Citizens United -- how it came to be and what we're seeing now

As you know, I'm in the process of catching up on my New Yorkers.  In the May 21, 2012, edition, Jeffrey Toobin wrote a piece titled "Money Unlimited" about how Chief Justice John Roberts "orchestrated the Citizens United decision."  For some background information, Citizens United has its roots in a 2003 case named McConnell v. Federal Election Commission, where the Supreme Court upheld most of the McCain-Feingold act.  (The McCain-Feingold Act prohibited corporations and unions from broadcasting advertisements mentioning a candidate within thirty days of a primary or caucus and within sixty days of a general election.  The purpose of the act was to clarify a meaningless distinction between "candidate" and "issue" advertisements that existed before.)  With the Supreme Court upholding an "as-applied" test of the Act, a right-wing organization that wanted to broadcast a "conservative documentary" against Hillary Clinton knew it had to challenge the Federal Election Commission's barring its broadcast and challenge the law on its face.  The case went to the Supreme Court, and during the first round of oral arguments, Tom Olsen represented Citizens United, and he stated the issue as a very narrow right.  The government made a grand faux pas in oral arguments, and the conservative justices pounced.  As the deliberations and opinion drafts circulated, it became apparent that  Justice Kennedy was viewing the case in a much broader freedom of speech for corporations scope.  David Souter wrote a scathing dissent that essentially was a "go to hell" send-off for himself that pointed out that the court was deciding the case on much wider grounds that the parties sought.  As Toobin writes, Roberts needed to preserve "the Court's credibility," and he developed the solution of a second round of oral arguments where the court wrote the questions presented, and they were written to address whether the Act violated free speech.  The parties argued a second time, but the decisions were already made, and the opinions were already drafted.  It was merely a show.  After oral arguments, Roberts was ready with Kennedy's opinion striking down the law.  The outcome was that corporations are now permitted to have unlimited spending for political campaigns.

So, beyond my suggestion for you to read the article, the question becomes what is the fallout?  The fallout has easily been seen by the most recent Wisconsin governor recall election.  Whoever can court the most corporations can win.  The Republican governor outspent the Democratic candidate 8:1, according to one new article I read.  That's an astounding difference in spending.  Taking this idea further, what we're now seeing is that corporations (which are now being created and funded by major players like Karl Rove exclusively to impact elections) are essentially buying local elections.  By buying local elections (think US Representatives, US Senators, state representatives, etc.), the corporations are slowing amassing support for their policies at capitals across the country.  NPR's This American Life highlighted this exact process in its broadcast "Take the Money and Run for Office: Act II."  Listen to the podcast.  Justice Souter has since retired, but he has continued to speak about the legal activism that Roberts led on this case in order to circumvent the separation of powers.  Other critics of the decision have warned that this decision has now permitted American elections to be bought by foreign corporations, and thus be subject to an invisible yet powerful foreign hand.  At this point, Souter's dissent has not been released, and those seeking to "correct the injustice" are hoping that it is eventually published in an attempt to fight how the decision was made and to prepare for the future  (see CU -- Souter & Toobin).  This is definitely going to become a stickier and stickier wicket as we see more elections being "bought" within the final weeks by mass cash infusions from corporations.  Candidates may no longer rely on their constant flow of money from actual voters, but they must allot massive amounts of cash for their rainy day late push to counteract corporations' attempts to control elections.  Obviously, this will affect the two political parties differently.  (I'll refrain from making a cynical statement about Republicans at this time.)  At some point, there will be push back.  I'll be watching.