Everyone seems in agreement - today's landmark Supreme Court decision will radically change the American political landscape.
The Sunlight Foundation:
The ramifications of today’s Supreme Court decision in Citizens United v. FEC are breathtaking – opening the floodgates of political money such as we have never seen before. If you thought Congress was ‘for sale’ to the highest bidder, you ain’t seen nothing yet. Nothing less than a fundamental rethinking of our campaign finance laws is demanded as a result of today’s decision.
Or, from the opposite end of the spectrum, Swift Boat Veterans For Truth lawyer Benjamin L. Ginsberg:
It will put on steroids the trend that outside groups are increasingly dominating campaigns. Candidates lose control of their message. Some of these guys lose control of their whole personalities.
Parties will sort of shrink in the relative importance of things and outside groups will take over more of the functions — advertising support, get out the vote — that parties do now.
In light of all of this, I found myself wondering whether Chief Justice John Roberts had said anything, anything at all, about the past 100 years of campaign finance law and his burning desire to overturn them at his confirmation hearings just a few years ago.
While I couldn't find anything specifically on campaign finance, I did find this remarkable statement:
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
I have no agenda, but I do have a commitment...I will remember that it's my job to call balls and strikes and not to pitch or bat.
Words have got to fail you at this point. Roberts' fake modesty seems incredibly disingenuous, given that in Citizens United, he barely hid his eagerness to take a narrow case and give it broad, politically realigning consequences. The New York Times, in a scatching editorial published this evening, denounced the Court's activism and seized on this hypocrisy:
This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign.
The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.
Indeed, just a couple months ago, Politics Magazine noted that there was plenty of room for "incrementalist" Roberts to deliver a narrow ruling in this case:
There are two things about the Citizens United case that seem to really irk McCain and Feingold. The first is the Supreme Court broadening the scope of the case during the rearguments to consider the constitutionality of the law. The Court could still rule narrowly in the case and avoid that question. It could say that provisions of McCain-Feingold don’t apply to video-on-demand. It could also say that the law doesn’t apply to a group like Citizens United, which only took small contributions from corporate donors.
"Until a few months ago," Feingold said on the Senate floor, "no one had any idea that the Citizens United case would potentially become the vehicle for such a wholesale uprooting of the principles that have governed the financing of our elections for so long."
And John McCain had this to say:
Whatever one thinks of a First Amendment right for corporations," he said, "it is not appropriate for a nondemocratic branch of government to raise a question of the broadest scope at the last minute when such a question was not raised in the trial court.
Of course, many questioned how geniune Roberts' "balls n' strikes" philosophy was at the time, given his prominent role in the ultra-conservative - some would say radical - Federalist Society. Maybe it's no coincidence that like Roberts, other Federalist Society members have tended to be rather low-key about the group's judicial aspirations:
Complaining that the society serves as "the secret handshake" of Mr. Bush's judicial nominees, Senator Richard J. Durbin, an Illinois Democrat on the committee, has repeatedly questioned them about the group's mission statement. Their answers, he said, have "ranged from the amusing to the preposterous."
Carolyn Kuhl, who later withdrew her stalled bid for an appeals court seat, wrote, "I did not participate in writing the mission statement."
"Therefore I am unable to opine," she said.
Jeffrey S. Sutton, who won a seat on the United States Court of Appeals for the Sixth Circuit, said, "I have no idea what their philosophy is."
Standing in contrast to this stated lack of philosophy or mission, the Washington Monthly's Jerry Landay writes:
The Society¹s origins can be traced back to 1979--the year before Ronald Reagan¹s victory--when a legal scholar named Michael Horowitz published a tract on the public-interest law movement, exhorting conservatives to overturn a half-century of liberal dominance of the legal establishment. This could be done, he wrote, by indoctrinating or winning over succeeding generations of law students, lawyers, and judges.
Of course, it's easy to argue that electing a conservative President while there are Supreme Court vacancies will net you a conservative Supreme Court Justice. Nothing surprising or at all wrong about that, or about a conservative legal group nurturing conservative causes.
On the other hand, it would be wrong - dangerous, even - to ignore the role wealthy private donors have played in cultivating groups like this.
Since its inception, the Federalist Society has counted among it's supporters many of America's richest men. Some of these are familiar names like Richard Mellon Scaife, heir to the Mellon Bank fortune and controller of major stakes in Gulf Oil and Alcoa Aluminum. The Washington Post estimates Scaife has donated an astounding 2 billion dollars to various conservative advocacy groups since the 70s, including 2 million to the Federalist Society that produced Roberts.
Other donors to the Society include David and Charles Koch, two of America's richest men and owners of America's largest privately held energy company. Koch Industries is the second largest family-owned business in the U.S., with revenues of over $100 billion.
Or there's the Lynde and Harry Bradley Foundation, which according to Sourcewatch, has been described as attempting to "return the U.S. -- and the world -- to the days before governments began to regulate Big Business, before corporations were forced to make concessions to an organized labor force. In other words, laissez-faire capitalism: capitalism with the gloves off."
In American political discourse, we sometimes fall into the trap of assuming that ideology exists in a vacuum. But in reality, it hardly ever does - the poor tend to overwhelmingly support left-wing policies because they are economically better for them. Similarly, the Scaifes and Kochs of the world, through their advocacy groups, have painstakingly cultivated a group of scholars and legal philosophy that overwhelming favors the rich.
That's why we shouldn't get too hung up on the vagarities of corporate personhood, or railing against capitalism in general, when arguing this issue, because that will get us stuck in a tired left vs right debate. Unfortunately, many conservatives and right-leaning independents have gotten caught up in a knee jerk reaction to issues like this - if it's big government, I hate it; if it helps business, it's good.
But the fact is that 99% of America's corporations are not going to benefit from this ruling a bit. Your average small business doesn't have the time, money, or even interest to run around trying to bribe politicians. Billionaires like Scaife and Koch, on the other hand, can and will.
At the end of the day, corporate personhood is just a legal convenient construct that allows them and other powerful interests to do all they really care about - use their massive fortunes to more directly to control the political process, the same way offshore accounts allow them to evade tax laws.
And this decision, made possible by the votes of foundation-financed conservative ideologues Justices Roberts and Alito, might be their crowning achievement. The amazing thing is that it only took 30 years.