Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.
Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:
[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.
Sheldon Whitehouse of Rhode Island took on the Court’s pro-corporate leanings by brilliantly co-opting Chief Justice Roberts’ famous baseball metaphor:
Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control.
There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.
Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”
The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.
What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.
Al Franken of Minnesota explained the real impact of campaign finance laws:
Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.
So of course I’m worried about how Citizens United is going to change our elections.
But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.
Citizens United isn’t just about election law. It isn’t just about campaign finance.
It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.
As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.
And finally, Sen. Richard Durbin of Illinois summed up the retort to any GOP Senator complaining about “judicial activism”:
We've heard from those across the aisle about their support for traditionalism, and their opposition to judicial activism. I have two words for them: Citizens United.
We’re looking forward to hearing a lot more about Citizens United and the Corporate Court as the hearings progress