Another Date That Will Live in Infamy: 10 Years After Citizens United – By James C. Nelson (Counterpunch) / Jan 21 2020
On January 21, 2010, the Supreme Court of the United States handed down one of its worst and most activist decisions ever. Indeed, in terms of harm caused and likelihood for future harm, the Court’s decision in Citizen’s United is, likely, the most pernicious Supreme Court decision ever issued in our nation’s history.
A historical recap: Citizens United, a wealthy non-profit that ran a Political Action Committee with millions of dollars in assets, produced and promoted an anti-Hillary Clinton documentary movie to be used in the 2008 Democratic primary. The Bipartisan Campaign Reform Act of 2002prohibited electioneering communications within 30 days of the last primary election and within 60 days before the general election. Citizens United challenged the constitutionality of this ban, along with the Act’s disclaimer and disclosure requirements. The federal district Court upheld the law and Citizens United’s appeal reached the Supreme Court.
Instead of disposing the case on the narrow legal basis before it, and in what can only be described as gross judicial activism, the Court sent the case back to the district court to be re-briefed (not to be re-heard by the trial judge) on the broader issue of whether the Bipartisan Campaign Reform Act was facially unconstitutional. Having then before it the question that the Court really wanted to decide, the Court held that the Act was unconstitutional as being a ban on corporate independent expenditures and a suppression of protected corporate political free speech.
Remember, too, that, textually, the Federal Constitution does not once refer to corporations or other non-human legal entities, much less accord any such non-human entities a “right” to anything or to be protected from anything. In point of fact, every constitutional right that non-human legal entities now enjoy was created, from whole cloth, by the United States Supreme Court. Every single one—including the right of political free speech!
That said, Citizens United and other decisions which it spawned have ushered in the unprecedented use of dark, individual and institutional mega-money expenditures to influence elections and to, effectively, silence the voices of individual small contributors and ordinary voters. This decision and its progeny have chipped away at expenditure and contribution limits imposed by Congress and by the States, upon individuals, corporations, unions, special interest groups, “non-profits,” and trade associations.
Citizens United has resulted in multi millions of dollars pouring into elections with little or no disclosure of the source of funding and with little, if any, accountability for the truth or accuracy of the information and messages promulgated. Indeed, candidates for political and judicial office are being “marketed” to voters in the same fashion that pharmaceuticals are hawked to consumers (unfortunately, though, without disclosure of the adverse side effects).