It’s the Supreme Court Stupid (aka Obama 2012)

[ed] a Montana Supreme Court decision upholding a 1912 voter-approved ban on corporations’ spending of their own money on political campaigns in that state. The Court majority found that state court ruling obviously in conflict with a decision the Supreme Court had issued in January 2010 striking down a similar ban in federal law against corporate spending on politics. The four Justices in dissent conceded that the Supreme Court majority was not ready to take a new look at that 2010 decision, even in a case in which a state’s highest court had found that the state had a history of corrupt corporate influence in its political life.

Many Citizens United critics, including yours truly, applauded the Montana Supreme Court when it upheld 100 years of law in that state to go against the US Supreme Court, eyeing this ruling as the thing that could, potentially, undo that court’s worst ruling in my lifetime.  Alas, as of yesterday, we know for certain that that will not happen.

As Justice Stephen Breyer wrote in the dissent, with Justices Ginsberg, Sotomayor, and Kagan joining:

In Citizens United v. Federal Election Commission, the  Court concluded that “independent expenditures, includ­ing those made by corporations, do not give rise to corrup­tion or the appearance of corruption.”

I disagree with the Court’s holding for the reasons expressed in Justice Stevens’ dissent in that case. As Justice Stevens explained, “technically independent expenditures can be corrupting in much the same way as direct contributions.” 

Indeed, Justice Stevens recounted a “substantial body of evidence” suggesting that “[m]any corporate independent expenditures . . . had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements.”Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.  

Given the history and political landscape in Montana, that court concluded that the State had a compelling interest in limiting independent expenditures by corporations.Thus, Montana’s experience, like considerable experience elsewhere since the Court’s decision in  Citizens United,  casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so. 

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case.  But given the Court’s  per curiam disposition,  I do not see a significant possibility of reconsideration. Consequently, I vote in­stead to deny the petition. 

Although I don’t quite understand that last line (as he doesn’t see a significant possibility of reconsideration, he’ll instead vote to deny the petition!), I do understand that he’s saying that as long as this court is comprised the way it is, they will never overturn Citizens United.

That means that billionaires like Sheldon Adelson and the Koch Brothers will continue to use their obscene wealth to buy politicians and then buy their way into office.  And that is the death of democracy.

There are a couple of ways to save it before we hear the final death rattle. First, we need to make sure that Mitt Romney is NOT elected president come November.  

In the next few years, we’ll see one, probably two, possibly three and maybe even four Supreme Court Justices leave the bench.  Ruth Bader Ginsburg is 387 years old. (OK, not really, but she will turn 80 in March.)  And she has battled both colon and pancreatic cancer, leaving us to wonder how much longer she’ll sit on the bench.

Stephen Breyer turns 74 this August, and has been an Associate Justice of the Supreme Court since 1994.  Again, these people can’t live forever. 

Both Ginsburg and Breyer were both nominated by Bill Clinton, and tend to vote the way I’d like to see the court rule.

Anthony Kennedy is the third Justice who is not too much longer for the bench.  At a not-so-spry 76 years old (next month), the same question about how much longer he can go on is a valid one.  Kennedy was appointed by Reagan in 1988, and is usually the swing vote when there is a 5-4 decision.  

As for the reliably Republican votes on the Supreme Court, most of them will be around for many, many more years:

Chief Justice John Roberts, at only 57, will likely torment us for decades to come.  Samuel Alito is only 62, and Clarence Thomas just turned 64 a few days ago so, as long as they stay healthy, it’s not likely either one of them is going anywhere for another 10-15 years. 

The longest-serving member of the court, Antonin Scalia is – like Kennedy – 76 years old. And given his insane dissent in yesterday’s ruling on the constitutionality of SB1070, I’m wondering if, perhaps, he shouldn’t be wearing one of those exelon patches I see advertised to treat mild to moderate Alzheimers rather than being one of nine who get to decide the fate of our nation.

So, two liberals, one swing vote and one right wing nut job will all be former Justices in the not-too-distant-future.  I really, really don’t want Mittens being the one to name their replacements.

While we work on making sure that doesn’t happen, the other way to fix the mess they created with Citizens United is with a constitutional amendment.  David Cobb is on a seemingly never-ending Move to Amend tour of the country, explaining how this would work. He’ll join me on the show tomorrow morning to continue this conversation, so be sure to tune in.

I spoke about the subject this morning as well, with Catherine Crier – Emmy award winning journalist, and author of the new book, Patriot Acts: What Americans Must Do to Save the Republic (hint: one of them would be to overturn Citizens United!).  I was also joined by The Political Carnival’s GottaLaff to continue the discussion about that and more…

I read a short piece on the show both yesterday and today, written by James Fallows for The Atlantic.  Read the whole thing here for context, but this is what I found so frightening:

 This is distilled from a longer item earlier today, at the suggestion of my colleagues. It’s a simple game you can try at home. Pick a country and describe a sequence in which:

• First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
• Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
• Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
• Meanwhile their party’s representatives in the Senate abuse procedural rules to an extentnever previously seen to block legislation — and appointments, especially to the courts.
• And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republicanproposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way? 

Tomorrow, it’s a double header!  After my show in the morning (with David Cobb of Move to Amend and Dennis Marker, author of Fifteen Steps to Corporate Feudalism: How the Rich Convinced America’s Middle Class to Eliminate Themselves), I’ll be filling in for Randi Rhodes tomorrow afternoon too (with Congressional candidate & pro-choice advocate Darcy Burner, Congressman (former and future) Alan Grayson, and former pot smuggler turned medical marijuana advocate Robert Platshorn of The Silver Tour!)