And so the bidding war begins

And so the bidding war begins

- in Weekly Briefing

The Supreme Court's corporate speech decision starts to hit the fan

A measure of skeptical cynicism has almost always been a part of the armor worn by those who champion progressive policy reform. When you're a soldier in the fight to elevate and empower the underdogs and have nots of society, you're used to watching the rich and the powerful have their way. Allow that armor to crack or slip too much and one runs the risk of debilitating discouragement when, as frequently happens, one's idealistic visions are dashed on the rocks of political reality.

Still, as cynical and skeptical as almost all progressives try to be, for most there also remains a strong undercurrent of faith in the American system – a belief that, over time, justice and progress will generally prevail over greed and reaction.

It's like the American court system: While most of us understand that wealthy individuals and corporations will always be able to purchase a better chance at a favorable result, we also still believe that there remains an abiding commitment to truth-seeking in most instances. It doesn't always work – just ask Greg Taylor or Darryl Hunt or Bo Jones – but a lot of the time it does. And most of us still believe that we could get a fair shake if and when we face "our day in court."

And so it has long gone in the political sphere. Most of us complain about American democracy, but we still participate. We witness occasional instances in which the common good prevails and it's enough to keep us coming back. We haven't given up yet.

Treading on thin ice?

Still, one can't help feel that this spirit has been gravely wounded in recent weeks by the January ruling of the U.S. Supreme Court in the case of Citizens United v. FEC. In that decision, of course, a narrow 5-4 conservative majority upended decades of precedent by holding that, in essence, corporations may spend whatever they want on campaigns to promote candidates for office.

The notion that America's enormous corporations – many of which have annual profits larger than the entire budget of the state of North Carolina – may now spend hundreds of millions – if not billions – of dollars each year to select our political leaders is a remarkable new fact. It's as if we had amended our judicial procedures to allow wealthy litigants to select their own rules of evidence. No longer would an impartial judge determine what is or is not admissible pursuant to a set of neutral rules. Rather, the decision as to what evidence a jury could or could not hear would be purely a matter of competing budgets. If Exxon wants to take the jury to the Bahamas for a few days of intensive briefings regarding its side of an oil spill dispute, no problem.

Next Tuesday, NC Policy Watch will host an important "Crucial Conversation" luncheon on the Citizens United decision to examine just how thin the ice under our American democracy has become. The event will be headlined by Brenda Wright. Wright is a veteran civil rights attorney and the Director of the Democracy Program at the national public policy research and advocacy organization, Demos. She has argued two voting rights cases before the U.S. Supreme Court and has extensive experience as a speaker and writer on voting rights, voter suppression, access to voter registration, campaign finance reform, redistricting, election protection, Department of Justice oversight, and other election reform and democracy issues.

The gory details

Wright will have plenty of important things to talk about. On the law side, of course, she will help the audience to decipher the Court's opinion. What does it really say? Who is affected and who isn't? What comes next? How far will the Court go in conferring "rights" upon corporations? What kinds of regulation of political spending, if any, are still permissible?

According to experts, Citizens United is already bolstering court challenges to other regulations on political spending. Earlier this month, the National Journal reported that judges on the powerful D.C. Circuit Court of Appeals had "sharply questioned existing limits on political action committees, citing Citizens United as an argument for deregulation." At issue in the case: Whether Federal Elections Commission regulations that cap contributions to political action committees at $5,000 per person and that require detailed disclosure requirements are constitutional.

It will also be interesting to hear Wright's take on the more immediate and practical implications of the decision. What kind of new behavior, for instance, can we expect during the 2010 election cycle? Based on early indications, this could be a sobering discussion.

Right now, all over the country, a new wave of blunt, hardball plotting is already underway. From the inner sanctums of corporate board rooms to K Street to Madison Avenue to state capitals across the country, lawyers, lobbyists and consultants are performing a hard sell on their corporate clients about the need to transform their political advocacy.

Consider the following excerpt from a recent newsletter of one Raleigh-based political consultant:

"The Highest Risk Option for Business in 2010 is Unilateral Political Disarmament

…Many businesses and their trade associations are weighing the risks of using corporate-funded independent political ads. This report offers suggestions from our speakers for low, medium and high risk options for your consideration. First, I would like to present the highest risk option: unilateral disarmament. This is what business has been doing. It's why we have so few allies.

Last Thursday, Chris Christie, newly elected GOP Governor of New Jersey, said to a Joint Session of the Legislature, ‘Today, we come to terms with the fact that we cannot spend money on everything we want. Today, the days of Alice in Wonderland budgeting in Trenton end.'

If you like Christie's statement, then work to elect lawmakers who think like that. Use all of the political tools at your disposal, including your PAC and the new right to corporate-funded independent expenditure ads. It's time to stop the high risk politics of unilateral disarmament….

With the Citizens United ruling, the U.S. Supreme Court has freed you to make independent expenditures from your general treasury on behalf of candidates for political office. The only thing that remains is your decision to use this new political tool."

Got that? According to this influential politico, Citizens United is a call for North Carolina's downtrodden, put-upon corporations to rise up and use every tool at their disposal to seize control of the policy-making apparatus. The newsletter goes on to offer a menu of specific tips and "how to" suggestions – from creating one's own faux nonprofit "social welfare" group to establishing and managing PAC's and "527's" to targeting drive time radio and airplane banners. One can only imagine what's being said behind closed doors at Exxon or Wal-Mart or Halliburton.

Going forward

Feeling cynical and skeptical yet? If so, then it's probably time to start getting up to speed on the brave new political world that Justices Roberts, Scalia, Thomas, Alito and Kennedy appear to be bent on establishing. While it remains to be seen just how far the Flat-earth Five (and the forces they have unleashed) are prepared to go, those who care about preserving the spirit of American democracy would do well to gird for battle.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.
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