And Then Everything Changed

For a little perspective some folks like to drop by the usual This Day in History feature – and on Thursday, January 21, you’d find out that in 1910, on that same date, the Great Paris Flood began, with the streets underwater for a week, the very same day that in 1793 King Louis XVI went to the guillotine, and while that was supposed to be a good thing, what followed, with Robespierre and the Reign of Terror and all that, certainly wasn’t. January 21 is not a good day in France. But that’s France. It was also the anniversary of the Boeing 747 going into commercial service (1970), and the Concorde (1976) – and you’d also discover that both Placido Domingo and Richie Havens had a birthday, each turning sixty-nine. And it was Attorney General Eric Holder’s birthday too, with Holder being ten years younger. That’s nice, but of course none of that matters. You drop by and look just so you don’t feel that bad about the day you’re having, or feel bad about how things are going in the world. You want to be assured that what seems extraordinary at the moment probably isn’t, in context.

Of course on that day the Democrats were in a deep funk, trying to figure out why they lost that special election in Massachusetts to a shallow young Republican, Scott Brown, with no discernible talents or experience and somewhat a dim bulb. It seemed that now healthcare reform was dead, and cap and trade, and any regulation of the financial industry, and most everything else. Bowen would be the forty-first Republican vote in the Senate, giving them their 41-59 majority, to rule America as they saw fit. Yeah, yeah – all legislation takes fifty-one votes to pass. But it takes sixty votes to end discussion and call for that vote – so it was all over. The Republicans could now make sure nothing came to a vote, and they said that is what they would do, on everything.

Matthew Yglesias offers a discussion of how this works, and ends with this:

The problem here is that the Republican strategy of holding out for total surrender is working just fine. They had an interesting theory that if you refuse to cooperate with efforts to make the country better, things won’t get better and the out-of-power party will benefit. The theory appears to be true.

And Jon Stewart, of all people, had just tweaked the Democrats:

STEWART: So there you go. Democrats have lost one special Senate election in our nation’s 15th most populous state. Let me see if I can break this down for you in mathematical terms: there has been a two percent swing in the power differential for 50 percent of our legislative branch of government, which of course makes up 33 percent of the federal hierarchy, so it’s… let’s put it another way. …

What the f–k? Two percent of 50 percent of thir- … oh right, I forgot! As the 41st member of the minority party, Brown will now be imbued with near limitless power over financial, military, and social policy, just as our founders had intended.

And so it is at ah… 11:04 fake Eastern standard time we at The Daily Show are gonna call it. Scott Brown is now apparently the 45th president of these United States of America! Wooo! Yeah baby! Welcome. It has been a long incredibly grueling couple of days since we first heard of this man. And now he’s in charge of everything.

Things were not going well, because Stewart was sort of right. And then Air America filed for bankruptcy and ceased live broadcasting on January 21:

It is with the greatest regret, on behalf of our Board, that we must announce that Air America Media is ceasing its live programming operations as of this afternoon, and that the Company will file soon under Chapter 7 of the Bankruptcy Code to carry out an orderly winding-down of the business.

Damn – GM and Chrysler went into Chapter 11 – reorganize, work out arrangements with your creditors and move on. Chapter 7 is where you cease operations and liquidate. The left couldn’t catch a break.

And many on the left decided it must be Obama’s fault – too much Mister Spock and not enough Captain Kirk. He just didn’t have the righteous outrage, the fire-in-the-belly thing. He wasn’t what he was supposed to be, or what everyone thought he would be.

But in the New Yorker, James Surowiecki offers this assessment of Obama’s first year in office:

Ultimately, I think Obama’s real problem has been a familiar one, namely that, inadvertently or not, he overpromised and necessarily under-delivered. This is a problem, in some sense, that all presidents run into, since voters tend to attribute to the President far more power over the economy than he actually has. But the problem was exacerbated in Obama’s case by the rhetoric of his campaign – “yes, we can” sounds great, but it doesn’t mean that it’s easy to recover from the bursting of an eight-trillion-dollar housing bubble – and the hopes that people placed in him.

I never understood the somewhat messianic qualities that certain voters ascribed to him: Obama has been exactly the kind of President I expected him to be (and the kind of President I hoped he would be), namely rational, pragmatic, thoughtful, and even-tempered. But clearly many voters – even, oddly enough, some of those who didn’t vote for him – expected a miracle worker. When they got a problem-solver instead, one with little authority over Congressional Democrats and no authority at all over obstructionist Republicans, they were disappointed.

Still, I don’t know that there was a way to avoid this – campaigning is, to some extent, always a matter of getting people to believe you’ll make more of a difference than you actually can. And I don’t think people’s disappointment should obscure what has been accomplished: if you had told people in March of last year, when predictions of complete doom were rampant, that the economy would be growing at a four-per-cent clip in the first quarter of 2010, few would have believed you. As has been pointed out numerous times, “Bad as things are, they would have been much worse without me,” isn’t exactly inspiring. That doesn’t make it any less true.

But the same day, January 21, we found out that none of that really matters, because it was actually a day when something big happened, that will one day show up in those on-this-day lists. It was the day of the Supreme Court decision on campaign finance – they struck down a long-standing prohibition on corporations using their general funds to run campaign ads in elections. It was Paris in 1910 – this would unleash a deluge of corporate money into the political system. And that could well change our political system entirely. Après moi, le delugeLouis XV saw what was coming.

And at salon.com, Emily Holleman covers what people think is coming – “The move, which has been praised as a victory for free speech on the right and derided as an attack on the very integrity of our democracy on the left, marks the biggest change in campaign finance law in over 30 years.”

It fit a pattern:

On Capitol Hill, the reaction to the Supreme Court’s decision fell fairly neatly along party lines. Senate Minority Leader Mitch McConnell, R-Ky., lauded it as a much-needed protection of First Amendment rights. President Obama, on the other hand, issued a statement calling it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Russell Feingold, D-Wis., expressed a similar sentiment, releasing a statement saying, “The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending our federal elections.”

But it wasn’t that clear-cut:

Trevor Potter, a Republican lawyer who served as general counsel to the John McCain 2008 campaign, told Salon, “I think it was a mistake of historic proportions by the Court – by five justices. I think it’s embarrassing to overturn a decent decision by the Court just because one justice [Justice Sandra Day O’Connor] has retired. I think the Court ignored its practices of avoiding major constitutional decisions and overturning acts of Congress if there is some other way of resolving the case. I think the Court has made a mistake by diving into what is a very political issue and by overturning its very recent precedent when the facts haven’t changed … [The Court also] makes a mistake by failing to understand the effects of this decision.”

Holleman does point out that the ruling overturns an earlier decision in 2003, which upheld the constitutionality of most of the McCain-Feingold campaign-finance bill – a rather activist thing to do. O’Connor was the swing vote back then, in the other direction. And Holleman notes that according to Potter, now this “is likely to lead to a significant impact on the legislative process that the Court doesn’t understand because not a single justice on the Court has served on a state legislature or in a legislative body.”

Potter is clear enough – “Corporations are going to have more legislative control because they will be able to lobby for their interests and either implicitly or explicitly will be able to threaten the spending of millions of dollars against members of Congress who don’t agree with them on votes.”

And then there’s Nick Nyhart, the president and CEO of Public Campaign, a nonprofit organization dedicated to reducing the role of special interest money in politics. He’s not happy and Holleman snags an exclusive interview with him:

On the phone with the Salon, he said, “The real bad news is for people who want healthcare legislation, people who want legislation that will protect our environment, people who want legislation who want to make sure that banks are their friends, not their enemies.”

Holleman notes that this is bad news:

Democrats have vowed to work to pass legislation that would restore as many of the restrictions as possible, but the ruling may still have serious and visible consequences for the 2010 midterm elections, with independent issue and trade organizations likely to emerge as major players. Lawrence Noble, a campaign finance lawyer who served as general counsel for the Federal Election Commission (FEC) for over a decade, told Salon that most corporations would be unwilling to make direct expenditures in support of candidates for fear of being seen as too political. Instead, they’re likely to donate to trade and issues organizations to do the campaigning for them.

“You will definitely see more money,” Noble said. “I don’t think you’re going to see your Fortune 500 companies expressly advocating candidates, but they will be giving to organizations that will.”

And she covers this memo released by the Republican election lawyer Ben Ginsberg and several colleagues at Patton Boggs:

It described 501c4’s and 501c6’s, as issue and trade groups are known under the tax code, as “likely to emerge as the biggest players in the 2010 and 2012 election cycle … Meager disclosure requirements of their donors will make them a favorite repository of funds for independent expenditures.”

The Ginsberg memo also noted that the ruling will “drastically alter the landscape for candidates and political parties.” For candidates, “controlling the issues they want to run on will become a real challenge, as will having sufficient funds to portray their positions and images.”

And the real kicker in the memo is that this could be the end of politics as we know it:

Unless the laws change, the political party as we know it is threatened with extinction. The parties do several things for their candidates and supporters – raise money and conduct independent expenditures, conduct voter contact programs and describe the party’s position on issues, often through issue advocacy. With the limits on the amounts and sources of funds they can accept, the parties will be bit players compared to outside groups that can now conduct those core functions with unlimited funds from any source.

This was, perhaps, the day everything changed, and there is this observation by Michael Waldman:

Why will this matter? Isn’t there a lot of money sloshing around in politics already? Consider Exxon-Mobil. In 2008, its political action committee (PAC) raised about $1 million from its employees and offices. Its profits that year – which it was legally barred from pouring into politics – were $45 billion. It was illegal for Exxon to spend that money on elections; now with this decision, it will be legal. Exxon or any other firm could spend Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care, etc.

And the Supreme Court didn’t have to do this:

There was no trial record; no reason to reach the decision; a rushed re-argument (followed by a delay that put this neutron bomb square into the middle of the political season). This matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court. In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations.

The ban on direct corporate spending in elections goes back to the 1907 Tillman Act, which prohibited corporate contributions in federal campaigns (it was assumed to cover independent expenditures, too). In 1947, the Taft-Hartley law made explicit that corporations and unions could not directly spend their treasury funds on electioneering. Congress – every time it has passed a law to deal with this – only has strengthened this prohibition.

And now that’s all gone.

But at the same link you’ll find the wise words of Joel M. Gora, a professor at Brooklyn Law and a long-time lawyer for the American Civil Liberties Union:

This is a great day for the First Amendment. The Supreme Court has invalidated a ban which prohibited all corporations and all labor unions from speaking out about government and politics in any way that even mentioned a politician or an incumbent officeholder running for election.

In ruling this ban unconstitutional, the Court emphasized what no one seriously disputes: the primary purpose of the First Amendment’s guarantees of freedom of speech, press, assembly and petition is to enhance democracy by insuring an informed electorate capable of self-government.

The First Amendment has always been based on the idea that the more speech we have, the better off we are, as individuals and as a people. The Citizens United case eloquently reaffirms and reinforces that core constitutional principle.

But see Juell Stewart:

While it’s been clear that lobbyists and Fortune 500 companies have been paying their way onto Capitol Hill for quite some time, at least lately there’s been some semblance of separation between corporate interests and political interests – if nothing else, at least we could rest easy knowing that corporations couldn’t legally directly campaign for a candidate, even if they contributed millions of dollars in donations and gifts behind the scenes.

But with today’s decision, those barriers are destroyed entirely. There’s nothing keeping the companies with the deepest pockets from purchasing prime ad time for the candidate of their choice and effectively owning them to act in their interests for the duration of their time in office.

It seems like we’re moving backwards, or at least swimming in a big ol’ pool of contradictions: on one hand, the government is seeking to place blame on the likes of Goldman Sachs and JP Morgan Chase for orchestrating the current worldwide financial gaffe, but on the other, the Supreme Court is giving companies of their ilk unprecedented political potential. If there’s a silver lining to this cloud, I can’t see it through the storm that’s heading our way.

And The Hill reports this – Schumer calls for hearings on “un-American” court decision – for all the good that will do. But perhaps the senior senator from New York knows of some way to flummox the Supreme Court, or he’s grandstanding.

But Slate’s Dahlia Lithwick was in the court chambers, watching as the Supreme Court turns a corporation into a real live boy so to speak, and she captures the conflict as, for the first time in a long, long time, justices decide to read the concurrences and dissents aloud, as it was that important, and that strange:

If Kennedy is tentative this morning and Stevens is horrified, Justices Antonin Scalia and Clarence Thomas say nothing at all. They don’t have to. They’re the architects of the edifice Kennedy has erected. Reading from his dissent, Stevens describes their “sweeping” attacks on Michigan’s campaign finance law in Austin v. Michigan Chamber of Commerce (one of the cases overruled today) as “having planted the seed that flowered” into today’s majority opinion.

While Stevens is reading the portion of his concurrence about the “cautious view of corporate power” held by the framers, I see Justice Thomas chuckle softly. (Scalia takes on this argument in his concurrence.) Stevens hammers more than once this morning from the bench on the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

But you can plainly see the weariness in Stevens’ eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort-of constitutional Frankenstein moment when corporate speech becomes even more compelling than the “voices of the real people” – who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is “to confuse metaphor with reality.” Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.

But that’s the nub of things, isn’t it? Some believe that corporations are just groups of people, with their own political view, and you cannot just tell them to shut up – that’s not fair. They too are the voice of the people, if you want to look at it that way.

But Richard L. Hasen, also at Slate, after a complete review of how this case came about, offers this:

Should the American people, through Congress, be able to decide that the vast economic inequality that comes with our wonderful capitalist system should not translate into vast political inequality? Justice Kennedy seems to believe that this would lead to the imminent decline of our democracy. Money is speech; speech may not be suppressed. But the last time I checked, the UK and Canada were vibrant, functioning democracies, despite the far more stringent limits they place on spending in their elections. …

What is so striking today is how avoidable this political tsunami was. The court has long adhered to a doctrine of “constitutional avoidance,” by which it avoids deciding tough constitutional questions when there is a plausible way to make a narrower ruling based on a plain old statute. That’s what the court did in last term’s voting-rights case – in fact, going so far as to adopt an implausible statutory interpretation to avoid overturning a crown jewel of the civil rights movement.

What we have in Citizens United is anti-avoidance.

And we have a mess. Everything just changed.

And Digby watches Howard Fineman on MSNBC talking about all the unintended consequences of the Citizens United ruling:

Fineman: There are more unintended consequences in this opinion than there are at a bachelor week-end in Las Vegas. For example, corporate boardrooms are going to become political cockpits now. Because if you’re saying that corporations are individuals that have full speech rights and can spend all they want on campaigns directly for candidates, then the decisions that are made by corporations in their boardrooms are going to be political acts. So it’s going to get very controversial at the corporate level. That’s an unintended consequence of this.

Her comment – “Is it really unintended?”

And she cites this:

I want to focus on the special problem that now arises for judicial elections. Just last term, Justice Kennedy (who also wrote today’s majority opinion in Citizens United), recognized the inherent risk of corruption that comes when someone spends independently to try to influence the outcome of judicial elections.

In Caperton v. A. T. Massey Coal, Justice Kennedy recognized the potential for bias of a judge whose election victory was helped by a $3 million independent contribution favoring the judge. He wrote the contributions created a “risk of actual bias” so “substantial” that due process required setting aside the court’s decision.

Today’s decision casts all that aside, engaging in the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).

This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases. Justice Kennedy backed away from Caperton today, leading Justice Stevens to note in dissent that Citizens United “unleashes the floodgates of corporate and union general treasury spending in [judicial] races.”

As Digby says:

Neat. The judges and the politicians will all be employees of the corporations.

We are well on our way to cutting out the middle man in this country. The middle man, of course, is the citizen. It will undoubtedly make things more efficient.

But we’re not well on our way. Now we’re there.

And it seems that some days are big, important days. We just had one. It’ll make the lists.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Campaign Finance Law, Citizens United Ruling, Government by the Corporations, Supreme Court and tagged , , , , , , , , , , . Bookmark the permalink.

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