This week marks the 2nd anniversary of the Citizens United v. FEC ruling which was written into history by the Supreme Court of the United States on January 21, 2010. By now, most people recognize the true historic significance of this ruling. It basically reversed the framers’ intent to have “the people” decide who is elected into leadership positions in this country.
In the not-to-distant future, American history books will have a chapter entitled “Citizens United – the SCOTUS ruling that brought down our democracy.” The Citizens United (CU) decision will rank as high, or higher, than the Dred Scott Decision in being the most un-American, un-democratic SCOTUS ruling in the history of the United States.
Who were the people responsible for this ruling? Where are they now?
The five-member SCOTUS CU majority (Kennedy, Roberts, Scalia, Alito and Thomas) continue to defend their 2010 decision. Soon they may be able to decide in favor of even more corporate control over our elections. Earlier this month, the Republican National Committee filed a brief that argues that corporations should be allowed to give money directly to federal candidates. Will the Citizens United Five maintain their corporatist stand if this case reaches their court?
Citizens United’s primary defense attorney, James Bopp, continues to “lead a crusade to topple all limits on the role of money in politics.”
Furthermore, conservative think tanks, like The Heritage Foundation, and libertarian advocacy groups, like The Institute for Justice, continue to seek ways to expand the rights of corporations in our election process.
However, what came as a surprise to most progressives during the Citizens United debate was the support given to the ruling by normally liberal-leaning groups and individuals. The American Civil Liberties Union (ACLU), for example, was especially vocal in its support. Ira Glasser, former ACLU Executive Director, wrote this after the ruling:
Liberals, and others like them, who denounced the decision have failed to appreciate what a great ruling it was for the First Amendment, and what a huge victory it was for freedom of speech and against government censorship. Yes, censorship.
Even more disturbing for progressives was the support given to the Citizens United decision by the respected First Amendment icon, Floyd Abrams. On the first anniversary of the ruling Abrams stated:
When the Citizens United decision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.
During the past two years, the general public and a majority of the constitutional law analysts in this country have debunked the logic used in the CU proponents’ reasoning. We now know that the common thread found in each of the proponent’s arguments is based on these words included in Justice Scalia’s support of the majority opinion:
The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speakers, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals…Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.
The problem with this argument is that the CU proponents were caught up in a narrow reading of the First Amendment. They failed to stand back and recognize that this amendment is just one amendment of ten that constitute the Bill of Rights, and that the whole purpose of the Bill of Rights is to protect the rights of an “individual” citizen of this country (a person).
In the words of Floyd Abrams, Americans do “enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed.” But that is because the Nazi, the pornographer and the animal torturer are each a “person.” And it is a "person" who we feel should be protected under each amendment of the Bill of Rights, including the amendment which protects freedom of speech.
No definition of the word “person” includes the word “corporation.”
The Heritage Foundation and other conservative organizations will continue to support the CU ruling, and understandably so, since they’re simply supporting their corporate sponsors. But the liberal supporters of this democracy-crushing decision must, by now, understand (and hopefully accept) the logical reasoning of the opposition.
Let’s hope that they reverse their position on this issue and begin to openly support the will of “the people.”
Update: January 20, 2012
In comments, Ted Frier has provided an excellent analysis of the Citizens United decision, tying it into SCOTUS’s “conservative Opus Dei Catholic caucus” and noting the contemporary internal conflicts relating to the Bush v. Gore decision. He also references Jeffrey Toobin’s book “The Nine,” which offers some great insights into today’s Supreme Court.
Ted closed his comment by saying:
With the passage of time and with the fading of partisan memories and the self-serving rationalizations that go with them, I've no doubt that Bush v. Gore and Citizens United will join those other abominations of the Court, like Dred Scott v. Sandford, which stand as sobering reminders that, despite its many marble statues, the Supreme Court remains a thoroughly human institution where fragile principles like rule of law are too often a feeble match for human ambition and desire.