The Wages of Citizens United: The Courts.

“When the Chief Judge joined in the argument about the continuing vitality of the corruption rationale for campaign finance restraints, he flatly accused Kolker of evading the Citizens United ruling. “I’m not hearing you address Citizens United,” Sentelle said. And Judge Thomas B. Griffith chimed in: “You’re trying to avoid Citizens United. This is a new world: corruption means a lot less than it did before.'”Hey, you said it, Judge. According to the good folks at SCOTUSblog, the doors to unfettered campaign cash are open in a big way in the minds of the DC District Court after Citizens United: “From the opening moment of the 65-minute hearing, most of the nine judges on the en banc Court treated the Supreme Court’s ruling…as the beginning, not the end, of expansion of those freedoms. When an FEC lawyer tried to bring up, and rely on, older precedents, he was reminded repeatedly that those came before Citizens United.“

President Obama’s stern words about the decision in his State of the Union address may have induced Justice Alito to expose himself as a partisan hack, but it seems, alas, that the Justice and his four conservative contemporaries will have the last laugh.

The Wages of Citizens United: The $$$.

“The Chamber spent much of its money in 2009 on campaigns that worked — it scared the Senate away from considering a version of the Waxman-Markey cap-and-trade legislation, and an argument can be made that its cutting ads on health care (with money taken from some insurance companies) helped to undercut support for the legislation.” You think? In a shape-of-things-to-come moment even before Citizens United goes into effect, the Chamber of Commerce outspent both political parties in 2009.

“According to The Center for Responsive Politics, the U.S. Chamber of Commerce and its national subsidiaries spent $144.5 million in 2009, far more than the RNC and more than double the expenditures by the DNC.” But corporate spending isn’t a problem or anything.

The Wages of Citizens United: The People.

“In a new national poll, 65 percent of Americans say they disagree with the 5-to-4 U.S. Supreme Court decision to allow corporations to spend without limits on ads in political campaigns.” And yet hope remains while the company is true: A new poll finds Americans across the board are unhappy with the court’s ruling in Citizens United.

“The Reid poll found little difference in partisan attitudes…Sixty-six percent of Democrats either “moderately” or “strongly” disagreed with the ruling, but so did 63 percent of Republicans. A whopping 72 percent of Independents disagreed with the Supremes’ decision.” One wonders how those numbers might’ve moved if we started using Citizen United’s full name to discuss this case…

You stay classy, GOP. And folks thought “teabagger” was ugly.

The ACLU’s Achilles Heel…and Glenn Greenwald’s.

“Debate on the question of money and politics has been percolating within the ACLU for years, long before the Supreme Court handed down its decision in Citizens United. ‘It is difficult to think of an issue that has generated more internal controversy,’ an internal ACLU memo states.“

To its credit and as a result of the Citizens United decision (which the organization has previously lawyered and lobbied for), the ACLU convenes a weekend summit to discuss its campaign finance reform position. “‘The ACLU’s version of democracy is from the ground-up,’ one civil rights lawyer, David Gans, told the ACLU’s board, which was assembled downtown at One New York Plaza. ‘Now Exxon Mobil can spend 2% of its money and blow that all up.’“

Here’s hoping the reformers win the day — or walk out CIO-style if they don’t. Imho, the stance that unlimited corporate funding of our elections is a right guaranteed by the First Amendment has always been the Achilles’ heel of an otherwise superb organization. I’m not a lawyer, but as far as I can tell, their reasoning relies on two unfortunate bugs in the legal code — corporate personhood and the conflation of money with speech — that they too often deem fundamental First Amendment principles. I would argue they’re not.

For why the former — corporate personhood — has obvious problems, just read Justice Stevens’ dissent from Thursday:

“The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity; as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law….

Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”

For the latter — the ruinous conflation of money and speech in Buckley v. Valeo — check out Stevens’ concurrence in Nixon v. Shrink Government Pact (2000), where he says how he’d come down if Buckley were reopened:

“In response to [Justice Kennedy’s] call for a new beginning, therefore, I make one simple point. Money is property; it is not speech.

Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results…

Telling a grandmother that she may not use her own property to provide shelter to a grandchild — or to hire mercenaries to work in that grandchild’s campaign for public office — raises important constitutional concerns that are unrelated to the First Amendment.”

(See also Byron White’s concurrence in part in Buckley, which argues that “[n]othing in the First Amendment stands in the way of ” campaign finance limits.)

But somewhere along the line and for whatever reason, the ACLU latched on to both of these unwise shibboleths, and have since been arguing that corporate personhood and the idea of money as speech are both enshrined in the First Amendment. Uh…really?

To see what kind of damage these two bogus ideas have wrought, one need only to go over to Salon and read through Glenn Greenwald’s ugly meltdown on Citzens United the past few days. As anyone who visits GitM regularly knows, I link to Greenwald pretty much constantly. On a host of issues, from Obama’s terrible record on civil liberties to the broken-down state of our journalism, he’s been remarkably on point, and one of my favorite columnists to read. I used to wonder if there was anything I disagreed with him on. Well, it turns out, there is. And, apparently, I’m a “partisan hack” for thinking different.

For the Cliff Notes version of this whole conversation, I wrote up a snarky summation of it here yesterday, well after things had gone south. But, basically, Glenn — on “homework assignment” — argued on Friday that, all the negative consequences that will ensue aside, the Majority in Citizen’s United decided the case correctly, that this was a victory for the first amendment, and that people who disagree with their decision are practicing “outcome-based law.” (He also made the dubious and unprovable assertion that things can’t get any worse anyway. Really? We’ll see.)

Well, this assessment did not sit right with a lot of people. Some questioned his reading of the case. Others pointed out that law is always outcome-based, even the Majority’s ruling in Citizens. (The concerned outcome for Justice Kennedy here is that blogs might get banned someday, somehow, if this ruling isn’t made. I’ll take my chances.) And, others, such as myself, questioned these two principles — corporations are people, money is speech — that the ruling was based on.

Well, suffice to say, Greenwald did not take criticism well. He adamantly refused to engage either notion — money isn’t speech, corporations aren’t people — as having any merit whatsoever, eventually trying to write off both with some dubious 1L hypotheticals. (All were answered to his disadvantage, several times over.) He went on to ridicule the folks who disagreed with him in a “check out the Big Brain on me” kinda way. (He argued his lawyerly creds just means he knows better.) He ignored Stevens’ actual dissent throughout. And he accused folks of being just like Dubya on torture for deigning to disagree with him on the decision.

This embarrassing conceit — those with disagree with me are Dubyaites, end of story — formed the extraordinarily condescending introduction of Greenwald’s follow-up to his first post. Still ignoring the legitimate criticisms people were making of the two assertions above — money=speech and corporations=people, Glenn instead pulled one line from Justice Stevens’ ninety pages of dissent to argue that all nine Justices agreed with both of these propositions. (This even though both Ginsburg and Sotomayor questioned the corporate personhood idea in oral arguments, and that Stevens explicitly said he did not agree with the money=speech proposition in Nixon v. Shrink, an argument Glenn would not touch.) As it turns out, the one line Glenn pulled from Stevens’ dissent proved neither assertion. Nonetheless, he returned to his shell, refusing to even consider the notion that “money=speech” or “corporations=people” might be lousy interpretations or legal accidents, or that they aren’t necessarily covered by the First Amendment.

When I shared the above ACLU story this morning, Greenwald blew another gasket:

“The ACLU has a long history of standing up to and defying people [like] you: those who pretend to believe in the Constitution and civil liberties only when it can be used as a weapon to advance your partisan and political agenda.

If they didn’t reverse themselves on the First Amendment rights of Nazis in the wake of huge numbers of people like you (those who only believe in the Constitution when it suits them) cutting off funding and leaving the organization, I highly doubt they will do so now….

But what has made the ACLU such an important and unique organization is that they have stood their ground on principle and resisted the efforts of people like you to turn it into a partisan tool rather than an organization devoted to the Constitution.”

I guess he figured I’d forget what “people like me” means from paragraph to paragraph. And, yes, y’all, I’ve been writing on politics and progressivism here for ten years because I’ve always wanted to subvert the Constitution to my own ends. And I would’ve gotten away with it too, if it weren’t for that nasty Greenwald!

Anyway, when I then reminded Greenwald that people of principle can disagree on these issues, and that it may even be possible that the ACLU reformers might even be the right ones in this story, that’s when I got called an Orwellian partisan hack once more. (FWIW, here’s my kissoff. I particularly like “paddock of principle and certitude.”)

Throughout this whole back-and-forth, there was not even the remotest possibility that any other interpretation on these two questions had merit for Greenwald: Corporations have first amendment rights. Money is speech. Both are obviously enshrined in the First Amendment. And arguing anything else is ridiculous and deserving of scorn (even if Supreme Court justices have argued differently in the past, including as recently as Thursday.) So let it be written, so let it be done.

Uh…really? Who knows…perhaps it’s a lawyer thing. Nonetheless, this myopic, bullish way of thinking — I hold the only correct possible interpretation of the law, and you’re either with me or you’re with the Dubyaites — isn’t very satisfying on either personal or argumentative grounds. And Greenwald’s constant doubling down on his original argument, even as more and more holes were poked in it by various responders, makes me question not only his temperament but his writing in general. He usually provides a valuable public service, no doubt, but he seems to have bought into his own hype as an Incorruptible Defender of Liberty. If you can’t think outside of yourself once in awhile, or find some way to weigh arguments you may not necessarily agree with without deeming them unprincipled, you’re really not much use to anyone.

Update: Looks like Greenwald addressed this topic one more time this morning. Here’s what he said:

“‘Money is not speech’ is an idiot bumper sticker slogan, not a meaningful argument which resolves anything. ‘Corporations have no constitutional rights’ is such an extreme and dangerous position (it endorses the constitutionality of the FBI’s searching whatever corporate offices they want and seizing all corporate documents with no search warrants or probable cause, or the Congress’ imposing $10 million fines on corporations every time they criticize the government, among other things) that it’s frivolous in the extreme. Despite that, I spent substantial time all weekend addressing and responding to those frivolous bumper sticker slogans.“

So there you have it. An “idiot bumper sticker slogan”…repeated verbatim by Justice Stevens in 2000. (And, for what it’s worth, Greenwald referred to civil rights lawyer David Kairys’ piece on these two questions, linked several times above, as “stupid and ill-informed.”) Class act, Glenn.

Lo, Here Comes the Flood.

“The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law…The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.“

Well, it was a nice republic while it lasted. In a 5-4 decision, the Supreme Court finally hands down its Citzens United verdict, and it is ugly. [Full Text] Basically, the distinction between corporations and individuals has been erased, and, by the already dubious proposition that money is speech, unlimited corporate expenditures in campaigns is now just good, old-fashioned government. Welcome to the new Lochner era, y’all.

By the way, this is a much, much bigger deal than Scott Brown or the effing Edwards baby. Not that you’d know that from watching the news right now.

Update: More reactions:

Fred Wertheimer, Democracy 21: “Today’s Supreme Court decision in the Citizens United case is a disaster for the American people and a dark day for the Supreme Court…With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.“

Bob Edgar, Common Cause: “The Roberts Court today made a bad situation worse. This decision allows Wall Street to tap its vast corporate profits to drown out the voice of the public in our democracy. The path from here is clear: Congress must free itself from Wall Street’s grip so Main Street can finally get a fair shake.“

Robert Weissman, Public Citizen: “Shed a tear for our democracy…Money from Exxon, Goldman Sachs, Pfizer and the rest of the Fortune 500 is already corroding the policy making process in Washington, state capitals and city halls. Today, the Supreme Court tells these corporate giants that they have a constitutional right to trample our democracy.“

Sen. Russ Feingold (D-WI): “[T]his decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century’s worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections.“

President Obama: “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.“

Slate‘s Dahlia Lithwick: “Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is ‘to confuse metaphor with reality.’ Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.“

The Levee’s Gonna Break.

“‘The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for office,’ Kavanaugh wrote.” (And they’re about to do it again.) With Emily’s List v. FEC, a federal appeals court strikes down “soft money” regulations. [Opinion.] Sigh. This is all going to end very badly.

Stuck in the Middle with You.

“That large-heartedness – that concern and regard for the plight of others – is not a partisan feeling. It is not a Republican or a Democratic feeling. It, too, is part of the American character. Our ability to stand in other people’s shoes. A recognition that we are all in this together; that when fortune turns against one of us, others are there to lend a helping hand. A belief that in this country, hard work and responsibility should be rewarded by some measure of security and fair play; and an acknowledgment that sometimes government has to step in to help deliver on that promise.“

As I’m sure you know, President Obama delivered his health care reform address to Congress last night. [Transcript.] My thoughts on it are mixed.

On one hand, speaking in terms of rhetoric, style, and delivery, this was an amazing speech, his best since the campaign days. While it’s an open question how long its effects will linger, the address clearly and decisively helped move the reform ball forward. And the emotional closer, featuring Ted Kennedy’s heartfelt final words to the President, was incredibly moving. In sum, it’s the exemplary address we knew Obama had in him on this issue, and he brought it home perfectly.

But, all that being said, I can’t shake the nagging feeling that [a] the policy being outlined last night didn’t quite jibe with the wonderful speech, and, as all too common of late, [b] the president far too readily threw his left flank — the very people who sweat blood and tears to get him elected — under the bus.

To take the second part first, Obama early on indulged in an irritating and textbook case of Beltway false equivalence by setting himself up as the sensible middle between those cuh-rrrrazy single-payer types on the left and the free market fundies on the right. (“There are those on the left who believe that the only way to fix the system is through a single-payer system like Canada’s…“) Uh, yes, and not so long ago, Mr. President, you were among them. I feel like I’ve said this several times recently, but painting the left as dingbats to shore up one’s centrist bona fides is a pretty tired parlor trick at this point, and it never gets any less insulting.

As an aside, on the way into work yesterday, I — and everyone else around the Metro — was accosted by guys in Grim Reaper costumes and bullhorns, telling us all, basically, that violence will erupt and we will all die if this health care bill passes. Y’know, there’s a term for telling people they’ll be killed if a political event happens — We call it terrorism. (As it turns out, there’s a term for wearing a hood while telling people they’ll be killed too.) Well, imagine my surprise to hear — from the president I’ve vocally supported for two years now — that me and my fellow clowns on the left are just as part of the health care problem as these jokers are on the right. I have to admit, it kinda tempers the enthusiasm.

And then there was the discussion of the public option. Yes, the President did make a case for the public option in last night’s remarks: “[A]n additional step we can take to keep insurance companies honest is by making a not-for-profit public option available in the insurance exchange…It would also keep pressure on private insurers to keep their policies affordable and treat their customers better.” In addition, the President correctly pointed out, “It’s worth noting that a strong majority of Americans still favor a public insurance option of the sort I’ve proposed tonight.“

But what the President giveth, the President also taketh away. The public option was clearly brought up in the speech after the non-negotiable section. (“While there remain some significant details to be ironed out, I believe a broad consensus exists for the aspects of the plan I just outlined.“)

Indeed, in case we missed the point, President Obama later made it clear: “To my progressive friends, I would remind you that…[t]he public option is only a means to [an] end – and we should remain open to other ideas that accomplish our ultimate goal.“

He then went on to float two “compromise” ideas that, for all intent and purposes, are public option killers: (1) a trigger and (2) co-ops. (“For example, some have suggested that that the public option go into effect only in those markets where insurance companies are not providing affordable policies. Others propose a co-op or another non-profit entity to administer the plan.“)

The trigger notion — the idea that if the insurance companies don’t fix the problem themselves, a public option would then be “triggered” into existence — is in effect, as one progressive well put it, a threat made with an unloaded gun. It’s kabuki theater, pure and simple, because everyone knows that Congress never pulls the trigger in question. (See also the cost of prescription drugs in Medicare Part D.) As Slate‘s Tim Noah recently ably pointed out, triggers are used all the time as “compromise” fodder, and what they really mean is we’re going to pretend to have addressed the problem and let things go on as they have. And, really, how much worse would insurance companies have to fail before this trigger kicked in? We’re talking about health care reform right now because the system is already broken.

As for co-ops, there’s a good reason they are the compromise that the insurance industry tends to favor. Most likely, they’ll be too small, weak, and scattered to bring real competition to the market.

So, granted, we don’t have a final bill yet, and there are many strong advocates of a public option in the House who will continue to fight for it. But, if the public option is as expendable to the administration as it seemed last night, then we may have some problems.

To wit, if a health care reform bill passes that has an individual mandate (i.e. everyone has to buy insurance), limited subsidies (to keep costs down), and no public option, than what’s basically happening is this: People are being forced to buy insurance they likely still can’t afford from the very private companies that are making vast amounts of coin from the current, broken system. If this sounds like a huge boon for private insurance companies, it is. (One might even start to think they had a hand in writing the legislation.) Yes, a larger risk pool should make health insurance cheaper — but without a public option keeping rates honest, what guarantee do we have that these savings would be passed on to the consumer?

Along those lines, President Obama also made the case last night for a tax on premium plans to help pay for reform. (“This reform will charge insurance companies a fee for their most expensive policies, which will encourage them to provide greater value for the money – an idea which has the support of Democratic and Republican experts.“) But, again, without a robust public option holding the private industry’s feet to the fire, what will stop said insurance companies from just passing these costs down the line, in the form of higher premiums across the board?

(I’ll confess to being confused about this element of the plan anyway. The article I just linked on this premium plan tax says: “The hope is that employers would buy cheaper, less generous coverage for employees, thereby reducing the overuse of medical services.” Uh…cheaper, less generous coverage for employees? That’s a good thing? And I’m by no means an expert on these matters — far from it — but is “the overuse of medical services” really the main problem afflicting our health care system? It sounds a bit to me like “too many notes.”)

All of which is to say that I really hope the substance of the final plan matches the beauty of last night’s rhetoric. Now, I understand the counter-arguments: As Paul Begala recently reminded us, the Social Security Act of 1935 had serious problems too, and look how that turned out. The great is the enemy of the good. Politics is the art of the possible, etc. etc.

I don’t disagree with any of that. But I also believe that leadership is the art of expanding the horizons of the possible. (Cue RFK: “Some men see things as they are and say why. I dream things that never were and say why not.“) We always knew that the President is a master of oratory, and that he would move us all with his eloquence when the time came. But, in setting their sights so low on this bill, the administration, in my view, have come close to squandering both the historical moment and the president’s once-in-a-generation gift.

A historical puzzle lingers over the entire health care reform enterprise at the moment: How is it, with a Democratic House, a filibuster-proof Democratic Senate, and a Democratic president, that the proposal for health care reform on the table basically remains to the right of Richard Nixon? (See also: The Family Assistance Plan.)

Well, the short answer, imho, is lack of meaningful campaign finance and lobbying restrictions. (A key problem that’s about to get a whole lot worse.) But I would also argue in favor of another cause. For decades now, Democrats have tried to find that safe happy moderate middle, while Republicans — flaks, representatives and presidents alike — have willfully and consistently pushed that center to the right. The president’s address, however magnificent and even moving at times, felt like another step in the same old vicious cycle. And at this crucial historical moment, I strongly believe it would be a better demonstration of “our American character” if we Dems — and this administration — showed the courage of our convictions in words and deed.

Republic for Sale.

“If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.” With Justice Sotomayor aboard, the Supreme Court holds a special session today to re-hear arguments in Citizens United v. F.E.C.

And, as Slate‘s Richard Hasen explains, the projected outcome does not look good for McCain-Feingold or advocates of campaign finance reform. “If Roberts or Alito were ready to go the narrow route again in Citizens United, however, there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing…Expect the floodgates to open, and the money to flow freely, as early as next year.“

Inside Men at the FEC.

“That’s happened with increasing frequency at the FEC lately. Election-law experts, supporters of campaign-finance regulations, and even some members of the commission itself are expressing growing concern about a string of cases in which the three Republicans on the commission — led by Tom DeLay’s former ethics lawyer — have voted as a block against enforcement, preventing the commission from carrying out its basic regulatory function.” Pete Martin and Zachary Roth of TPM Muckraker delve into how Republicans antithetical to campaign finance reform have effectively sabotaged the FEC. “The FEC, he said, has been made ‘ineffective’ — and not by accident. ‘This is what McConnell had in mind.’“

“Of course, the one person who could do the most to get the commission back on track is President Obama…Most experts believe that the White House supports stronger campaign-finance laws as a goal, but, with a host of other issues on its plate, is reluctant to pick a fight with the GOP Senate leader. ‘They’re picking their priorities, and they don’t want to take on Mitch McConnell right now,’ said Hasen. ‘I consider that unfortunate.‘” Anyone else sensing a pattern?

You need us in that trough.

“The Republican Party’s suit was clearly prompted by its troubles in the 2008 election, in which Mr. Obama proved far more adept at fund-raising than John McCain. It is disturbing that the R.N.C. sees its salvation in clearing the way for corporations and other special interests to flood its campaign coffers once again.”

I missed this when it first went down, but the NYT just apprised me of it: On the verge of electoral oblivion — the retirements of Sens. Martinez, Brownback, Bond and Voinovich don’t help — the Republicans have filed two lawsuits aimed at overturning McCain-Feingold, apparently in the hope that they could then feasibly prostitute themselves back into power. (Feingold’s response.)

“In 2003, in McConnell v. F.E.C., the justices upheld the precise provisions the Republicans are now challenging…The McConnell decision should end the matter. But the R.N.C. seems to be hoping that because of changes in the court — in particular, Justice Sandra Day O’Connor’s replacement by Samuel Alito — it can persuade the court to undo this recent and important precedent.” Hmm. I’ve got a bad feeling about this.