Citizens United Evaluated

by Craig Barnes

On January 21st the Supreme Court of the United States issued an opinion that rocks the foundations of democracy and the assumptions about who governs in America. Citizens United v. Federal Elections Commission raises questions, doubts, and fears like no other decision in generations. It involved the attempt by a right wing group to distribute a political video that was highly critical of Hillary Clinton during the primary season of 2008. The FEC held that to show the film within 30 days of an election would be in violation of the long-standing rule against corporate spending. A federal district court heard a mountain of evidence concerning corruption and agreed with the FEC.

On January 21, 2010, the Supreme Court reversed, holding that this limit on corporate free speech was unconstitutional. Corporations, as much as persons who bleed and suffer, must be allowed to participate in America’s elections. Five conservative justices stated that as a matter of law corporate monies (a) will not distort the balance of power in elections, (b) will not give the appearance of corruption, and (c) will not deprive shareholders of their rights.

There was no controlling precedent upon which the five justices relied or could have done. Instead they acted upon their own motion to overrule a body of contrary precedents dating back to1908 and in the laws of 22 states. The net effect of unraveling all these precedents will be an upheaval in American election law, across the board.

Every first-year law student learns that precedents are binding. These five justices, to the contrary, explicitly held that precedents are not binding when they believe that those earlier cases were “not well reasoned.” The “not well reasoned” test is, sadly, no more than a “we don’t like it” test, and that now means that any legal precedent may be overruled whenever the Court changes hands, or, as the case may be, changes minds. This is not any longer the rule of law but becomes the rule of personalities. When personalities change, the law may change.

History tells us that when the law becomes the whim of personal opinion, kings and priests, presidents and commanders, corporations and aristocrats take over. That is the larger danger that these five justices have now ushered into American life. Government by large property interests will not be the same as government by the people.

In January 1776, Thomas Paine cried out against government by propertied interests in his famous pamphlet Common Sense. “Of more worth, he wrote, “is one honest man to society, … than all the crowned ruffians that ever lived” and with those words Paine justified our separation not just from the king but from the domination of all those aristocratic interests in England. On January 21, 2010, however, with one decision, five justices (out of an American population of over 300 million) have acted to put the propertied interests back in control.

The result is more egregious because to get to this result the five justices did not follow traditional rules. To the contrary, one after the next, they violated rules that lawyers and courts have relied upon for generations:

They ignored the ancient principle of limiting constitutional decisions to matters presented by the case before them and instead made a general declaration of unlimited application not just to this case and these facts, but to any case of corporate speech. They thus implied that they will look skeptically upon any limit on corporate speech, whatsoever, in all possible alternate fact situations in the future. Such rulings of general application are rare and have been disapproved since the founding of the republic, in principle. These five disregarded that ancient principle.

They also, in an act of extreme self-confidence, made their own findings of fact concerning corruption and the appearance of corruption. They said there was no connection between massive corporate spending and the reality that legislation will thereby be influenced, and held to that effect in spite of mountains of congressional and lower court findings to the contrary. The five justices therefore substituted their own imagined findings for the actual findings by both congress and the lower court.

They said, out of the blue, that the public’s faith in the democratic process would not be affected by corporate spending. That one is a shocker.

To disregard the findings of fact of the lower court and to establish new findings out of thin air violates the first principle of appellate practice and threatens the integrity of all courts. Why bother presenting facts to the lower court, every litigant may now ask, if the Supreme Court can come up with its own facts and decide the case based upon ideology?

Further, if a corporation owned by sheiks of Saudi Arabia or Burundi, or even by Osama bin Laden, decides to invest billions in American elections, there is nothing in this decision to stop them. They did not just open the floodgates to AIG and the pharmaceuticals; they beckoned global corporations to play with American politics as well.

It does not end there. The five rejected the idea that shareholders who disapprove of a corporation’s political advertisements should be taken into account. One of us might favor health care reform, and we might own stock in, say, General Motors. But if General Motors opposes health care reform with millions of dollars of advertising our opinions are irrelevant. The five said that as far as they are concerned, shareholders’ money may be used to advance opinions with which thousands or millions of those shareholders disagree.

To overrule one hundred years of established law and alter the course of American politics is the height of judicial activism. That it should be accomplished by judges who held themselves out to the Congress and to the public as originalists or as devoted to the ideas of James Madison or Thomas Jefferson, or to the idea that the law should be above politics is to reveal either a deep cynicism or intellectual dishonesty. It cannot be claimed to be good lawyering, or required by precedent, or existing Supreme Court practice.

Not since Bush v. Gore when the Court selected a president has a decision seemed as political and not since Dred Scott in 1857 when the court declared slaves to be property and therefore not citizens or entitled to constitutional protection, has a decision reached as far into American culture as this will do.

These five justices have therefore now thrown down the gauntlet. They have proclaimed, in effect, that the rise of control by the propertied interests is to the long-term benefit of all Americans and is not to be restrained. From the public response since January 21st, it is clear that millions of Americans disagree. When president Obama singled out the Court in his State of the Union speech and castigated them for this decision he was met with ringing applause and a standing ovation by members of Congress who rose to their feet around the sitting, silent justices. Justice Samuel Alito, wagged his head in disbelief that a president should question his judgment but all around him, the galleries roared.

It may be well in the days to come for the five justices to realize that they have provoked the overwhelming disapproval of those who still believe in democracy. Some will suggest constitutional amendments. Some will suggest changing the nature of the court. Some will suggest legislation. The gauntlet is down. The Supreme Court has put itself on the front burner of American politics.

Santa Fe, February 1, 2010

Government by the people and for the people

The story about my spiritual beliefs, the North Carolina Constitution and one man’s threat to unseat me has gone viral, both in print and on the Web. I’m fielding e-mails from dozens of people around the country—so far all supportive—and the writers include Christians as well as atheists and Quakers and Muslims and pagans and more.

I’ve read some of the thousands of comments posted on blogs and the vast majority of folks support the separation of church and state that has figured so prominently in the history of this country. It is reassuring to me that there is such a broad understanding that freedom OF religion necessarily includes freedom FROM religion, else such a guarantee has no real meaning. Our country was founded by people who had suffered first-hand the demagoguery of state-religion and religious persecution, and we see today the dangers inherent in such systems where they persist.

While many ideologues continue to advance the idea that our Founders’ language concerning rights “endowed by our creator” is the core tenet of this country, and that finding favor with God is the root of our success, I’m more inclined to think that it is the legacy of adherence to science that is the most important contribution of Jefferson, Franklin, Washington and their peers.

Science. not God, is the real source of America’s power—science unencumbered by dogma and empowered by vast resource wealth. Other societies have surely included as high a percentage of the religious faithful as ours, but the difference here was the institutionalized effort to liberate experimental results from the grip of received wisdom. Whether or not we remain the freest society on earth today can be debated, but we were unarguably the first to fully embrace the enlightenment and to institutionalize equality before the law (however imperfectly it has been enforced).

Among my many new correspondents, I’ve found atheist critics who suggest that my stated positions are too temperate and that I’m being less than forthright by labeling myself as “post-theist” rather than atheist. For example one blogger said, “he offers some language that avoids full ownership of the position at times.”

By way of explanation I offer this: It seems to me that theism emerged in human thinking over thousands of years during which we had scant explanation for many of the phenomena in our world. We didn’t understand our origins, whether in utero or in the ancient past. We didn’t understand disease or the vagaries of weather that brought so much suffering to our lives. We didn’t know what the lights in the night sky were or what forces controlled them. And so we handed all the unknowns over to a deity or deities and looked for their favor since they seemed to run the show.

Atheism, a rejection of theism, was an obvious outgrowth of the Enlightenment as science began to provide explanations for ancient mysteries. As a word it perfectly expresses what it means—not theist. Unfortunately, atheism has been draped with a strong sense of the negative, principally by its opponents, in the same way that the word “liberal” was poisoned by conservative pundits over the past few decades. I’m not averse to being called what I am, but I don’t accept the baggage that others attach to their use of that word.

I view my own position has having been shaped in an era during which virtually all of the day-to-day phenomena we experience are explainable by science. While it’s true that there remain unknowns and even unknown unknowns, those blank spaces have been pushed to the margins. Even the well known evangelist Billy Graham, subject of my 2007 biography, has pushed his interpretation of the creation story back 5 billion years. Theism has become marginal. We are living in a post-theist era.

When it is combined with government, theism remains dangerous. The current wars in the mid-east were first cast as a “crusade” by George Bush and continue to have a strong religious component, with the evangelical-led Blackwater a poster-child for all that can go wrong. To the extent that we delude ourselves into believing that “God is on our side,” we leave ourselves open to despotism. We ignore what the Bush administration disparaged as “the reality-based community” at our peril.

Blind belief in the righteousness of our current wars is bankrupting this country while our economy has gone into a tailspin. And while our leaders often cloak their actions with prayer and religious posturing, it is the oil companies and defense contractors who reap profits while our young women and men sacrifice their lives.

And, in regard to death, it is my conclusion that those of us who believe that this is our one and only life are much more likely to value and protect the lives of our brave soldiers and our citizens than those who believe that they will live again in heaven.

A few days later … You have the power. You made a difference.

(This is the message I sent to our volunteers after the election – I’ve been asked to post it on the campaign Web site.)

Asheville heard you loud and clear!
You are amazing. Over 750 strong, you just participated in the largest grassroots campaign in Asheville City Council history.

Because of your work knocking on doors, printing signs, making phone calls, donating and raising money, preparing food, creating and donating art work or services, telling your friends and finally standing at the polls, we have changed Asheville’s government in important ways. The primary election finishers ranked from 1-5 were in descending order from liberal to conservative.

The order shifted somewhat in the general election following a smear campaign that cost at least thousands and quite probably more than $10,000. The strength and resilience of our grassroots effort withstood the kind of attack that stopped progressive/liberal candidates in 2007.

On an election day which saw slippage of Democratic candidates in Virginia and New Jersey, we maintained the grassroots, populist energy that delivered North Carolina for Obama in 2008, and together we can continue to effect real change. It won’t be as intense as the campaign, but I hope I can count on you to stay active. When important issues come before Council, the best we can do is stick together, make phone calls, write letters and e-mails and let other Council members know that our campaign is alive and well and engaged. It is about us, not about me.

I am sincere about public financing of local elections and am already in touch with activists in Chapel Hill to learn how their new system worked this year. While I am enormously grateful for the 550+ donors who made this campaign work, I would much prefer to eliminate fundraising, to eliminate the influence of big money, and to return to the kind of populist, participatory democracy that existed before the Supreme Court decided that money was a form of speech.

Last of all, you are invited to the swearing-in ceremony on December 8, at 5 p.m. at City Hall.

Thank you, and thank each other. It took all of us working together to make this campaign a success and I am enormously grateful to you for your participation.

As Chris Smither, composer of my early campaign theme “Can’t do it alone” sang in another of his great songs, “I could take the credit, but it’s thanks to you.”

Thank you, thank you, thank you

Thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, and you too.

Join the team to help me keep Asheville real

1. Let’s Keep Asheville real when it comes to development and strengthen the accountability of City Council concerning development.

2. Let’s Keep Asheville real in our approach to the environment. The region needs a Plan B to prepare for a new energy future that may include higher utility and fuel costs and reduced tourism. Green jobs are local jobs that can’t be exported.

3. Let’s Keep Asheville real by demanding that county and state elected officials rework the water rules to be fair to Asheville’s rate- and tax-payers.

4. Let’s Keep Asheville real by reinstating the Minimum Housing Code (which was eliminated in 2002). We need to protect our housing stock, particularly so in this time of financial upheaval and rapidly shifting ownership of rental properties.

5. Let’s Keep Asheville real by establishing a meaningful Living Wage for all city employees, including contract labor.

6. Let’s Keep Asheville real by enacting a three-strikes law concerning contracts and purchases. Other cities have decided to not patronize businesses that have been convicted three times of tax fraud, civil rights violations, wage/hour lawbreaking or environmental violations. There’s no reason for your tax money to go to repeat offenders.

7. Let’s Keep Asheville real by enacting meaningful campaign finance reform.