March 10, 2010

Corporate justice at our expense

The Supreme Court’s recent slim majority decision in Citizens United has opened floodgates that long prevented corporate cash from drowning out the voices of American citizens in election campaigns. Those who care about the integrity of the American political process view this decision with concern and astonishment.

The Senate Judiciary Committee will hold a hearing about this misguided decision Wednesday. The ruling continues an increasingly clear pattern of the court’s activist conservative bloc. First, decisions are by a narrow 5-4 majority. Second, decisions overrule well-established law and well-settled precedent. Third, the outcome favors corporations, the rich and the powerful.

The Constitution has long been understood to allow Congress to protect elections from the corrupting influence of corporate cash. As President Barack Obama has observed, the principle embodied in the 1907 Tillman Act – that inanimate business corporations, creatures of our laws, are not free to spend unlimited dollars to influence election campaigns – has been an established cornerstone of our political system for more than 100 years.

The five-justice conservative bloc of the Supreme Court tossed that principle aside, baldly denying any risk of election corruption, despite numerous congressional findings to the contrary. As my colleague Sen. Chuck Schumer (D-N.Y.) has said: “The Supreme Court [has] predetermined the winners of next November’s elections. It won’t be Republicans. It won’t be Democrats. It will be corporate America.”

I look forward to working with Schumer to limit the harmful effects of the Citizens United opinion: to prevent foreign corporations from influencing U.S. elections; to ban pay-to-play spending by government contractors; to strengthen disclosure laws that ensure voters know who is funding the ads they see; and to enhance corporate disclosure of election spending.

There are certain to be well-bankrolled interests opposing these reforms. But it is worth the fight.

Unfortunately, the activist, corporate-leaning pattern of the Supreme Court’s conservative bloc makes it likely that it will hand down more decisions favoring corporate and powerful interests.

In retrospect, we could have seen the Citizens United decision coming when the same five justices decided the 2007 Wisconsin Right to Life case, creating a gaping exception to the ban on corporate election expenditures.

Beyond election law, the conservative bloc’s preference for the interests of corporations to the detriment of actual American citizens was revealed in the terrible Ledbetter decision. This threw a victim of employment discrimination out of court because she did not know in time about pay discrimination that had been hidden from her. Fortunately, Congress corrected that error; it was the first bill that Obama signed into law.

However, other recent decisions by the Roberts court that hurt American citizens remain uncorrected. The Leegin case overruled the near-century-old doctrine that vertical price restraints by corporations were illegal per se under antitrust laws. That may seem like a technical issue, but it could have real advantages for corporations and harm for consumers: less competition and higher prices.

And consider the Iqbal decision, making it harder for victims of discrimination or other illegal conduct to get the evidence they need to prove their claims against employers. Again, it is a seemingly technical issue but one under which employees will lose.

Elections are the lifeblood of democracy. The U.S. Constitution is established by and for “We the People of the United States.” Humans are clearly different from artificial corporations. And nothing in the Constitution gives CEOs the right to amplify their voices over all of ours through the corporations they control.

The activist conservative bloc, currently driving the court to the right, does not seem to appreciate this foundational, common-sense principle of our republic – at least not when corporate interests are concerned.

The court should return to its proper role of providing justice to all Americans, not just the privileged few.

By: Sheldon Whitehouse