed to regulate even the worst campaign abuses by business interests.
Feingold, the Wisconsin Democrat who leant his name to the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002, will be working overtime to defend not just the progress he has made as a reformer but a century of clean-government legislation.
"It is important to note that the decision does not affect McCain-Feingold’s soft money ban, which will continue to prevent corporate contributions to the political parties from corrupting the political process. But this decision was a terrible mistake," says the Wisconsin senator. "Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century’s worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections. In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible."
When all is said and done, however, that may not be enough.
It may be that the United States Constitution will need to be amended in order to restore to the Teddy Roosevelt principle:
"All contributions by corporations to any political committee or for any political purpose should be forbidden by law," said Roosevelt in the first years of the 20th century, when he was also proposing public financing of federal election.
The court’s ruling in the case of Citizens United v. FEC is a game-changer that, in the words of Feingold says corporations "can just open their treasuries (and) completely buy up all the television time, and drown out everyone else’s voices."
There’s a small measure of nuance in the ruling.
In their 5-4 decision, the majority maintained restrictions on direct donations by corporations to candidates and political parties.
But corporations – with their immense resources and their immense desire to influence the political and governing processes – will be able to spend as freely as their like (on television commercials and other forms of communication) to secure the election results they seek.
It’s a recipe for democratic disaster, as wealth and power will define the debate that sets the parameters of our politics.
Says Senator Charles Schumer, D-New York: "The Supreme Court just predetermined the winners of next November’s elections. It won’t be Republicans. It won’t be Democrats. It will be corporate America."
To paraphrase a particular television network, there will be no fairness and no balance.
That threat demands a response sufficient to the challenge it poses to electoral democracy. As Lisa Graves, the executive director of the Center for Media and Democracy, says: "We cannot just wring our hands, in my view, and let this stand. There is a great deal of work to be done."
Graves, a lawyer with long experience in both the executive and legislative branches of the federal government, offers a savvy analysis of the motivations behind the court’s ruling.
"When I worked for the Senate Judiciary Committee reviewing President George W. Bush’s judicial nominees and their agendas, I feared this day would come. That’s why I tried to help keep John Roberts off the appellate court, and then was so saddened the day he was appointed and when I saw President Bush promote him to become Chief Justice after I had left the government," she says. "In reading the biographies, writings, and speeches of right-wing nominees, it became clear to me that a revolution in the law was being fomented to undermine the power of ordinary people to regulate corporations in their communities. Today’s decision is a huge gift to corporations from a Supreme Court that has been radicalized by right-wing ideology, whose political agenda was made obvious in the Bush v. Gore case and whose very political decision today only makes things worse. I think we have to rebuke the Court’s arrogant decision and make sure the law puts Americans before corporations."
There will be talk of legislative interventions, the best of which is almost certainly rapid passage of the Fair Elections Now Act, which would set up a system of public financing of elections.
"This would establish citizen-funded elections," says Harvard Law School professor Larry Lessig.
But there are a number of reformers who fear that any legislative initiative will be made difficult by the high court’s misinterpretation of the first amendment to read: whoever has the most money gets the most free speech.
That stranglehold on real democracy may, in the view of these activists, only be broken by a constitutional amendment, and democracy and clean government campaigners are proposing just that – with some suggesting the traditional route of having Congress propose an amendment, while others imagine asking legislatures across the country to call a constitutional convention to develop an amendment.
Graves and others are backing a Move to Amend campaign, which debuted a website for activists moments after the court ruling came down.
The Move to Amend coalition declares:
On January 21, 2010, with its ruling in Citizens United v. Federal Election Commission, the Supreme Court ruled that corporations are persons, entitled by the U.S. Constitution to buy elections and run our government. Human beings are people; corporations are legal fictions. The Supreme Court is misguided in principle, and wrong on the law. In a democracy, the people rule.
We Move to Amend.
We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United, and move to amend our Constitution to:
1. Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
2. Guarantee the right to vote and to participate, and to have our votes and participation count.
3. Protect local communities, their economies, and democracies against illegitimate "preemption" actions by global, national, and state governments.
Within hours of the decision, more than 3,500 Americans had signed on as backers of this particular initiative.
Whatever the specific route, and whatever the specific language (Graves suggests: "No corporation shall be considered to be a person who is permitted to raise or spend money on federal, state, or local elections of any kind"), the goal of any amendment strategy should be to enshrine in the Constitution of this land the fundamental democratic principle proposed more than a century ago by a Republican president, Teddy Roosevelt: "All contributions by corporations to any political committee or for any political purpose should be forbidden by law."