Column by Gene Nichol
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I am Texan by birth and Southern by acculturation. My family would attest I’m not beyond relating stories that mysteriously expand upon each re-telling. Given my trade, I read much of Madison, Hamilton, Story and Marshall. But, truth told, I prefer Mark Twain, Will Rogers, Woody Guthrie and Huey Long. I do not find hyperbole completely uncongenial.
That conceded, I find no words to convey adequate outrage over Friday’s U.S. Supreme Court decision, in the Citizens United case, to radically untether corporate spending in our electoral politics. It is bizarrely anti-democratic. It overtly robs the American people of any conceivable tool to prevent a complete slide into mocking, cynical, purchased, cash-register politics. It marks the court as mere shill for the dominance of economic privilege. Unmolested, it will lead to both democratic and constitutional crises. It is a ruling that will come to reside, deservedly, in infamy.
By a slim majority, the court reached beyond the factual dispute before it to reshape the way elections are conducted. Justice Anthony Kennedy’s stunning opinion overruled two recent, major precedents – one from 1990 and one from 2003. Giving the back of the hand to statutes like the Tillman Act that have placed limits on campaign spending by business entities for over a century, the justices determined corporations must be treated like human beings in the political sphere.
Pressing further, Kennedy declared “expenditures … made by corporations do not give rise to … the appearance of corruption.” That “speakers may have influence over … elected officials does not mean those officials are corrupt.” The “appearance of influence will not cause the electorate to lose faith in this democracy.” Say what?
Accordingly, since Friday, corporations have enjoyed an unassailable constitutional right to spend, from their ample treasuries, unlimited amounts of money in elections – federal, state and local – to assist or to defeat particular candidates. If you have worried that institutions of daunting wealth have inadequate influence in the halls of government, be relieved.
A system of government in which those who seek certain policies are allowed to spend unrestrained sums on behalf of those who make the policies can be called many things. “Democratic” and “fair” are not among them.
The Citizens United ruling should put to rest any lingering doubts that Justices Roberts, Alito, Scalia, Thomas and Kennedy are anything other than aggressive, expansive, committed and ideological activists. They cast aside their oft-asserted standards of stare decisis, narrow fact-based decision-making, adherence to tradition, deference to elected branches of government and any conceivable notion of interpretation by original intention. (It’s hard not to recall Jefferson’s wish “that we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength.”)
But it’s not the hypocrisy of the decision that crushes. It’s the impact. It is one thing to talk about corruption. That trail can lead in an abundance of directions. But, regardless of label, ponder the reality, now constitutionally required.
Months ago, Sen. Kay Hagan was reportedly torn about health care reform. Imagine that then representatives of an insurance company explained, publicly if need be, that if Hagan voted against reform they were prepared to spend $2 million on her behalf in the next election. If she voted for reform, they’d spend $2 million to take her out.
It is impossible to believe that such moves – multiplied across issues and jurisdictions – will not have a corrosive, debilitating and often insurmountable effect on the outcomes of our political process. It cannot be that the Supreme Court majority doesn’t know this. The only logical conclusion is the judges embrace it.
And what is good for federal elections applies across the board. If a developer longs to secure a massive project in Chapel Hill, he is free to spend hundreds of thousands to aid a favored council candidate. It may, in fact, constitute a reasonable component of his business plan.
Under such a reality, any system of campaign finance limitation is rendered absurd. We should repeal them all. That may be the actual motivation for the decision.
In the past two years, the Roberts Court has brought us two landmark, unprecedented, inexplicable departures from over a century of settled jurisprudence. One determined that all but a handful of restrictions on the right to possess firearms are unconstitutional. The other, now, gives a free hand to corporations to purchase elections and legislators. It’s hard to believe any group could survey American life and determine what we need most are more guns and more corporate influence.
Gene Nichol is a professor of law and director of the Center on Poverty, Work and Opportunity at UNC-Chapel Hill.
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