January 21, 2012

Citizens United: How Did it Happen?

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Citizens United

Though the manifold problems of money pouring into our campaigns have become a source of daily news and mounting public backlash, the anniversary of the Supreme Court’s ruling in Citizens United vs. Federal Elections Commission is an opportunity to review how this transformative decision was reached – the perfect storm of politicized jurisprudence, corporate entitlement, and a narrowly tilted bench.

As Chief Justice, John Roberts has expressed such concern over corporate rights, one might think he was found as a boy abandoned, taken in, and raised by some corporations.  It was Roberts who directed the narrow issue of FEC penalties over ads for Hillary: The Movie to be rewritten and re-argued as a much broader debate over the right for corporations to spend money freely on third party advertisements.

The murky reasoning in the 5-4 decision is a swirl of citations to numerous codes that apparently somehow offer sufficient paradox that a century of laws passed by lawmakers over generations of Congress that restrictions on the federal and state level had to be knocked down, leaving almost no sense of legal authority on the subject.

How has this decision stood, two years later?  Well, people have literally been taking to the streets across the country in outrage over this decision and corporate influence on public policy.  In fact, this decidedly undemocratic ruling — five opinions against American law and overwhelming public opinion — has been such a galvanizing injection into the populace, Citizens United vs. FEC may prove to be the birth to an era of reform.

When Thomas Jefferson warned, “The price of liberty is eternal vigilance,” he probably wasn’t talking about the liberty of businesses to spend unlimited amounts to promote their interests in elections, particularly foreign businesses.

The Watergate scandal revealed major cesspools of money flooding into elections under Nixon, and the Watergate break-in itself was eventually linked to cover-up efforts regarding campaign money laundering through Richard Nixon’s brother.  Nixon is notorious for having had ‘briefcases full of money’ flown in to Washington on a private plane, which would fly right back to its very anonymous donors, be they in Texas, Greece, or who knows where – actually, that was the problem, nobody knew where or how much.

It was thus in the wake of Nixon’s resignation that the House of Representatives introduced a wave of campaign finance legislation — because public outrage demanded it.  These laws were the fundamental legal basis for much campaign regulation until Citizens United vs FEC.

In a country struggling with unemployment and under-employment, a foreclosure crisis, and Mitt Romney trying to start a war with Europe, it takes a lot to make overturning a Supreme Court decision a national priority.  But the opportunity we are presented with in the aftermath of Citizens United vs. FEC is the chance to bring about new laws that improve on the loophole-ridden pay-to-play culture that allowed Jack Abramoff to thrive like bacteria in a swamp.

Two years after Citizens United, this anniversary can become recognized as a national reminder of the better democratic future we are now building.

This new short documentary covers the curious evolution of the case Citizens United vs. FEC and interviews the attorney who first argued the case, James Bopp, accomplished battler of campaign laws and Vice Chair of the Republican National Committee.  Authorities contributing to this analysis include John Nichols of The Nation, Bob Edgar, Doug Clopp and Kathay Feng of Common Cause, Nick Nyhart of Public Campaign, Brad Friedman of The Brad Blog, Professor Mark Crispin Miller, Jessica Levinson, and Lee Fang.

This short is from the forthcoming feature documentary PAY 2 PLAY: Democracy’s High Stakes, a film journey about trying to overcome the problems we face from money in politics.

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