Tag Archives: Citizens United

Speaking of Inequality…

There is enormous focus these days on economic inequality, and for good reason. The gap between the top 1% and other Americans is growing, the middle class that built the country and ensured social stability is shrinking, and the likely consequences of those phenomena aren’t pretty.

In the United States, our Constitution guarantees us only equality before the law. Critics may quote Anatole France for the proposition that “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread,” but there is much to be said for a system that protects individual liberties against encroachments by the state. In such system, however, efforts to ameliorate material deprivations are statutory, not constitutional, and as we continue to be reminded, statutory entitlements are vulnerable to efforts to punish poor people for their misfortune.

Most public discourse around “equality” tends to focus on these issues of legal and economic equality and the relationship—or conflict—between the two. We rarely focus on  a third kind of equality—democratic equality—despite the fact that it has a major influence on whether the country achieves the others.

Democratic equality simply means the equal right of each citizen to participate in the democratic process. It probably won’t come as a surprise to find that we aren’t doing terribly well on that front, either.

The influence of money in politics has grown exponentially since the Supreme Court’s ill-considered decision in Citizens United. (Actually, the problem started earlier, with the case of Buckley v. Valeo, when the Court first conflated money with speech) The result has been that those with money are able to “speak” much more loudly and effectively than the rest of us. When democracy becomes “pay to play,” there is no equality of participation.

It isn’t just money. In Indiana—which is unfortunately not an outlier— the legislature has used its power to make it more difficult to vote.

We have one of the strictest Voter ID laws in the nation—in order to cast a ballot, you must not only have a government-issued picture ID, that ID must have an expiration date. (This conveniently excludes the picture IDs issued by state universities.) Middle-class folks assume that it’s simple enough to obtain such identification, but for poorer people—particularly older black citizens who were born at home and lack a birth certificate—getting the necessary documentation can be both onerous and costly. (Despite pious rhetoric about deterring “voter fraud,” fraudulent in-person voting is virtually nonexistent.)

The Indiana legislature has also declined to enact other measures that encourage or facilitate voting by working-class Americans: keeping the polls open past six, establishing convenient voting centers, expanding early and absentee voting.

It’s bad enough that lawmakers see fit to erect barriers to voting rather than making it easier. But as I have previously posted, the most serious denial of democratic equality comes through partisan gerrymandering that produces an abundance of “safe” seats and eliminates voter choice.

Increasingly, especially at the state level, our legislators choose their voters—the voters don’t choose their representatives. So even when disadvantaged folks make it past the obstacles and manage to cast their ballots, they often find they are given no meaningful choice. A growing number of elections are uncontested.

As a result of democratic inequality, the people who would benefit most from the election of candidates willing to work for legal and/or economic equality have less access, less influence and less voice than their more privileged neighbors.

The system is broken.



A Consensus that Doesn’t Seem to Matter

I don’t recall which American humorist first delivered the line, “I’m not a member of an organized political party; I’m a Democrat” but for many years, “disorganized” was one of the kinder descriptions of the Democratic party.

Contemporary Democrats remain ideologically diverse, but these days, the divisions are far deeper in the Republican party, where extremists elected to Congress from some 80 deep-red (often gerrymandered) districts are far, far to the Right of most Republican voters.

Just how much does this fringe depart from the policy preferences of the Republican rank-and-file?  If we are talking about issues of campaign finance reform, a recent poll strongly suggests the answer is “pretty far.

Americans of both parties fundamentally reject the regime of untrammeled money in elections made possible by the Supreme Court’s Citizens United ruling and other court decisions and now favor a sweeping overhaul of how political campaigns are financed, according to a New York Times/CBS News poll.

The findings reveal deep support among Republicans and Democrats alike for new measures to restrict the influence of wealthy givers, including limiting the amount of money that can be spent by “super PACs” and forcing more public disclosure on organizations now permitted to intervene in elections without disclosing the names of their donors.

And by a significant margin, they reject the argument that underpins close to four decades of Supreme Court jurisprudence on campaign finance: that political money is a form of speech protected by the First Amendment. Even self-identified Republicans are evenly split on the question.

The poll confirms that most Americans–Republican and Democrat alike–reject the Court’s sunny conclusion that money does not corrupt the process or allow the wealthy to “buy” policies favorable to their interests.

The broader public appears to see things differently: More than four in five Americans say money plays too great a role in political campaigns, the poll found, while two-thirds say that the wealthy have more of a chance to influence the elections process than other Americans.

Those concerns — and the divide between Washington elites and the rest of the country — extend to Republicans.

Three-quarters of self-identified Republicans support requiring more disclosure by outside spending organizations, for example, but Republican leaders in Congress have blocked legislation to require more disclosure by political nonprofit groups, which do not reveal the names of their donors.

Republicans in the poll were almost as likely as Democrats to favor further restrictions on campaign donations, even as some prominent Republicans call for legislation to eliminate existing caps on contributions.

Perhaps if the more extreme partisans sent to Washington from safe, deep-red districts had to answer to more moderate–and more representative–Republican voters, their legislative behavior would be different.

Perhaps if a couple of the eminent scholars on the Court had ever run for or held political office, their lofty abstractions might be tempered with, and informed by, real-world experience.

And perhaps, if pigs could fly…..

Corporations and the First Amendment

We live in an era when everything–every case decided by the Courts, every law passed by Congress or a state legislature, every encounter between police and citizens–generates frightening headlines, hysterical tweets, and multiple emails from activist organizations exhorting recipients to take action (usually involving signing a petition and sending money).

So it’s easy to become jaded, to attribute the decibel level to partisanship, or a lack of perspective or analysis. I know I increasingly find myself thinking “just chill out. This isn’t the end of the world. Get a grip.”

Some things, however, prove to be every bit as worrisome as the scolds and screamers predicted. A grim assessment from a recent Harvard study suggests that the consequences of Citizens United and the line of cases leading up to it have been even more damaging than we were warned at the time.

Some of the study’s key findings include

While the First Amendment was intended to protect individual freedom of religion, speech and assembly, as well as a free press, corporations have begun to displace individuals as its direct beneficiaries. This “shift from individual to business First Amendment cases is recent but accelerating.”

Over time the high court has shown an increasing willingness to rule in favor of corporate interests, as a result “reducing law’s predictability, impairing property rights, and increasing the share of the economy devoted to rent-seeking rather than productive activity.”…

The ability for corporations to obtain relief from the courts gives them incentive to “place bets not on new technologies or marketing strategies, but on legal and political ‘innovation’” to protect markets they have and exclude new entrants. This also has the effect of causing regulatory agencies to reduce their efforts, because enforcing existing laws becomes increasingly difficult….

American public discourse tends to be very bipolar and “zero sum.” Policies are either right or wrong, good or bad. A right accorded to X must mean diminished rights for Y.

In the real world, however, the goal of policy is more often than not to achieve an appropriate balance between or among competing interests, all of whom are entitled to have their rights respected. Most Americans would agree that businesses have the right to participate in the marketplace of ideas, and that the law should respect the fiction of corporate “personhood” in the contexts for which that personhood was originally created.

It is when Court decisions and legislative actions create troubling imbalances of power, we risk substantial damage to our social ecosystem. Cases like Citizens United and Hobby Lobby have upset that balance, empowering corporations while disempowering individual citizens.

“These findings present a challenge to the view, articulated by the majority and concurrences in Citizens United and Hobby Lobby, that corporations and other business entities should be understood ‘simply’ as aggregations or associations of individuals, and so should not be distinguished from them for purposes of First Amendment analysis,” the author writes in his conclusion, continuing: “The corporate takeover of the First Amendment represents a pure redistribution of power over law with no efficiency gain — ‘rent seeking’ in economic jargon. That power is taken from ordinary individuals with identities and interests as voters, owners and employees, and transferred to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”

Sometimes, the decibels are appropriate.

Spawn of Citizens United

During my six years as Executive Director of Indiana’s ACLU, if my youngest son called the office when I was out, he’d leave a message: “just tell her Satan’s spawn called.” (He found the popular caricature of the ACLU endlessly amusing.)

I thought about “spawn” when a Facebook friend pointed me to a recent, truly bizarre ruling from the Seventh Circuit Court of Appeals.

When the Supreme Court decided, in Citizens United, that corporations have a right to free speech, it drew a dangerous equivalence between individual human beings and the legal constructs created to simplify the transaction of business and commercial transactions. In the immortal words of Mitt Romney, the Court ruled that for purposes of free speech, “corporations are people, my friend.”

Citizens United was itself the spawn of a series of unfortunate Supreme Court rulings that effectively equated money with speech. It thus had the effect of handing a huge megaphone to corporate entities able to outspend–and thus “out-shout”–individual voters. The ruling has been exploited to allow for the creation of so-called “SuperPacs,” and it has raised a number of thorny issues, among them: what happens when shareholders don’t agree with the corporate “message”? What if they don’t agree that money should be spent for such arguably non-business-related purposes?

The problems and questions that have emerged in the wake of Citizens United point to the essential absurdity of treating artificial constructs as if they were people. And now the ruling is spawning even more nonsensical progeny. If you have had trouble getting your head around the nature of a corporate right to “free speech,” try this one: the Seventh Circuit says corporations have a right to the free exercise of religion.

The court came to this bizarre conclusion in a case brought by K & L Contractors, a secular, for-profit company that is challenging the Obama Administration’s mandate that contraception coverage must be provided by employers as part of their health insurance coverage.  The court ruled that the fact “that the Kortes’ [the majority shareholders] operate their business in the corporate form is not dispositive of their claim,” a proposition for which it cited Citizens United.

The result in this case is clearly contrary to the law prior to Citizens United. For decades, the law has essentially recognized a trade-off: if you opt to do business in corporate form, you get to take advantage of the benefits that status confers, especially the ability to limit your personal liability for debts the corporation incurs. In return, you follow the rules that apply to corporations, including loss of the right to impose your religious faith on your employees.

Even for individuals, asserting a religious objection to a law of general application is seldom seen as justification for ignoring that law. If my religion requires that I use cocaine, or sacrifice my first-born, or chain up my spouse, the courts are unlikely to give me a pass from the rules against those behaviors.

Let’s hope Citizens United hasn’t changed that result.

In fact, let’s hope the Supreme Court comes to recognize how reckless that decision really was, and limits or overrules it.


Those Unintended Consequences

Tomorrow is election day–and I plan to breathe a sigh of relief, not just because the polls suggest generally albeit not totally sane consequences, but because we’ll have a respite from the incessant ads, if not from the punditry. (The effect of Hurricane Sandy, the impact of Facebook and Twitter, the various Wars on women, immigrants, poor people….the one prediction I am utterly sure of is that there will be two favored theories for every one talking head.)

I’m actually working on a theory of my own. It doesn’t explain any election result, and it may well be proven wrong when all is said and done, but I think it’s worth considering. I think Citizens United may have backfired on some of the people who were most elated when the decision was handed down, the people who were so certain the decision would give them the wherewithal to win big.

What do we know now about the unbelievable piles of money that were thrown at this year’s election?

Well, it muddled a lot of messages. All those SuperPacs, with their own consultants and PR “experts” didn’t necessarily adopt the messaging favored by the campaigns they weighed in on. The result in many places was a constant din of competing ads that didn’t reinforce any particular argument or advance a predetermined campaign theme. In some cases, this actually worked against the candidates the SuperPacs supported.

We also know that a lot of that money was wasted. (I don’t care, but I bet there are some corporate shareholders who do.) Not only was money wasted on inconsistent messaging, it  was wasted by being spent independently on radio and television advertising . Broadcasters have to sell time to candidates at a discounted rate; they don’t have to offer that favorable rate to SuperPacs and other independent entities, and they don’t. Giving money to the campaign and allowing the campaign to buy the air time (as was the case before the Court opened the money gates) thus produced a much greater “bang for the buck.”

There have also been a number of reports of last minute spending sprees by the SuperPacs in states that are uncontested–states where the Presidential vote is a given and there is no other high-profile race to be influenced. Maybe it’s a last minute effort to drive up popular vote totals, but I doubt it–at this point, everyone but Seamus the dog has decided who they are voting for, and even if they haven’t, the airwaves are so saturated, new ads are probably occupying that coveted 2:00 am slot that used to be Ronco’s. It’s more likely that this last minute spending binge is being promoted by the only people other than broadcasters who have really benefitted from Citizens United–the politicians, consultants and media buyers running the SuperPacs and 527s.

Perhaps the most ironic consequence of all, however, is slowly dawning on state political parties. As several pundits have pointed out, SuperPacs have nationalized the election to an unprecedented degree. One result is that state party chairs who initially welcomed the prospect of big bucks flowing into their coffers have found their own influence and control considerably diminished. (It’s the Golden Rule, fellas: he who has the gold, rules.)

When Citizens United was decided, there was considerable glee among Republicans, especially, who felt–not without reason–that the ensuing flood of dollars would mostly benefit the GOP. Many of the political people I know–on both sides of the aisle–believed that a virtually unlimited supply of corporate money would assure a Romney romp to victory and would grease the numerically probable Republican takeover of the Senate. Both outcomes look pretty dubious right now, although anything can happen between now and Tuesday; should Romney pull out a win, it will be by a hair, and at this writing, the Senate takeover looks pretty unlikely.

An old political friend of mine likes to remind me that, in contests where the opposing candidates both have sufficient resources to get their messages out, the guy with more money doesn’t necessarily win. If a candidate is gaffe-prone, clueless or generally unlikeable–or if he has a message that voters reject–campaign cash alone usually won’t fix that. Money can buy a lot of lipstick, but as a general rule, if people decide your candidate’s a pig, lipstick isn’t enough.

I hope he’s right. Right or wrong, we’ll know soon.