February 26, 2014

Citizens United, Congressional Gridlock, and Climate Change

As delivered on the Senate floor

Mr. President, let me thank the distinguished chairman of the Veterans Committee for his remarks and for the relentlessness, the enthusiasm and the passion with which he has pursued putting together this extraordinarily strong bill for our veterans.  I look forward to supporting it and I commend him for his excellent work.

I’m here because every week that the Senate is in session, now for 59 weeks, I give my climate speech, hoping that someday spark will hit tinder.  I could give a whole separate speech about the evil done by the Supreme Court Citizens United decision.  And I could give a whole separate speech about the gridlock that bedevils the Senate.    

But this week’s climate speech will touch all three—Citizens United, gridlock and climate change— to show you how the three are connected. 

We fail here in this Senate to address climate change because of the peculiar gridlock in Congress.  And Congress is peculiarly gridlocked because of the evils of Citizens United.  Our failure to address climate change is a symptom of things gone wrong in our democracy.

I’ve spoken before on the Senate Floor about the Supreme Court’s Citizens United decision — one of the worst and most disgraceful decisions ever made by the Supreme Court; destined to follow cases like Lochner v. New York onto the ash heap of judicial infamy.  But we’re stuck with it for now. 

Until the Supreme Court gets its bearings back, there Citizens United stands. 

In a nutshell, the Citizens United decision says this: corporations are people; money is speech; so there can be no limit to corporate money influencing American elections, under constitutional principles of freedom of speech. 

If that doesn’t seem right, it’s because it’s not.

To unleash that corporate power in our elections, the conservative justices had to go through some pretty remarkable contortions:  they had to reverse previous decisions by the Court that had said the opposite; they had to make up facts that are demonstrably flat-out wrong; they had to create a make-believe world of “independence” and “transparency” in election spending; and they had to maneuver their own judicial procedures to prevent a factual record that would belie those facts they were making up. 

It was a dirty business, with a lot of signs of intention.  And it has produced evil results.

Let’s start with the contortions the conservative justices had to go through to uncork all that corporate money. 

They had to first make the leap that corporations are people and money is speech, to ensure that corporate money is protected by the First Amendment.  They went a more circuitous route than that, but that’s where they ended up.  And that’s quite a leap, when you think how suspicious the Founding Fathers were of corporations and that there is no mention of corporations in the Constitution.  So much for these conservative justices’ fidelity to “originalism”—a constitutional theory the conservatives put a lot of credence in when it suits them.

To treat corporations as people and money as speech, the conservative justices also had to overrule previous Supreme Court decisions that had said the exact opposite.  Which they did, upending a century of law.  So much for fidelity to precedent.

The conservative bloc then had to deal with the inconvenience that First Amendment doctrine actually allows the government to regulate elections to protect against either political corruption or even the appearance of corruption.  So how do you take away the people’s ability to restrain corporate money in elections, when protecting against corruption is a legitimate reason for restraints on corporate money? 

What you do—and what they did—is decide, by making a “finding of fact,” a finding of fact that corporations’ money would not corrupt elections or politics; indeed that no amount of corporate money could even appear to corrupt elections or politics.  So much for fidelity to the judicial rule that appellate courts, state or federal, are not supposed to engage in fact-finding.

This fact-finding about corruption by the conservative justices caused another little inconvenience:  the assertion that corporate money can’t corrupt politics is laughably false.  That meant that the conservatives couldn’t allow a factual record in the case.  A factual record, with testimony and evidence about such a ludicrous proposition, would have blown it out of the water.  So they let the little, narrow Citizens United case get all the way through the judicial process, including briefing and argument before them, and then they went back and changed the question into a big one.  This clever maneuver, at the very end of the case, guaranteed that there would be no factual record developed on the new and larger question, and that freed their hand.

I should emphasize that this was a third transgression.  The first transgression was for conservatives to ignore their own constitutional theory of originalism in getting into the  “money is speech” result.  The second transgression was violating the judicial rule that appellate courts aren’t supposed to engage in fact-finding at all, let alone ludicrous fact-finding.  The third transgression was this maneuver with the question presented.

As a general rule, when cases come to a supreme court, state or federal, the court defines the “questions presented” by the case.  This may not seem like a big deal, just something in the ordinary course, but it’s actually an important limit on judicial power under our constitutional separation of powers:  it’s what prevents a supreme court from roving willy-nilly into any question it wants, any time.  Courts have to wait until a case comes that presents a particular question, and then they identify what the question is.  So it was odd indeed when the Chief Justice went back after the case was briefed and argued, and did his own new “question presented.”

But it did the job.  Now the Court, with no record saying otherwise, could pretend that corporate money just plain can’t corrupt American elections; can’t do it, no way, no how – the conservative immaculate conception of corporate money. 

Pretending that corporate money just couldn’t possibly corrupt, or even appear to corrupt, American elections, allowed them to sweep away any interest of the people in keeping corporate corruption out of our politics and elections.  People don’t need to worry their little heads about corruption, they said; corporate money in elections is immaculate, and can’t corrupt. 

And bingo, that got them where they wanted:  we the people could no longer limit corporate spending in our elections. 

And as we’ve seen, the big money began to flood in. 

Citizens United actually gets worse in how “transparent” it was going to  be whose money was really behind all those negative ads.  Independent?  Transparent?  Heh…look at the last elections.  How’d that work out? 

Subsequent history shows the falsity of that nonsense. 

And those contortionist justices completely ignored a big, important fact:  what big money can do, big money can threaten to do, or promise to do.  And there’s going to be nothing “independent” or “transparent” about those private threats and promises.  The Citizens United decision opened this avenue to corruption, while pretending corruption was impossible.

So on to the next step:  How do the evils of this Citizens United decision lead to the evils of gridlock? 

Well, just look around.

Look at who’s scared of whom, and look at who’s angry at whom around here. 

Democrats and Republicans actually get along pretty well, at least Democrats and most Republicans.  We’re policy adversaries on many things, but we’ve been policy adversaries for decades.  Democrat versus Republican is old news.  It doesn’t explain the new weirdness around here.

So look at what you see.  The real fear and the real anger around here is between the mainstream Republicans and the Tea Party extremists.  Look around.  Ask around.  Where do emotions run high?  Where are the shouting matches?  Where are insults hurled?  Where are Senators heckled by their colleagues?  The worst of it is not between Democrat and Republican; it’s between Tea Party and Republican. 

Who’s being told how they can and cannot vote, and what they can and cannot say?   Who’s being bullied and punished when they don’t follow the party line—the Tea Party line?  Not Democrats:  Republicans.  And no one likes being bullied.

Is it the irrefutable logic of Tea Party argument that scares regular Republicans? 

Is it the clear grasp by the Tea Party of modern economic, cultural, and scientific realities that scares regular Republicans? 

Is it the broad way that the Tea Party represents our broad and diverse democracy that scares regular Republicans? 

Is it the keen political acumen of the Tea Party, shutting down the U.S. government, and darned near blowing the debt limit, that scares regular Republicans?

Those questions answer themselves, don’t they?

No, the thing that scares regular Republicans is the big money—the big corporate money, the billionaire money, behind the Tea Party.  The Koch Brothers may be out to make even more money, but when the Koch Brothers’ big money comes in and bombs you in a small primary election, it’s pretty scary.  And when the paid-for right-wing attack machine turns on you in your Republican primary, that can be pretty scary.

So the gridlock comes when the Republican Party won’t work with Democrats, not because we don’t make sense, and not because most Republicans don’t want to make sense, but because they’re scared of Tea Party attacks, funded by Citizens United money. 

And that brings us to climate change, where as I described in a recent speech, tens, perhaps even hundreds of millions of dark-money dollars are being spent.  Is all that money being spent having an effect on Republicans?  Just look.

In this body, we have Republican colleagues who have publicly acknowledged in the past carbon-driven climate change and have called for legislative action.  In this body we have a former Republican presidential nominee, who campaigned for president on addressing climate change.  In this body we have Republicans who have spoken favorably about charging a fee on carbon, including the Republican original cosponsor of a bipartisan carbon pollution fee bill.  We have a Republican colleague who cosponsored climate change legislation when he was in the House, and another who voted for the Waxman-Markey “cap and trade” bill when he was in the House.    

In this body we have Senators here who represent historic villages, now washing into the sea and needing relocation because of climate change and sea-level rise; and Senators who represent great American coastal cities, now overwashed by the sea at high tides because of climate change.  We have Republican Senators whose home-state forests—by the hundreds of square miles—are being killed by the marauding pine beetle; and glaciers that are disappearing before their own eyes in their own lifetimes; and Republican Senators whose home states are having to raise offshore bridges and highways before the rising seas.  

We have Republican voters who actually get that climate change is real.  It’s the Tea Party that’s the deniers.  Sixty-one percent of non-Tea Party Republicans say there is “solid evidence the earth is warming.”  But only 25 percent of Tea Partiers agree; a thirty-six point swing between Republicans and Tea Partiers. 

Republicans outside of Congress, immune from the effects of Citizens United, have actually supported a carbon pollution fee, as long as it’s revenue neutral and doesn’t add to big government.  You could actually lower other taxes with it.

But Republicans in Congress will now scarcely say a word about climate change.  Not since Citizens United.  Not since that disgraceful decision uncorked all that big, dark money, and allowed it to cast its shadow of intimidation over our democracy.

So that’s how Citizens United connects to climate change.

While our American democracy suffers and stalls, the evidence of climate change relentlessly mounts.  The damage will be done, in our atmosphere and oceans.  The damage has already started.

And I have to warn my colleagues that the denier machinery—the Beast I described earlier this month—will ultimately be shown for the evil apparatus of lies it is.  When that happens, there will be more damage to go around. 

There will be damage to a party that allowed itself to be taken over and silenced by that corrupt apparatus, ignoring the plain facts in front of their faces. 

There will be damage to a Supreme Court that went through such peculiar contortions to let that money loose, ignoring the plain facts in front of their faces. 

And we, we Americans, will hold our lamp high to the rest of the world, as a beacon of democracy, we will have some explaining to do; how we, to the dismay of the rest of the world,  let our great democracy be stifled by greedy polluters, ignoring the plain facts that the world faces.

The historian David McCullough spoke at the Library of Congress two weeks ago about John Adams and America’s founding generation.  He reminded us that those men, when they signed the Declaration of Independence, were signing their own death warrants.  When they pledged their lives, their fortunes, and their sacred honor to this cause, it was not mere words. 

David McCullough explained, “It was a courageous time.” 

And look at us, our great democracy mired in polluters’ lies and money. 

But I still believe this can be a courageous time.  As Americans have in the past, we can shed the shackles of corrupting influence and rise to our duty.  It just takes courage to make this a courageous time.