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Does the Supreme Court Know that "Citizens United" Was a Mistake?

by Eric Byler

On the night before the first #FlipCitizensUnited Rally, I was on the The Big Picture with ThomHartmann. I previously shared the notes I had written an hour before the show. While waiting in the green room, and, based on the incredible segment about Super-PACS that opened the show, I narrowed my focus down to the 5 points below.  Video is now available, (see above).  Watch and see how many of them I covered. (Hint: it's hard to make 5 points in 4 minutes...)

1. Tomorrow at 12 noon, we are trying an experiment – a flash rally in front of the US Supreme Court to kick off a new coalition campaign raise public awareness to the fact that Citizens United is back in front of the Supreme Court for reconsideration, now that we have had the kind of experience with which you opened the show.

2. A tiny fraction of our society, a few hundred families, are in the process of purchasing our democracy, and they don’t plan to give it up once they own it. We are in a power struggle right now.  People or donors?  Who controls political outcome and thus the policies that impact our lives?

3. Our disgust — the conversation we’re already having about the deeply compromised GOP primary — is proof of the perception of corruption that Justice Kennedy implicitly said he feared in his majority opinion when "Citizens United" was decreed. Our job is to make the connection between this and "Citizens United."

4. We are currently at the crossroads between the 20th century, top-down information model, and the emerging 21st century social media model.  We the People are at a disadvantage in the 20th century model, because when political discourse is defined by a relationship between big microphones and little consumers, the outcome is going to be warped and bent toward the interests of those who can afford to buy the big microphones — political advertisements, news channels, or political advertisements disguised as news channels. No matter how many truth-seekers there are like you, who manage to obtain a comparable microphone, the 1 percent can always buy more microphones.

5. The immediate task before us is use our hundred million microphones to shift the national conversation to focus on the root, not the symptoms, of the systemic corruption that produced the Great Recession, our unfair tax code, and this Super-PAC Republican primary.  

photo by Alex Wong was taken Feb. 23, 2012 at the US Supreme Court Building in Washington DC.



Morning of Rally (2/23/12)

Three Words Give Us Hope

by Eric Byler

New York Times columnist Linda Greenhouse recently produced the clearest writing yet about the historical precedents and legal implications of the provocative statement last Friday by Justices Ruth Bader Ginsburg and Stephen G. Breyer that seem to ask the nation whether or not the "Citizens United" decision should hold sway.

Greenhouse writes, "Justices Ginsburg and Breyer are savvy players, and their statement, gratuitous as a legal matter, has to be taken as strategic. So what was the strategy? To keep the public conversation going? To encourage a broader pushback? To induce Justice Kennedy to re-examine his basic assumptions in light of what’s happened since the day in January 2010 when Citizens United burst upon the political landscape? All of the above?"

The three words that give me the most hope are not in the Ginsburg/Breyer statement, but in the majority decision for Citizens United, penned by Justice Anthony Kennedy.  He wrote that the Citizens United decision would "not give rise to corruption or the appearance of corruption."

Or.  Appearance.  Of.  The emphasis above is obviously mine, but those words are important because, while conservatives on the Court and elsewhere have a very high bar when it comes to outright quid pro quo corruption, We the People have something to say public perception.  After all, public perception belongs to us. What we need to do now is speak out about whether or not the policies that our government produces make sense or not, and whether or not we perceive that the failure of these policies (the Great Recession, the Wall Street Bailout, our unfair tax code and the deficits and the debt it has produced) has anything to do with corruption.  

Perhaps even more importantly, Justice Kennedy wrote in the majority opinion that, “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”  I think that this loss of faith is apparent, not only in the way that Americans who DO pay attention to politics are talking about it today, but also in the low turn-out numbers in the GOP Super-Pac primary.

It is based on these two assumptions that the Supreme Court narrowly decided "Citizens United."  In both cases, We the People have a say.

The overwhelming majority of Americans are beginning to see the problem with a handful of wealthy families and multi-national corporations having so much influence over our electoral process. We have to figure out how to (1) help the public see the relationship between the appearance of corruption they are increasingly denouncing and the “Citizens United” case, and (2) help Justice Kennedy and his four concurring Justices see that the “appearance of corruption” is real, and, rapidly growing.

Perhaps Justice Kennedy and the four Justices in the majority predicted the decisive influence political spending by wealthy families and multi-national corporations would have in the 2010 mid-terms. Perhaps they even predicted the cast of billionaires who would become as much a part of the 2012 GOP nomination process as the candidates on which they are placing their million dollar bets. What they might not have predicted is the shifting public opinion, and shifting national conversation about our democratic process — not only our elections, but more importantly, the warped and ineffective policy that results from elections that are so heavily influenced by “the 1 percent.” Increasingly, Americans have stopped looking at candidates or policy based on whether a person with an R or a D recommended it, we are judging them based on whether they are in the interest of our nation as a whole (the 99 percent).

The two assumptions upon on which the "Citizens United" decision was made are both assumptions about We the People, and how we would see things.  Let's all take it upon ourselves to find creative ways to let these five Justices know how we feel about, not only the decision, but its impact on the People's "faith in our democracy."  Maybe, just maybe, we can help them make a better decision this time around.  


5 Days Before of Rally (2/18/12)


Supreme Court May Reconsider "Citizens United" 


by Eric Byler

Could it be that the Montana Supreme Court has given the United States Supreme Court the opportunity to reconsider the "Citizens United" decision?  A Montana decision on Dec. 30, 2011 defied the highest court in the land by upholding Montana's ban on corporate spending in state elections, prompting Friday's very interesting response from Washington DC.  

John C. Bonifaz, Director of Free Speech For People explains:

In an unusual statement, US Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer have called for a reconsideration of the Court’s January 2010 Citizens United ruling. The Supreme Court this evening issued a stay of the Montana Supreme Court's December 30, 2011 ruling which had upheld the state's century-old law banning corporate money in elections. The US Supreme Court's stay order means that, for the first time in 100 years, corporations may make unlimited expenditures in the state's elections. But, Justice Ginsburg, joined by Justice Breyer, issued a concurring statement making clear that this case is “an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway.”

The Court is likely to accept review of the Montana case.  The main question now is whether it will issue a reversal of the state supreme court ruling without a full argument on the merits or whether it will allow that full argument.  Either way, this will push even further to the forefront the impact of the Citizens United ruling on our democracy.

Jeff Clements, author of Corporations Are Not People, writes: 

The Montana Supreme Court had cited the state’s demonstration of corruption caused by corporate spending in elections, and the effect of Montana law in preventing that corruption, as a reason to distinguish the state’s law from the federal Bipartisan Campaign Reform Act struck down in Citizens United.


In taking the action based on its decision in Citizens United v. FEC, the Supreme Court did not examine the substantial factual record in the Montana case or give the State a hearing. Nevertheless, the Court will decide whether to allow a petition for certiorari and may consider the case further.
Ginsburg and Breyer's statement references a claim made by Justice Anthony Kennedy in the majority opinion for the "Citizens United" case, speculating that the impact of unlimited and undisclosed election spending by corporations and other special interests would not create the appearance of corruption. Ginsburg writes: 

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U.S.  __ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at __ (slip op., at 42. A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

According to the customary "Rule of Four," it would require two more Justices on the Supreme Court to grant a writ of certiorari to hear oral arguments on the constitutionality of Montana's law.  

American Tradition Partnership (ATP), formerly known as Western Tradition Partnership, is a 501(c)4 lobbying organization that fights against environmental regulation and laws that oversee corporate spending to influence elections.  To that end, ATP filed suit to challenge a Montana law passed in 1912 called Corrupt Practices Act, after the "Citizens United" decree.  

Montana's Attorney General, Steve Bullock, defended the state of Montana's century-old law before the Montana Supreme Court, arguing that political corruption made the Corrupt Practices Act necessary in 1912, that the law had been successful in protecting Montana's democratic process from corruption for 100 years, and that the possibility of corruption requires its continuation despite of the Supreme Court's decree. The Montana Supreme Court ruled in the state's favor on Dec. 30, 2011.

ATP then asked the US Supreme Court for three things: (1) a stay on the Corrupt Practices Act, (2) a review of the Montana Court's decision, and (3) a summary reversal.  The Supreme Court's reply on Feb. 17, 2012 granted the stay, which means that the Corrupt Practices Act is no longer being enforced as Montana approaches its June 16 primary election.  ATP would have preferred that the Supreme Court quietly grant the summary reversal without hearing oral arguments which could attract the attention of the public.  But the Court's response implies that this request may not be granted.  

Due to Ginsburg and Breyer's striking statement, the public scrutiny ATP had hoped to avoid may be inevitable. The issue plays into a dominant narrative of the 2012 GOP primary race, which has been flooded by Super-PAC money, drawing complaints from across the political spectrum. Less than 24 hours after the statement, there is already talk of a rally at the US Supreme Court to allow the People to weigh in on whether or not anonymous and unlimited campaign donations creates the appearance of corruption (sign up for details).  The Court may decide to hear the Montana case as a way of revisiting "Citizens United" with new information to consider.

Update 1 — Feb. 18, 2012: ​Bonifaz explains:

American Tradition Partnership (ATP), the corporation challenging the Montana law, has until March 29 to file its petition for review before the Supreme Court. It may decide to file it much earlier than that. Under the normal rules, the State of Montana will then have 30 days to file its response, and ATP will then have 10 days to file its reply. However, the Court could possibly order the response and reply briefs on an expedited schedule. 

It is very likely the Court will accept review of this case, given the claim that the Montana Supreme Court ruling defies the US Supreme Court's Citizens United decision. The main question is whether the Court will reverse the Montana ruling without allowing full argument on the merits. If it does that, we could see a decision very soon after the briefing on the petition for review has been submitted. If it allows for full argument, there will be merits briefing and then oral argument. That oral argument could happen this spring or it could be scheduled for the fall (the start of the next term for the Court).

Josh Silver, CEO of the new movement focused on money in politics United Republic, wrote for The Huffington Post: ‎"The implications of this are huge, as it paves the way for a potential re-opening of the disastrous Citizens United decision that has spawned billionaire-sponsored super PACs. And if that happens, Chief Justice John Roberts better buckle up for a grassroots mobilization unlike any the court has seen in years." 

Update 2 — Feb. 19, 2012:  Free Speech for People called for a rally on Saturday and Coffee Party USA and Common Cause have jumped on board already to plan a Flash Rally called "The Court of Public Opinion" on Thursday Feb. 23 at 12 noon at the US Supreme Court.  More organizations are joining by the hour. Hear the plan take shape in this excerpt from Coffee Party Radio from Sunday Feb. 20:

Last fall, Steve Bullock announced his candidacy to succeed Brian Schweitzer as Montana's governor.

Read the Supreme Court's Feb. 17, 2012 order.

See the rally that marked the 2nd anniversary of "Citizens United" last month:





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