Why Courts Matter – A 2010 Lesson for Progressives

by Doug Kendall, President & Founder, Constitutional Accountability Center

The retirement decisions by Senators Chris Dodd and Byron Dorgan last week gave pundits and analysts story leads, but a far more important announcement is coming, maybe as soon as tomorrow. The Supreme Court, with its five-justice conservative majority, is expected imminently to release its long-awaited decision in Citizens United v. FEC. The ruling could have a much greater influence on the prospects of progressives in 2010 than any individual candidate’s decision to run. Indeed, the Court could change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending.

Citizens United involves a hit-job documentary called Hillary, The Movie, produced by David Bossie for Citizens United to coincide with the 2008 presidential primary season. The case began as a relatively insignificant, technical challenge to the Federal Election Commission’s decision to treat the film’s production and release as “corporate electioneering,” subject to regulation under the McCain-Feingold campaign finance law. It was transformed into a potential blockbuster last June when the Supreme Court ordered the parties to brief and argue the question of whether the law itself, which restricts the political use of corporate funds, is unconstitutional and whether prior cases upholding such restrictions should be overruled.

Citizens United is now arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would jettison a distinction that has been in place in our Constitution since it was written and in our statutory law since the Tillman Act of 1907. As a result, corporations would get a green light to spend unlimited amounts of money in elections.

To see the significance of this, consider that in his historic run to the presidency, Barack Obama broke every political fundraising record, raising nearly $750 million from more than a million contributors in 2007 and 2008. This sounds impressive until you consider that during 2008 alone, ExxonMobil Corporation generated profits of $45 billion. With a diversion of even 2 percent of these profits to the political process, Exxon could have far outspent the Obama campaign and fundamentally changed the dynamic of the 2008 election, perhaps even the result.

Projecting this forward to 2010, ExxonMobil could spend a small fraction of its profits and transform close elections involving supporters of a clean energy bill that moves the economy away from fossil fuels. Insurance companies, drug companies and bailed-out Wall Street banks could do the same thing in races involving candidates whose positions they dislike. President Obama and his supporters have learned this year just how hard it is to bring change to Washington. Just think about how difficult change will become if corporations can use their general treasuries to put a gun to the heads of vulnerable politicians.

Opponents of campaign finance laws claim that such a ruling overturning limits on corporate spending in elections is necessary to vindicate the First Amendment rights of corporations. That’s a crock. The Constitution never mentions corporations – it protects “we the people” – and from the dawn of the Republic the Supreme Court has held that corporations, which are artificial entities, created by the state to facilitate commerce, and given special privileges that average citizens don’t have, are appropriately subject to greater government oversight. A ruling by the Court overturning this centuries-old tradition would be indefensible judicial activism, as explained in detail in this historical analysis released by Constitutional Accountability Center in December.

Distinctions in the constitutional protections afforded to living persons and corporations are particularly appropriate in the political arena. Corporations are not citizens, they do not vote, and cannot run for office. “We the People” create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons. This is the law today, but, tragically, it may not be the law at week’s end.

Indeed, whenever the case is decided, Citizens United may ultimately top Bush v. Gore as the leading example of how the conservative-dominated Supreme Court is overreaching and thwarting progressive change: while Bush v. Gore gave us eight years of President George W. Bush, Citizens United could put progressive candidates at a disadvantage for generations to come. And Citizens United is only one of many cases in which the progressive agenda is at risk. The lede of this recent article in The Hill newspaper says it all: “Republicans and allied groups say they will spend millions to oppose healthcare reform and other Democratic initiatives in the courts, which they see as a last line of defense against President Barack Obama’s agenda.”

It’s hard to predict with any great certainty what the Court will decide in Citizens United. The conservative majority on the Court seemed poised to issue a sweeping ruling last spring striking down a critical component of the Voting Rights Act, then ended up deciding the case on narrower grounds. A similar result is still possible in Citizens United.

What we do know is that the courts will end up deciding whether just about every part of the progressive agenda stands or falls. If progressives need any reminder of the central message of Bush v. Gore, here it is: courts matter.

Cross-posted on Huffington Post.

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