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Citizens United

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Now Matters are Worse.

“Really, it’s weird. The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment. We. All. Know. This…[But] since the chief can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption — or appearance of corruption — afoot.”

Here we go again. Dahlia Lithwick looks over the Court’s disastrous 5-4 decision in McCutcheon v. FEC [opinion] — a.k.a. Citizens United all over again — and the corrosive effect it will have on public confidence in government. “[I]n a kind of ever-worsening judicial Groundhog Day of election reform…the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle.”

The Plot Against America.

These records show that while the chamber boasts of representing more than three million “businesses, and having approximately 300,000 members, nearly half of its $140 million in contributions in 2008 came from just 45 donors. Many of those large donations coincided with lobbying or political campaigns that potentially affected the donors.

The republic stands upon the edge of a knife, people. Stray but a little, and it will fall. While the NYT belatedly figures out the Chamber is up to no good in its overwhelming campaign spending — thank you, Citizens United — the Center for American Progress discovers that the vast right-wing conspiracy actually holds meetings(!):

While the Koch brothers — each worth over $21.5 billion — have certainly underwritten much of the right, their hidden coordination with other big business money has gone largely unnoticed…The memo, along with an attendee list of about 210 people, shows the titans of industry — from health insurance companies, oil executives, Wall Street investors, and real estate tycoons — working together with conservative journalists and Republican operatives to plan the 2010 election, as well as ongoing conservative efforts through 2012.

Widening the Breach.

The SpeechNow decision effectively widens the field of organizations that can raise and spend money on politics more freely in light of the Citizens United decision, which swept aside decades of legislative restrictions on the role of corporations in political campaigns.

The disaster on the Gulf isn’t the only gusher to worry about. Relying almost exclusively on Citizens United for their reasoning, the three-judge DC Court of Appeals struck down limits on individual contributions to advocacy groups last March, paving the way for even more cold hard cash overflowing the system. [FEC overview.] “The D.C. Circuit’s ruling was the first to apply and significantly expand [Citizens United], which invalidated limits on corporate expenditures in federal campaigns.

I had heard very ominous rumblings about this hearing in the days after CU, but somehow missed that the actual decision had been handed down (Working as intended: It was dumped on a Friday) and only caught it on account of yesterday’s injunction. (Weirdly, there was no press release from CREW, Common Cause, or Public Citizen either, although PIRG was on the case.) The FEC does seem to be looking toward a Supreme Court appeal…but it’s hard to see that turning out very well, is it?

Kagan’s Time to Shine.

“‘I am confident that she’s a solid, reliable modern Democrat…She’s not George McGovern or whoever the liberal left of the Democratic party would want, but the left of the Democratic party isn’t where the party is any more. She’s a good, solid Clinton-Obama Democrat.‘”

Well, that’s the trick, isn’t it? Particularly that she’ll be replacing the irreplaceable John Paul Stevens. In any case, President Obama has made his second pick for the Supreme Court, and it is his Solicitor General and former Harvard Law Dean Elena Kagan. “As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Making the progressive case for Kagan: Larry Lessig, an old friend of hers: “The Kagan I know is a progressive…[T]he core of Kagan’s experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I’ve seen her flip the other side.” Lessig expounds on this coalition-builder argument here: “To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left…But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes.” (To which one must ask, really? Who’s gonna flip?)

Making the progressive case against Kagan: Salon‘s Glenn Greenwald: “[G]iven that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who — at best — is a huge question mark?…I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her.” This was a follow-up from another piece, where he argued: “Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of ‘post-ideological’ attribute Obama finds so attractive.” Interestingly, this last part seems much the same argument Lessig’s making in her favor, with the valence changed.

(As an aside, this feud got a bit heated, with Greenwald deeming Lessig a liar and stooge. Having been on the wrong end of Greenwald’s wrath myself on the Citizens United case, Lessig’s rebuttal to this charge sounded all-too familiar: “Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars…[Y]ou can make your point well enough without painting everyone else as liars or constitutional crazies.” True story.)

Anyway, speaking of Citizens United, since the President has explicitly said that decision is lousy law several times over, I presume he’s made sure Kagan is in agreement on that front. (He has, right?) And, as I said back during John Roberts’ nomination, my feeling is generally the president’s prerogative in choosing Supreme Court justices should be respected. (Can’t countenance Roberts’ lying, tho’.) So, if Kagan’s the president’s choice, I’m prepared to give her the benefit of the doubt and support the nomination.

But, quite frankly, I shouldn’t have to doubt (and here, the next two links are via Greenwald.) As the NYT editorial page well put it: “President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view.

So, sure, I guess it’s entirely possible Kagan is a secret superprogressive of the Leonard Cohen type. (“They sentenced me to 20 years of boredom, for trying to change the system from within.“) But there’s another explanation that’s more likely. And, loath as I am to agree with David Brooks, his column today echoes almost exactly what I was thinking:

Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook.) There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly. She has become a legal scholar without the interest scholars normally have in the contest of ideas. She’s shown relatively little interest in coming up with new theories or influencing public debate. Her publication record is scant and carefully nonideological…What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess.

That’s my rub too, and it dovetails with larger problems I have with DC political culture. More often than not, the people who tend to succeed here are the ones who keep their head down, play the DC game, stay resolutely non-ideological and unobtrusive in their opinions. never go out on a limb, never say or do anything that could hurt their bid to be a Big (or Bigger) Shot down the road. (Hence, the whole phenomenon of The Village.)The problem is, these plodding, risk-averse careerist types are exactly the type of people you don’t want making decisions in the end, because they will invariably lead to the plodding, risk-averse and too-often rudderless politics of the lowest common denominator.

I’m really hoping the future Justice Kagan isn’t another example of this troubling trend, because as I said when Stevens retired: “The Court needs a strong and unabashed liberal conscience right now. What it emphatically does not need is another centrist technocrat that will help push the Court ever further to the right” But, as Kurt Vonnegut put it in Mother Night, “We are what we pretend to be, so we must be careful about what we pretend to be.” And when someone spends decades being so careful and circumspect in the face of so many obvious injustices, both by recent administrations and in the world at large…well, I really have to wonder about their judgment.

Update: Having said all that, this recently unearthed 1996 internal campaign finance reform memo to Chief of Staff Leon Panetta, on which Kagan is one of six signers, suggests she is in fact on the right side of the campaign finance reform issue: “It is unfortunately true that almost any meaningful campaign finance reform proposal raises unconstitutional issues and will provoke legal challenge. This is inevitable in light of the Supreme Court’s view — which we believe to be mistaken in many cases — that money is speech and attempts to limit the influence of money on our political system therefore raises First Amendment problems. We think…the Court should reexamine its premise that the freedom of speech guaranteed by the First Amendment always entails a right to throw money at the political system.” So that’s a big check-mark in my book — Unfortunately, other Clinton-era memos are less promising.

Conscience of the Court.

I’m late on this post on account of vacationing, but nonetheless: As the world knows (and long suspected after he only hired one clerk last year), Justice John Paul Stevens has announced his retirement after 34 years on the Court. (See also Dahlia Lithwick’s commemoration of Stevens’ empathy, as well as the Tao of Stevens here and here.)

Expected it may be, but this is not good news. The President is saying all the right things about picking a Justice who will uphold campaign finance laws in the wake of the Citizens United disaster. But, as the pathetic recent capitulation on Dawn Johnsen showed once more, this White House too often shrinks from a necessary fight in the name of an elusive “bipartisanship” that, quite frankly, does not exist.

With Stevens gone and the fearsome foursome of Roberts, Alito, Thomas, and Scalia still roaming the chambers, the Court needs a strong and unabashed liberal conscience right now. What it emphatically does not need is another centrist technocrat that will help push the Court ever further to the right. The ball’s in your court, Mr. President — It’s time to show more of the progressive gumption we voted you in office to provide.

The Government We Paid For.

“‘This is the earliest that the Center has ever offered an estimate,’ Krumholz said. ‘As election observers across the political spectrum work to assess the impact of Citizens United, this prediction offers a solid baseline to compare new spending levels against.'” Before even taking the torrents of campaign cash expected in the wake of the Citizens United decision into consideration, the Center of Responsive Politics estimates that the 2010 midterms will cost over $3.7 billion. (FWIW, the year 2006 clocked in at $2.85 billion.) Sigh…fasten your seat belts — It’s going to be a bumpy ride.

The Wages of Citizens United: The Courts.

“When the Chief Judge joined in the argument about the continuing vitality of the corruption rationale for campaign finance restraints, he flatly accused Kolker of evading the Citizens United ruling. “I’m not hearing you address Citizens United,” Sentelle said. And Judge Thomas B. Griffith chimed in: “You’re trying to avoid Citizens United. This is a new world: corruption means a lot less than it did before.'”Hey, you said it, Judge. According to the good folks at SCOTUSblog, the doors to unfettered campaign cash are open in a big way in the minds of the DC District Court after Citizens United: “From the opening moment of the 65-minute hearing, most of the nine judges on the en banc Court treated the Supreme Court’s ruling…as the beginning, not the end, of expansion of those freedoms. When an FEC lawyer tried to bring up, and rely on, older precedents, he was reminded repeatedly that those came before Citizens United.

President Obama’s stern words about the decision in his State of the Union address may have induced Justice Alito to expose himself as a partisan hack, but it seems, alas, that the Justice and his four conservative contemporaries will have the last laugh.

The Wages of Citizens United: The $$$.

“The Chamber spent much of its money in 2009 on campaigns that worked — it scared the Senate away from considering a version of the Waxman-Markey cap-and-trade legislation, and an argument can be made that its cutting ads on health care (with money taken from some insurance companies) helped to undercut support for the legislation.” You think? In a shape-of-things-to-come moment even before Citizens United goes into effect, the Chamber of Commerce outspent both political parties in 2009.

“According to The Center for Responsive Politics, the U.S. Chamber of Commerce and its national subsidiaries spent $144.5 million in 2009, far more than the RNC and more than double the expenditures by the DNC.” But corporate spending isn’t a problem or anything.

The Wages of Citizens United: The People.

In a new national poll, 65 percent of Americans say they disagree with the 5-to-4 U.S. Supreme Court decision to allow corporations to spend without limits on ads in political campaigns.And yet hope remains while the company is true: A new poll finds Americans across the board are unhappy with the court’s ruling in Citizens United.

“The Reid poll found little difference in partisan attitudes…Sixty-six percent of Democrats either “moderately” or “strongly” disagreed with the ruling, but so did 63 percent of Republicans. A whopping 72 percent of Independents disagreed with the Supremes’ decision.” One wonders how those numbers might’ve moved if we started using Citizen United’s full name to discuss this case…

You stay classy, GOP. And folks thought “teabagger” was ugly.

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