Tuesday, March 27, 2012

Repercussions of the Citizens United Ruling

In this March 26, 2012 editorial, the NY Times states the obvious that unlimited third party spending by individuals and corporations in the form of super PACs will likely allow the wealthy segments of American society to have more influence on electoral discourse than less wealthy segments. (Extreme free speech through unlimited electoral monies drowns out the free speech of others--plutocratic state?) The more interesting issues and questions is the competence and honesty of the US Supreme Court judges who voted in favor of Citizens United, and whether or not the executive branch of the US government should be allowed to appoint Supreme Court judges (just like in Canada in which the Prime Minister appoints theses judges)? Are some or most of the US Supreme Court judges an extension of the systematic corruption in the United States? Another issue is that Americans seem to be thinking that the US federal electoral system was somehow democratic before the Citizens United ruling in 2010. Have they overlooked the legislated two party system (rather than plurality party system), massive unregulated influence of lobbyists on members of the Senate and Congress, no (private) campaign expenditure limits, high electoral contribution limits, no media ownership concentration laws or equivalent etc.? The Citizens United ruling (unlimited third party expenditure) only makes the US federal electoral system even more undemocratic. In May the FDA will publish its 2012 electoral fairness audit of the US federal electoral system.

Here is the NY Times editorial:

"The Supreme Court’s 5-to-4 ruling in Citizens United in 2010 was shaped by an extreme view of the First Amendment: money equals speech, and independent spending by wealthy organizations and individuals poses no problem to the political system. The court cavalierly dismissed worries that those with big bank accounts — and big megaphones — have an unfair advantage in exerting political power. It simply asserted that “the people have the ultimate influence over elected officials” — as if campaigns were not in the business of influencing and manipulating voters.

The flood of money unleashed this election season is a direct consequence of this naïve, damaging view, which has allowed wealthy organizations and individuals to drown out other voices in the campaign. The decision created a controlling precedent for other legal decisions that made so-called super PACs the primary vehicles for unlimited spending from wealthy organizations and individuals. In theory, they operate independently of candidates. In reality, candidates are outsourcing their attack ads to PACs, so financing a PAC is equivalent to financing a campaign.

In SpeechNow.org v. Federal Election Commission, the federal appeals court for the District of Columbia ruled that as a result of Citizens United, contributions by individuals to advocacy groups called 527s could not be limited. The Federal Election Commission further confirmed in 2010 that an “independent” political committee can accept unlimited contributions for unlimited spending from just about any kind of group or individual.

Both the SpeechNow case and the F.E.C. ruling relied on the rationale for unlimited spending enunciated in Citizens United. Justice Anthony Kennedy, in the majority opinion, narrowed the court’s definition of political corruption to mean quid pro quo corruption, or bribery. Independent spending, he wrote, does “not give rise to corruption or the appearance of corruption” and “influence over or access to elected officials does not mean that these officials are corrupt.”

This narrow focus on bribery is intellectually dishonest. The corrupting influence of money is not limited to bribery — the broader problem is the ability of moneyed interests to put into office those who support their political agendas or financial interests.

The Roberts court did great damage by abandoning the idea that corporate treasuries can have “corrosive and distorting effects” on the political process if “used to influence unfairly election outcomes” in ways that create “the appearance of corruption in the political arena” — crucial language in a 1999 Supreme Court case that upheld limits on independent spending by corporations and was overturned by Citizens United.

In Citizens United, Justice Kennedy cited James Madison in The Federalist in noting that “factions” in American democracy can be “checked” by ensuring that all of them can speak freely and “by entrusting the people to judge what is true and what is false.” But when outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources.

Voters are left to judge well-financed spin, rather than truth and falsehood. Super PACs demonstrate that almost daily. Until 2010, the court wisely held that these effects were a form of corruption in politics."

When other voices are drowned out

2011 FDA Electoral Fairness Audit Report on the US Federal Electoral System

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