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.

Toobin's take on Judge Brett Kavanaugh

Leading up to the Affordable Care Act's oral arguments at the Supreme Court, Jeffrey Toobin wrote a piece about DC Circuit Judge Brett Kavanaugh and his peculiar interpretations.  Like Toobin's later smack-down of Justice Kennedy's questions during that oral argument, Toobin provides a smack-down of Kavanaugh in his March 26, 2012, piece.  In that piece, he summarized Kavanaugh's 65-page dissent to the challenge of the Affordable Care Act, and he highlighted that Kavanaugh "appeared to offer some advice to the Republicans who are challenging Obama in the election this year."  Essentially, the judge suggested that "even if the Supreme Court upholds the law . . ., a President . . . could refuse to enforce ACA because he 'deems' the law unconstitutional."  Wait for it, wait for it . . . Toobin's next line: "That, to put the matter plainly, is not how it works."  (emphasis added).  Ha!  Presidents don't get to decide whether the law is constitutional, rather, that happens to be the one job of the courts (regardless of how much the court tries to expand its job title).  Toobin goes on to discuss the air of paranoia and misunderstanding and the danger of Kavanaugh (a judge who clearly is mistaken on the separation of powers) being appointed to the bench by a Republican president, but the best part was definitely the smack-down.  Enjoy.

Jeffrey Toobin's Smack Down of the SCOTUS Qs

During my trip to Asia, I read a lot (because it is what I do, as my father-in-law pointed out to me).  I used the time to catch up on my New Yorkers, and I absolutely must highlight Jeffrey Toobin's smack down of the justices' questions concerning the health care act.  In the April 9, 2012, edition, Toobin wrote:

"The key issue in the case is whether congress, in passing the [Affordable Care Act], exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce.  Consider, then, this question, posed to [Solicitor General Donald] Verrilli by Justice Anthony M. Kennedy: 'Assume for the moment that this' -- the mandate -- 'is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.  If that is so, do you not have a heavy burden of justification?'  Every premise of that question was a misperception." (Emphasis added.)

Ha!  Toobin then goes on to explain that the national government has been involved with the health care market since the 60's since Medicaid and Medicare and that the heavy burden is actually on the other party (the challengers to the law) according to case law.  Toobin then remarks on how previous cases have set up a deference to Congress on such matters but that these justices were taking it upon themselves to become legislators along with justices.  He really seals his article with the zinger, "The awesome, and final, powers of the Justices are best exercised sparingly and with restraint.  Their normal burdens of interpreting laws are heavy enough.  No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either."  ZAP!  Way to go, Toobin!

I'm so glad that such a well-respected SCOTUS writer and critic has really taken the justices to the woodshed for trying to overstep their powers.  Unfortunately, as is so often pointed out, the justices live in a very secluded life and often do not interact with true American humanity or culture.  I hope that for this issue that will greatly save the country's long-term fiscal policies and sustainably provide for the people very much unlike themselves, the justices will step outside their ivory towers when issuing their decision.