Citizens United Is Disuniting The Court System


January 22, 2012 By Joe Rothstein
Editor, EINNEWS.com

It’s not often that lower courts thumb their noses at the U.S. Supreme Court.
But there’s no other way to explain recent decisions that defy the high court’s odious Citizens United ruling.

Montana’s Supreme Court in December upheld that state’s Corrupt Practices Act, which bars corporations from contributing to state and local candidates—--a direct challenge to the “corporations are people, too” Citizens United ruling.

Also in December, the U.S. Second Court of Appeals gave its blessing to New York City’s law prohibiting lobbyists from giving gifts to elected officials and requiring them to disclose fundraising activities.

Two decisions do not make a trend. But as other cases move through the courts with the aim of overturning long established campaign funding and disclosure laws, we may see a major lower court revolt against the 5-4 Supreme Court Citizens United ruling.

Outside of the courts, the public already is revolting. Polls show that two-thirds of the public opposes that ruling and more than half would favor a constitutional amendment to overturn it.

Such an amendment has been introduced in both the U.S. House and Senate. Fifty city councils, including New York and Los Angeles, are on record supporting an amendment. Many politically potent grassroots groups, such as MoveOn, are organizing for an amendment campaign.

And that’s before the full impact of the furies let loose by Citizens United lands on most TVs, computer monitors, cell phones, and in mail boxes as political hate mail. A preview of what’s to come was the Iowa primary, where millions of dollars from who-knows-where were dumped into media eviscerating Newt Gingrich. The secret fund battle escalated in South Carolina where Gingrich returned the favor. TV and other media became one long drumbeat of character assassination.

And it will get much worse before the year ends, at virtually every level of government. School board, city council, state legislature, judgeship elections? No candidate will be exempt from attacks paid for by corporations and millionaires who disagree with them.

To see where this all leads, let’s return to Montana.

In 1912, Montana voters passed a constitutional amendment to end the copper industry’s stranglehold on their state government. Until then, with its unlimited money and no legal restrictions, the industry routinely bribed politicians to do its bidding. In its ruling defying Citizens United, Montana’s Supreme Court recalled those corrupt days and said it wouldn’t be party to bringing them back.

Justice James C. Nelson, dissented, but not willingly. "While, as a member of this Court, I am bound to follow Citizens United,” he said, “I do not have to agree with the Supreme Court's decision. And, to be absolutely clear, I do not agree with it."

At the Second Circuit, the defiance was even greater. Judge Guido Calabresi wrote, "If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue."

Exactly. Without restraint or timely disclosure the rich and powerful will buy elections.

Both the Montana and New York rulings are likely be appealed, and the U.S. Supreme Court almost certainly will overturn both of them. The expectation of that is what makes the lower court actions so significant. The judges no doubt knew they were making a statement rather than reaffirming laws. That’s not what judges normally do when deciding cases before them.

Supreme Court Justice Stephen Breyer has written powerfully in recent years about what lies behind the strength of the U.S. legal system: consistency and popular acceptance of the court as the final arbiter.

To illustrate the importance of respect for court decisions, Breyer tells the story of President Andrew Jackson and the Cherokee people.

Back in Andrew Jackson’s day, the Cherokees went to court to protect their rights to gold discovered on their land. The Supreme Court, under Chief Justice John Marshall, ruled for the Cherokees against the state of Georgia, which wanted to seize that gold. President Jackson responded: “Justice Marshall has his made his decision. Now let him enforce it.”

Jackson then proceeded then sent the U.S. Army to evict the Cherokees from their land.

The United States would not be the nation we know it today without acceptance of the legal system as it’s evolved since Marshall and Jackson. But the legal system won’t be the legal system if, in the words of Justice Calabresi, “wealth allows some individuals to communicate their political views too powerfully, excluding those who lack wealth from the democratic dialog.”

Montana learned that long ago when big copper owned everything, including the state’s government. That’s why the Montana Supreme Court refused to accept the verdict of Citizens United.

Citizen’s United is a dagger at the heart of the democratic process. It needs to be blunted. A constitutional amendment may be the only way to do it.

(Joe Rothstein can be contacted at joe@einnews.com)