Dollarocracy (18 page)

Roberts found his opening with a case involving a relatively obscure right-wing group known as Citizens United, which nurtured a scorching disdain for former president Bill Clinton and Senator Hillary Rodham Clinton—along with the United Nations, the American Civil Liberties Union, and filmmaker Michael Moore, to name but a few Citizens United “targets.” As Hillary Clinton prepared to bid for the 2008 Democratic presidential nomination, Citizens United produced a “documentary” titled
Hillary: The Movie
, which it sought to promote with Clinton-bashing television commercials. There was never any real doubt about what was going on. The commercials, which were aggressively anti-Clinton, were set to air on television stations in states that were key to her presidential candidacy. The U.S. District Court for the District of Columbia recognized as much, ruling in January 2008 that the commercials violated provisions of the McCain-Feingold Bipartisan Campaign Reform Act of 2002. Specifically, the court held that the supposedly nonpartisan commercials represented precisely the sort of “electioneering communications” that McCain-Feingold barred thirty days before primaries.
⁶¹

This was the opportunity Roberts had been looking for. The Supreme Court grabbed the case. But after the oral argument on March 24, 2009, proved to be too narrow in the view of the more activist of the justices, the High Court issued an order directing that the case be reargued on September 9 of that year. Justice John Paul Stevens, the senior member of the Court, recognized that something untoward was afoot. He noted that the Court could easily
have decided the case along the narrow grounds that both parties had argued it; instead, he would eventually charge, Roberts and his allies “changed the case to give themselves an opportunity to change the law.”
⁶²
Stevens's blunt assessment was correct. By January 2010, it was clear the Court was going to make a dramatic decision. And so it did, holding that legal prohibitions on independent expenditures by corporations, associations, and unions were, in any meaningful sense, invalid and could not be applied to spending of the sort that
Citizens United
had engaged in.
⁶³

Justice Anthony Kennedy, a Reagan appointee who replaced Lewis Powell, wrote the opinion for the five justices who formed the majority, arguing, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” But it was Chief Justice Roberts, obviously concerned about the judicial activism on display, who attempted to defend the ruling's rejection of a century of lawmaking and judicial rulings—of virtually all precedent, save that of Powell's rulings in the 1970s—on the grounds that “there is a difference between judicial restraint and judicial abdication.” Effectively, Roberts was claiming that there was an urgent need for the Court to go even further than the lawyers for Citizens United had initially argued—or imagined.
⁶⁴

Justice Stevens, who was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, not only wrote but also read aloud from the bench a ninety-page dissent. “At bottom,” argued the eighty-nine-year-old jurist,

           
the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
⁶⁵

Stevens, who had joined the court thirty-five years earlier as a Republican appointee, warned that the
Citizens United
ruling “threatens to undermine the integrity of elected institutions across the Nation.” He would be proven right with all the immediacy and force of the political moment
and
the media moment in which we live.

A flurry of initial speculation by media pundits—especially cynical conservatives who rather liked their prospects in the new political order, but even from some liberals who apparently needed to confirm that they really did not “get it”—advanced “much ado about nothing” defenses of the Court's majority's activism. They tried to foster the fantasy that corporations and unions were equally matched players on the field of political battle, that corporations didn't really want to spend money to achieve political ends, and that CEOs and their lawyers would be cautious about leaping into the political fray. “With last week's ruling, the justices granted corporations (and implicitly unions) a constitutional license to explicitly urge voters to support or oppose candidates in all communications, while interring the remains of the McCain-Feingold restrictions on ads,” mused Stephen Weissman in the
Los Angeles Times
. “Yet this decision is unlikely to change the political situation on the ground very much.”
⁶⁶

In fact, it would change things a lot. Before the year was done, the prominent political player who most passionately embraced the new politics of the
Citizens United
era, Karl Rove, was celebrating victories that were beyond the wildest imagination of Lewis Powell. Rove's Republicans had been badly beaten in the congressional races of 2006 and 2008, losing the Senate and House to the Democrats, but they stormed back, narrowing the Democratic majority in the Senate and retaking the House with a 63-seat gain—their biggest pick-up in seventy-two years.
⁶⁷
Rove's decision to take immediate advantage of the opening created by the
Citizens United
ruling paid off handsomely. Of 53 competitive House districts where Rove and his compatriots backed Republicans with “independent” expenditures that exceeded those made on behalf of Democrats—often by more than $1 million per district, according to Public Citizen—the Republicans won 51. Roughly three-quarters of all GOP House gains came in districts where independent expenditures by groups like the Chamber of Commerce and Rove's American Crossroads gave to Republican candidates, some of them virtual unknowns until the outside money flowed in, dramatic advantages. American Crossroads wasn't resting on its laurels, however, “It's a bigger prize in 2012, and that's changing the White House,” said Robert Duncan, a Rove lieutenant at American Crossroads. “We've planted the flag for permanence, and we believe we will play a major role for 2012.”
⁶⁸

John Roberts's Supreme Court was making sure of that.

Even as the term
“Citizens United”
came to be understood as the shorthand phrase for massive judicial intervention in the political process, the chief justice and his allies were still busy legislating from the bench. Very busy.

In the summer of 2012, the Court kicked the legs out from under the unions.

Traditionally, major corporations and major unions have both sought maximum flexibility when it comes to political spending. Much of the media has covered corporations and unions as equal players. That was never really the case. And it was even less so in 2012. Corporations, freed by the Court to spend as much as they chose from their treasuries on political campaigns, had much more money at their disposal than the unions.
⁶⁹
One investment house, Goldman Sachs, spends more annually to pay just its top employees than the combined available assets of the nation's major unions. Indeed, as RoseAnn DeMoro, the savvy executive director of the National Nurses United union, said, “Equating what unions and working people could spend on campaigns (as compared to corporations) would be like comparing a toy boat to an aircraft carrier. Corporate influence peddling in politics already distorts and prevents our democracy and political system [from functioning].”
⁷⁰

But the Roberts Court was not satisfied just to empower corporations. The majority was determined to make it a good deal harder for unions to work on political issues with the people they represent—especially nonmembers in organized workplaces—and to support candidates and mount campaigns.

In a barely noted June 2012 ruling in the case of
Knox v. Service Employees International Union (SEIU) Local 1000
, the High Court's hyperpartisan, hyperactivist majority—Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—moved to restrict the flexibility of unions in election fights. Unions that represent large numbers of workers often establish political structures so that they can move quickly to address unexpected electoral and public policy threats; these structures usually involve gaining advance permission from represented workers to act on their behalf. The ruling—in a California case where a public-sector local of the Service Employees had made a special dues assessment in order to fund a
fight to preserve collective bargaining rights
⁷¹
—took away much of that flexibility and imposed cumbersome new bureaucratic demands on organized labor groups seeking to raise their voices in the public sphere. Indeed, the ruling was so sweeping in its assault on the ability of unions to represent their members, so adventurous in its politics, that Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg), objected. She asserted, “I cannot agree with the majority's decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court's proper role in our system of separated powers.”
⁷²

Justice Sotomayor fretted about the Court creating a “new world of fee collection” that is ill defined and that will necessarily have an impact on all workers, members and nonmembers, represented by a union. She was right to worry. Justice Alito explicitly rejected definitions of political work by unions that is directly related to the protection of worker pay, benefits, and rights and to the maintenance of collective bargaining:

           
Public-employee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many states and their subdivisions. As a result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of “germaneness” were as broad as the SEIU advocates, public-sector employees who do not endorse the unions' goals would be essentially unprotected against being compelled to subsidize political and ideological activities to which they object.
⁷³

But aren't fights over salaries, pensions, and other benefits, as well as the ongoing ability of a union to fight on behalf of represented workers, germane to those workers—whether they are union members or not? The court said no. What would happen, however, if its standard were applied to the corporations that, with the
Citizens United
ruling and related decisions, the Court has done so much to empower politically? Corporations do not currently have to seek the approval of stockholders to direct money into political campaigns. Indeed, shareholders get far less communication from corporations about political activity than union members or represented nonmembers get from their unions. And, in most unions, workers have far more say about political choices
than do shareholders. So what if the Court were to say that shareholders had to affirmatively approve corporate expenditures on behalf of candidates, parties, or ballot measures?

Let's go a step further. Millions of Americans own pieces of corporations through pension plans, investment funds, and other vehicles that hold stock. Yet these Americans get no information from corporations about political activities. What if the Court were to require corporations to get affirmative approval from these owners? Or even from the managers of pension plans or funds? Corporate CEOs and their amen corner in the media would scream about the “bureaucratic nightmare” imposed on them by the Court, and their lawyers would portray it as an infringement of their free speech “rights.” Yet a court that had spent much of the previous decade removing barriers to corporate “speech” imposed just such a bureaucratic nightmare burden on unions.

“[This] Supreme Court says you cannot do anything to hamper the First Amendment rights of corporations,” argued AFL-CIO president Richard Trumka following the issuance of the
Knox
decision. “But when it comes to workers, they haven't seen a detriment to the First Amendment that they haven't liked yet.” Trumka had figured out how this game was going to be played.

The Roberts majority on the Supreme Court does not operate as a referee. The chief justice has a side in this fight, as do the justices who have aligned with him.

The U.S. Supreme Court may still retain some familiarity with the Constitution when it comes to deciding the nuances of cases involving immigration policy or lifetime incarceration or even health care financing. But when it comes to handing off control of American democracy to corporations, this is now Lewis Powell's Court. It can, and will, reject the intents of the founders and more than a century of case law to assure that CEOs have the upper hand in American politics.

Make no mistake: this is not a “free speech” or a “freedom of association” stance by the Court's Republican majority. Roberts and his colleagues are narrowing the range of debate. They are picking winners. The same Court that in January 2010 ruled with the
Citizens United
decision that corporations can spend freely in federal elections—enjoying the same avenues of expression as human beings—has been meticulous about extending the reach of that decision. It did so by restricting the ability of unions to try countering corporate
spending. And, even more ominously, it did so by barring states from even trying to level the political playing field. States like Montana.