Big Money and Freedom of Speech, Part 2

I spent some time yesterday reading the Supreme Court decision in the case of Citizens United v. Federal Election Commission (there's a link to the text of the decision on yesterday's post). I have to admit that much of the intricate legal discussion was well beyond my feeble understanding of the law...nevertheless, I thought it was important to try to understand a decision that has such a potential impact on our electoral process.

Most of you will probably never read the entire document (I can tell you that my eyes are now bleeding and smoke is coming out of my ears from reading 183 pages of dense legal arguments). But if you don't read anything else, read the stinging dissent written by Justice John Paul Stevens. It's long (89 pages), but it's worth reading for its passionate analysis of Constitutional law, tradition, and the perceived shortcomings of the Citizens United decision. Here are a few excerpts from Justice Stevens' dissent...

"Corporate 'domination' of electioneering, Austin, 494 U. S., at 659, can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders 'call the tune' and a reduced 'willingness of voters to take part in democratic governance' ... To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled." (page 168)

"If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process." (page 170)

"The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today." (pages 172-173)

"Today's decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality." (page 176)

"At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics." (page 177)

I wish I could have written so eloquently about this disastrous decision. Many conservative theoreticians and apologists are trying to make the point that this decision changes nothing; I submit that they are wrong.

The proof will come when we see its effect on the Congressional elections this year, and on the presidential campaign of 2012. If you're an average citizen, good luck learning anything other than what those with the big money and the big power want you to hear.

Read Citizens United v. Federal Election Commission, and especially Justice Stevens' dissent, if you want to know what is happening to your voice in government. Such as it is.

Have a good day. More thoughts tomorrow.

Bilbo