Jewish World Review Feb. 28, 2013/ 1 8 Adar, 5773
Still obsessed with Citizens United
By Jeff Jacoby
Time magazine grimly predicted that American democracy would never be the same: "Now ExxonMobil or Walmart can simply go into the district of a member of Congress who is giving them a hard time and spend as much money as it wants to defeat him." President Obama pronounced Citizens United "more devastating to the public interest" than anything he could think of. If Democrats in Congress failed to overturn the ruling, Senator Charles Schumer warned, "we will have let the Supreme Court predetermine the outcome of next November's elections." Liberals compared the case to one ugly archetype after another: "Watergate." "Plessy v. Ferguson." "Dred Scott."
Yet for all the hyperventilating, Citizens United "turned out to be a big fizzle," as the left-wing journal Mother Jones put it in a headline last November. It didn't prevent Obama from claiming a second term. It didn't cost Democrats control of the Senate. And it didn't spell triumph for Karl Rove, the GOP superstrategist Democrats love to hate. Rove's organizations spent more than $175 million on behalf of 30 Republican candidates, but when the smoke lifted on Election Night, 21 of the 30 had lost.
Restoring the right of corporations (and unions) to engage in political speech did indeed clear the way for a freshet of campaign spending by independent groups. Yet all those additional dollars, a Washington Post analysis concluded, "had no discernible effect on the outcome of most races." Nor did they keep Democrats from winning some of their top legislative priorities, including the passage of ObamaCare and a significant tax hike.
Plainly, Citizens United has not destroyed American democracy. Voters haven't lost the ability to think for themselves. Expanding free speech rights didn't "predetermine" the outcome of political contests. All it did was make them livelier, noisier, and more robust.
It's strange that liberal Democrats should still be so obsessed with Citizens United. Yet obsessed they are, as Rep. Ed Markey of Massachusetts confirmed last week, when he resurrected the Dred Scott comparison during a campaign speech in Pittsfield.
Markey told voters that he is running to replace John Kerry in the Senate "in order to fight for a constitutional amendment to repeal Citizens United…. The Dred Scott decision had to be repealed; we have to repeal Citizens United."
Critics pounced. The other Democrat running for Kerry's seat, US Rep. Stephen Lynch, rebuked Markey for likening a campaign-finance case to the infamous 1857 decision that "kept an entire race of people in bondage and perpetuated the horror of slavery."
But Lynch also supports a constitutional amendment to overturn Citizens United. He and Markey are both cosponsors of Representative Jim McGovern's radical "People's Rights Amendment," which would strip corporations of virtually every liberty protected by the Constitution, and explicitly restrict those protections to "natural persons" only.
As a strategy for curbing corporate influence in political campaigns, that is the equivalent of destroying the village in order to save it. Even progressive legal scholars warn that such an amendment would gut the Bill of Rights. It would mean that "a private university not a natural person could be required to start classes with a prayer," Boston College law professor Kent Greenfield has written. "The government could prohibit The Huffington Post not a natural person from printing columns critical of the president. The FBI could seize the servers owned by Google not a natural person without a warrant. Each of these would be a clear constitutional violation under current law, but would be permitted under the People's Rights Amendment."
Yes, to annul Dred Scott required new constitutional language, and to annul Citizens United would too. But the 13th and 14th Amendments broadened American liberty; the constitutional changes sought by Markey and Lynch would drastically restrict it. Dred Scott held that black Americans were excluded from the Constitution's protection. If Markey and Lynch got their way, all Americans would be similarly excluded whenever they united in corporate form.
The role of Big Money in politics is something reasonable people can debate, but there is nothing reasonable about eviscerating the First Amendment. Citizens United didn't wreck American democracy. The "remedy" some Democrats are proposing just might.
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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.
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