What is Constitutionally correct?
The US Supreme Court ruling on January 21st signals once again a bitterly divided judicial along political and ideological lines. This 5-4 vote ruled that government has no business regulating political speech. However, the dissenters pointed out that corporate money would thus flood political campaigns corrupting democracy. On its central point, Justice Kennedy’s majority opinion (he was appointed in 1988) was joined by Chief Justice Roberts (2005) and Justices Alito (2006), Thomas (1991) and Antonin Scalia (1986). Justice Stevens’s (1975) dissent was joined by Justices Stephen G. Breyer (1994), Ruth Bader Ginsburg (1993) and Sonia Sotomayor (2009).
The ruling is a sharp doctrinal shift that would allow far reaching consequences of corporate meddling in political decisions. Aside from our personal political leaning, most of us democracy loving people would agree with President Obama when he called this ruling "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans".
Both major parties -Republicans and Democrats- would eventually suffer under the heavy weight of billionaire corporate power whenever political decisions are bent to private interests.
“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Of course, there is a deep motivation on principle here. But the real issue is a matter of proportion and of equal opportunities. Corporations have so much money they can wield a disproportionate influence, drowning out other voices by the sheer volume of what they can throw into an election campaign. Worse, they might be tempted to extortion. It is the kind of "offer they cannot refuse" that might often be presented to representatives and senators.
Justice Stevens's dissent argues that the Court for over a century has not equated corporations (and unions) with individuals in the election law context. Democracy is the sum of individual will and power that promotes open debate and makes decisions based on the votes of those same individuals. The fact is that this Supreme Court ruling will weaken candidates and parties under the overwhelming influence of big money. Candidates and their campaigns will be the only ones limited to receive up to $2,400 from individuals and $5,000 from PACs per election. Unless they find the magic internet fund-raising formula and fervor achieved by the Obama presidential campaign, they will be swamped in an election by corporate, union and more than 500 other institutions allowed to spend unlimited funds on independent "issue advocacy".
Furthermore, marketing science subterfuge may not even make it look like campaign ads. Rather, the public may see slick and soothing portrayals of, say, how well our healthcare system works, or how well our banking system promotes economic growth. Ads will try to convince the public that people may not get proper medical care if the government gets too involved or that we might not get a mortgage if the government regulates banks and controls their greed.
We may not agree with government intervention in the daily life of the people but government has an obligation and a responsibility to protect each and every one of its citizens. A disproportionate view about freedoms and rights with little regard for obligations would only promote licentiousness and corruption, specially from powerful interest groups.
People like to think of their courts as unbiased, specially when the Supreme Court is the ultimate judicial actor. People expect the justices who populate them acting in the interest of citizens and their security and wellbeing. But this single ruling is enough to demonstrate that the current US Supreme Court sees its constituency not as the American people as a whole, but as Democrats or Republicans, or worse, as those who mishandle corporate interests for the benefit of the few and privileged.
The US Supreme Court's decision in Citizen's United v. Federal Election Commission is not a classic ruling on a bill of rights case, where the Court invokes the Constitution to protect a minority from an overwhelming -and sometimes abusive- majority. On the contrary, corporations and unions have been able to fend for themselves quite well in the political process before this ruling. But the Court is thereby brushing aside previous legislative choices to limit corporate and union intervention in political campaigns by rendering a sweeping decision with confusing signals to the American people. The paradox here is that this decision is taken by a 5-4 majority of the conservative wing of the Supreme Court. Precisely when conservatives at many different times have been such staunch advocates of judicial restraint.
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