An anniversary to be mourned and used as a call to action

A ruinous national experiment enters its sixth year today

Despite its countless attributes and accomplishments, the United States has experienced more than its share of disastrous laws, political eras and policy experiments since its founding 238 years ago. It took 89 years to officially eradicate slavery and we’re still combating its poisonous legacy. The nonsense of the Plessy v. Ferguson “separate but equal” doctrine lasted 58. Women were denied the right to vote for 144 years. Prohibition lasted 13. Bowers v. Hardwick, the Supreme Court’s horrific 1986 decision upholding a state’s right to criminalize consensual homosexual behavior between adults, took 17 years to reverse.

Seen in this light, today’s five-year anniversary of the catastrophic U.S. Supreme Court decision to confer broad First Amendment rights on state-created non-human entities, i.e. corporations, in the now infamous Citizens United v. FEC case is far from the worst self-inflicted wound that the United States has ever experienced. It is also certain not to be the last.

That said, there is also a rapidly growing mountain of reasons to mourn that decision today and to make use of the anniversary as a spur to urgent and sustained action. Today’s Weekly Briefing offers a quick look at some of them.

A brief refresher

For those who may have heard the reference to Citizens United a thousand times over the past five years without ever fully processing what the decision really did (and for those who may have simply banished the details from their brains as too painful to retain) here is a very quick refresher from a new report released last week by the good people at the Brennan Center for Justice:

“Five years ago in Citizens United v. FEC, a narrow majority of the Supreme Court upended a century of precedent to declare that corporations (and, by extension, labor unions) have a First Amendment right to spend unlimited money on elections….

At the time of the decision, many critics…predicted that political spending by for-profit corporations would explode, and election spending would skyrocket. By contrast, the Court majority and its supporters saw the decision as a critical victory for the First Amendment, arguing that the ban on direct corporate spending that the Court struck down had ‘muffled the voices that best represent the most significant segments of the economy.’

Five years later, evidence from three national election cycles permits a more definitive assessment of how Citizens United has altered the landscape. A clear-eyed analysis shows that the impact of the case was significant and troubling, but not necessarily in the way many predicted in 2010, or even presume today.

Perhaps most important, the singular focus on the decision’s empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court’s jurisprudence. Instead — thanks to super PACs and a variety of other entities that can raise unlimited funds after Citizens United — the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals — fewer than 200 people and their spouses — have bankrolled nearly 60 percent of all super PAC spending since 2010.

And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super PACs spent almost as much as all 4.75 million small donors combined.”

The impact in North Carolina

North Carolina has been anything but insulated from these toxic trends. Over the last few years big, dark money has flooded the state’s elections. As Chris Fitzsimon explained last October, immediately prior to the election:

“A new report from the Center for Public Integrity finds that State House Speaker Thom Tillis and Senator Kay Hagan had raised $30 million between them by the end of September, a staggering amount of money and a total that is surely to grow much larger when the October contributions are reported.

But that’s less than the $50 million the Center finds that outside political groups had reported spending on ads in the race by September 30, groups with no ties to the candidates or political parties, most of them from out of state.

Overall, the Hagan/Tillis race is on pace to cost more than $100 million with as much of two-thirds of it coming from special interests, not the two people asking for our votes.”

And it isn’t just in big races with national impact like the Tillis-Hagan tilt that were/are affected. The flood of outside bucks has inundated everything from the U.S. Senate race to the state Supreme Court to even the lowliest of state legislative races. Moreover, the skyrocketing incomes of the handful of families at the top of the wealth charts assures that the 2016 election will be significantly worse. It’s gotten so absurd that a few multibillionaires could literally finance the entire 2016 U.S. election without significantly impacting their own fortunes. As Fitzsimon noted:

“Something is terribly wrong here. The current system of electing people to serve in Raleigh and Washington is broken. The 2014 election has made that clearer than ever, regardless of how the high profile races turnout.”

What can be done?

In the near term, there is almost zero hope of ending this horrific lab experiment run amok. For now, America’s political (and economic) system is firmly in the pockets of a small band of plutocrats who have started to resemble the old money families that ruled Europe in the 19^th Century. As economist Thomas Piketty wrote is his bestseller “Capital in the 21^st Century,”

“The egalitarian pioneer ideal has faded into oblivion and the New World may be on the verge of becoming the Old Europe of the twenty-first century’s globalized economy.”

Happily, however, none of this is written in stone. For now, the tools remain to undo this assault on democracy.

Eighty years ago, when Americans saw the disastrous crime spree that had arisen as a result of the well-intentioned but failed experiment with Prohibition, they reversed course. Thirteen years after one constitutional amendment was ratified, another was passed to repeal it. The same thing can happen in the modern era.

A recent statement from the good government advocates at Common Cause put it this way:

“We can do better, and millions of us are trying. Last year, more than five million people have signed petitions demanding a constitutional amendment that would overturn Citizens United and again give Congress and our state legislatures the ability to put sensible limits on political spending. Voters or legislators in 16 states and about 500 localities, with a total population of more than 120 million, also have called for an amendment; one of several draft amendments introduced in Congress got 54 votes – a clear majority – last September in the U.S. Senate.

The amendment would simply restore laws in place before Citizens United; it expressly protects freedom of the press and bars any attempt to restrict the content of one’s speech. The reasonable spending limits it would permit would make it possible to ensure that everyone has a chance to be heard but no one is able to drown out other speakers.”

And whether or not it ever gets that far – the possibility of a future Supreme Court restocked with a more fully rational group of justices acting to reverse the decision is also imaginable – there can be no doubt that loud and persistent activism by millions of caring and thinking individuals will be essential to making it happen. Let’s get to work.

For more information on efforts to overturn Citizens United and to get involved in the struggle click here, here and here.