Vol. 83, No. 3, March 2010
The Death of Democracy
Citizens United v. FEC, 78 U.S.L.W. 4078 (U.S. 2010), is so perverse it is destined to join Dred Scott, Korematsu, and Bush v. Gore in the U.S. Supreme Court’s “hall of shame.” In granting corporations First Amendment rights to spend unlimited amounts of money on political campaigns, Abe Lincoln’s dream of a “government of the people, by the people, for the people” is on its deathbed. Sweeping aside 100 years of precedent, the Court created new law out of whole cloth and opened the floodgates for corporations to drown out all voices who oppose them. Even prior to this decision, corporations had a stranglehold on American politics at every level. Now they are free to deliver the coup de grâce to the rights of real people to control their own government.
This case represents the height of judicial activism and disregard for precedent and defies common sense. Corporate free speech was not the issue in the appellate court. The issue there was whether the Federal Elections Commission was correct in ruling a documentary film was really a campaign ad subject to federal election law. Citizens United raised an “as-applied” challenge to the application of the statute, not a challenge that the statute was unconstitutional. Rather than apply the Court’s own narrow-issue doctrine, the Court created the corporate-free-speech issue on its own. Then the Court issued a broad, sweeping ruling on a matter the parties never raised. This creates a dangerous precedent where the Court is free to create issues out of thin air and then decide them on the broadest grounds possible.
Corporate spending to influence elections had been regulated in one way or another since Teddy Roosevelt’s Tillman Act of 1907. Those regulations had been repeatedly affirmed until this Court swept them aside, citing corporate “censorship.” Clearly, the confirmation-hearing claims of Justices Roberts and Alito that they were bound by reasoned precedent and were “originalists” who were merely “umpires” calling “balls and strikes” was just a load of blarney. Once in power, they have taken the Court to new heights of activism and have systematically begun the process of stealing rights from We the People and handing them over to artificial entities that dwarf natural persons in their ability to spend money to influence elections. Nothing in the Constitution or the Federalist Papers argues, much less implies, artificial business entities have constitutional rights.
It is ironic that the same Court that in Dred Scott declared that living, breathing, human beings who were African-Americans could never be citizens, now has declared that artificial creatures, like Frankenstein’s monster, are not only “people” but have unlimited First Amendment rights. The effect of this decision on Wisconsin and its judiciary may well be devastating. Corporations and law firms will now be free to spend unlimited amounts of money to elect or defeat judicial candidates. The role of the individual in our political process has been eviscerated. “Democracy” comes from a Greek word meaning “rule of the people.” With this decision, the voices of real people will be drowned out by artificial people, all sanctioned by a majority of the Court unbound by principle, precedent, or common sense.