Can Democracy and the First Amendment Co-exist?
July 1, 2012 § 6 Comments
I recently expressed my fear that major parts of our political system were being bought with corporate money. [See The American Monopoly Game]. I speculated that a good argument could be made that large corporate contributions to campaigns of political office holders amounted to bribery and, hence, could be legally prohibited.
Last week the Supreme Court rejected that argument. The State of Montana sued to preserve its limits on political contributions. They offered uncontroverted proof that those limits were enacted in response to a mining company’s brazen offer to buy state legislative offices for $10,000 each, an offer that was accepted by a sufficient number of legislators to enable the purchaser to buy a seat in the United States Senate. (These events occurred when US Senators were elected by state legislatures.) The senate refused to seat the purchaser, but Montana’s voters were so disgusted with his effort that they forced, by referendum, the adoption of limits on the amount of political money that could be contributed to a political campaign. Those limits remained on the books until they were held unconstitutional last week, based on the Citizens United decision.
In other words, my proposed argument was made in an ideal set of circumstances and the Supremes were unimpressed. They continue to cling to their professed naive belief that political office holders will not be unduly influenced by money.
This morning I got another jolt when I watched Up With Chris Hayes and learned that the ACLU and some labor unions filed briefs in support of the court’s majority ruling in Citizens United. Glenn Greenwald, a writer for Salon and a First Amendment lawyer was on Hayes’ panel. He stoutly defended the court’s ruling and argued that it merely confirmed what First Amendment advocates had successfully argued in cases filed on behalf of the NAACP in the 50’s and 60’s.
Greenwald said that if corporations were not deemed to have the same rights as humans, the government could censor the New York Times and the various TV and radio networks, all of whom are owned by corporations.
Our legal system is based on the principle of stare decisis, which means that the law will not be interpreted differently for different litigants. The law for one is the law for all. So, the “good” First Amendment law made for accused communists and the NAACP, now protects the corporations who are buying our political system.
As I’ve let this sink in, I’ve also realized that this argument also applies to our hope that forcing full disclosure of the contributors to the PAC’s that threaten our democracy might weaken their strength because we could then match their contributions with their nefarious motives and, perhaps, discredit them and the politicians who accepted their money.
The problem with this possibility is that this exact motive prompted bigots to demand membership rolls from the NAACP in the 50’s and 60’s. Houston’s own Christia V. Adair, a civil rights activist and suffragist, once engaged in an epic battle with the City of Houston and its police force rather than give up the local NAACP membership roll to them. The U.S. Supreme Court, in a five-or-six-year-long battle between the State of Alabama and the NAACP, ruled that the First Amendment protected the right of the NAACP to keep private its membership rolls in order to protect its members and supporters from being harassed and threatened.
This is the law that now protects Carl Rove’s outfit from disclosing its contributors.
So, is there anything we can do other than watch while democracy is replaced by plutocracy in America?
Probably not as long as the present Supreme Court majority sits. Even a constitutional amendment would be hard to draft so that it protected interests like the NAACP and theNew York Times, while stripping protection from Chevron and corporations owned by the Koch brothers.
I do see one little ray of hope, although it is a flickering one. When the Court decided the Alabama case, they distinguished an previous case involving the KKK. New York law required the Klan to file a sworn copy of its constitution and membership roll with a state agency. The KKK refused. The Supreme Court held that they had to obey the law because their organization was known to have a lawless past record and the State of New York had good reason for wanting to keep track of its activities. In the Alabama case, by contrast, the State of Alabama had no such evidence of potential harm to justify its demand for the NAACP’s membership rolls.
I can imagine a decision that would justify full disclosure of Rove’s organization on the ground that the political process works only if there is accountability, and accountability is impossible without knowing the identity of the source of political speech and expression. The voters are like a jury listening to witness testimony. They are entitled to know enough to judge the bias of the witness. That should convince the Court that political contributors and those who try to influence political decisions should take off their masks and let the voters know who they are listening to.
Having said all this, I am more discouraged today than I was yesterday because this morning I heard the pro-civil rights case for Citizens United. Once more, it turns out that the issue is more complicated than it appeared.