Democracy is a huge loser in all three cases.
The disastrous Supreme Court decision of Citizens United in 2010, equating money with speech, gave the super-rich a far greater First Amendment than nearly all Americans have.
What the decision means was illustrated just the other day: The Koch brothers and their fellow money barons will spend $400 million in private money to defeat President Obama this fall.
The amount, unprecedented in American political history, is no one’s idea of democracy except for the five-man majority of the Supreme Court.
Given an opportunity to reverse Citizens United the court again repudiated democracy.
The court Monday summarily struck down a decision by the Montana Supreme Court that had upheld a state law limiting political spending by corporations.
The opinion was unsigned by the Gutless Five: Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito.
The court did not have the courtesy and judicial wisdom to hold oral arguments and let briefs be submitted. Such legal necessities could have shown just how outrageous Citizens United is.
It is arbitrary and impertinent to decide a case without adequate information and deliberation. Sadly, such a tactic is typical of the Republican court presided over by Roberts.
No means no, the court said in effect. It said Citizens United clearly “applies to the Montana state law.”
But in dissent for the liberal bloc of four, Justice Stephen Breyer declared that Citizens United was a mistake, that it was wrong for the court to have assumed “independent expenditures do not corrupt.”
“Given the history and political landscape in Montana, the state court had a compelling interest in limiting expenditures by corporations,” Breyer declared.
Mike McGrath, chief justice of the Montana court, stressed in his opinion that state politics had been corrupted by corporate interests so the law was justified.
“Montana had been operating under a mere shell of legal authority and the real social and political power was wielded by powerful corporate managers to further their own business interests,” McGrath wrote.
The state’s “copper kings,” who controlled a huge chunk of the state’s wealth, blatantly bribed legislators.
A New York Times editorial summed up the Supreme Court ruling: the retrograde majority “turned itself into a copper kings’ court.”
Foes of Citizens United and some legal authorities urge a constitutional amendment to foil a clearly partisan court. But the math of that is prohibitive. It explains why a constitutional amendment to reverse Citizens United is most unlikely.
A constitutional amendment requires a super majority of two-thirds vote in each house of Congress before approval of the states is sought. A high hurdle indeed!
But an even higher hurdle: Three-fourths of the states must ratify the proposed amendment. That means 38 states, an awesome number.
(The Constitution can be changed by constitutional convention but precious few want to take that route. A convention would pose a dire threat to American civil liberties embodied by the Constitution’s Bill of Rights.)
As for Montana, it has one of the most open democracies in the world.
Its governor, Brian Schweitzer, has an open-door policy for all Montanans. As he says, “I’m just a rancher” — like many others in the state.
In an op-edit column in the Times, Schweitzer eloquently told why Montana insisted on keeping corporate money out of politics.
“A miner named William Clark came upon a massive copper vein near Butte,” he wrote. “It was the largest deposit on earth. Overnight he became one of the wealthiest men in the world.
“He bought up half the state of Montana. If he needed favors from politicians he bought those as well.
“In 1899 he wanted to become a U.S. senator. (State legislatures then appointed U.S. senators.) Clark simply gave each corruptible lawmaker $10,000.”
So Clark became a U.S. senator. But the Senate soon kicked him out when it learned of the bribes. This caused the bought-and-paid-for senator to rightfully complain that he “never bought a man who wasn’t for sale.”
Schweitzer concluded that the Clark case prompted Montana citizens to approve a ballot initiative banning corporate money from campaigns.
Today large campaign contributions are legalized bribery, a political corruption twice sanctioned by the Supreme Court.
No wonder so many American citizens have lost faith in this so-called democracy.
Jake Highton teaches journalism at the University of Nevada, Reno. He can be contacted at firstname.lastname@example.org.