The Austin Chronicle

Point Austin: Revenge of the Cyborgs

Speech may be free, but justice costs real money

By Michael King, January 29, 2010, News

Reading through the Supreme Court opinions this week in the Citizens United v. Federal Election Commission case – which struck down virtually all restrictions on corporate (and union) financing of election campaigns – I found myself reaching for outlandish metaphors to describe how otherworldly the entire exercise seemed. Justice Anthony Kennedy's strenuous majority opinion is filled with defenses of bottomless campaign spending for multinational corporations as expressions of absolute "free speech" – a notion the court had no patience for when the speaker was a high school kid carrying a rude poster – and denunciations of the supposed "bans" on corporate free speech represented by decades of relatively toothless campaign finance laws. "The law before us [a restriction on express corporate electioneering shortly before an election]," thunders Kennedy, "is an outright ban, backed by criminal sanctions."

I'm sure you're all familiar with the long line of corporate miscreants marched off to the penitentiary for violating campaign finance laws. Why, under the existing law, Kennedy reels with horror, government officials "could have banned the film [Mr. Smith Goes to Washington]."

That's not only not remotely accurate, it's ludicrous. Yet Kennedy's opinion is filled with similar humbuggery, because he's desperate to find grandiose reasons for making what should be a technical dispute about whether video-on-demand constitutes illegal broadcasting under FEC regulations into the biggest case since Marbury v. Madison.

Kennedy's self-flattering effusions are followed by Chief Justice John Roberts (joined by Samuel Alito), primarily to insist that what looks to any rational person as completely overturning settled campaign finance law (feeble as it is) is instead a grand return to original constitutional principle. Antonin Scalia (joined by Alito and Clarence Thomas) weighs in to claim that the founders did not disdain or fear corporations quite so much as the dissenters demonstrate. Wackiest of all, Thomas dissents only from upholding laws requiring disclosure of campaign donors – because, he says, some Cali­for­nia Proposition 8 opponents reportedly harassed or threatened named supporters of the proposition. Now there's a central social problem of our time: mobs of gay people menacing poor defenseless heterosexuals.

Wrestling With Alligators

Thomas' silliness is only the extreme version of unreality that runs through all of the majority's arguments – completely, willfully oblivious to the actual state of U.S. politics, in which demonstrable floods of corporate money course through every election campaign like, as former Justice Sandra Day O'Connor put it in her McConnell decision, "an alligator in the bathtub." The majority opinions read like the conversation you might have at the asylum should you arrive on the day after the most brilliant lunatics in residence have just assumed control of the joint. The sentences sound coherent, the syntax is accurate – but all connection to actual, lived political reality has been lost.

Kennedy and his colleagues reason not only that artificial, government-sanctioned corporations are akin to citizens, therefore exercising the rights of citizens – but that there is no distinction between corporations and citizens at all. Having created these cyborgs for our economic convenience, we have watched them evolve in size and power beyond all our human political capacities – and now the robots rule.

Make no mistake, this is an "activist" decision made by judges determined to force political reality into an idealized abstraction. The dissent of John Paul Stevens (joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor) fairly sputters with frustration at the majority's blind absolutism. "The Court operates with a sledge hammer rather than a scalpel," Stevens writes, "when it strikes down one of Congress' most significant efforts to regulate the role that corporations and unions play in electoral politics." He quotes Thomas Jefferson denouncing "the aristocracy of our monied corporations" and points out that the constitutional framers, "Unlike our colleagues ... had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind." Stevens repeatedly emphasizes the practical political reality that Kennedy, et al., expressly dismiss as irrelevant: "in a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets."

Sold American

But that was in another country, and besides, the horse is dead. Glenn Greenwald, writing last week in Salon, takes (with the American Civil Liberties Union) a free-speech absolutist position but also defends the court's decision because he considers it already in force. He argues that the current law effectively restricts small corporations (e.g., nonprofit advocacy groups) more harshly than the megafirms and that, in any case, the corporate powers have long since taken control of our national politics – witness the health care/insurance debacle and the impunity of the banks.

To take the salient local example, the Texas Association of Business bragged (accurately) that it "blew the doors off" the Legislature with corporate money for "educational" mailers in the 2002 campaign – despite century-old state restrictions on corporate campaign money. District Attorney Ronnie Earle threw up a stop sign, a few companies got slapped, and Tom DeLay scuttled away in disgrace – but the House was nevertheless remade in TAB's image. At the federal level, the restrictions are supposedly tighter, but it's hard to believe the Supreme Court's oblivious decision can make things much worse.

Yet just because things are bad is hardly an argument for making them awful.

As O'Connor implied, the Supremes might not have been quite so sanguine about the negative effects of corporate campaign money if they still had to troll for it. The history of the Texas Supreme Court amply demonstrates that sufficient buckets of money spent in strategic ways can steadily remake an ordinary citizen's last refuge into a corporate defendant's final redoubt. Nobody directly "bought" Kennedy, Roberts, Alito, et al. – they just funded a series of administrations that knew what was required of them. And now we've got, for a long time, a youthful Supreme majority that expressly believes there is no distinction between money and advocacy.

That song you hear drifting from K Street and the TV networks? Laissez les bon temps rouler.

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