Thursday, February 16, 2012

Two big threats to democracy: "Citizen's United" money and voter-suppression laws

Elizabeth Drew is a solid Establishment reporter, meaning she doesn't normally stray far outside the confines of Beltway Village conventional wisdom. But within those (not inconsiderable) constraints, she does some good reporting and her analysis leans toward the liberal side.

She looks at the real problems for democracy presented by the flood of one-percenter campaign spending allowed by the Citizens United decision, along with the 1976 Buckley decision, and by the Republicans segregationist voter-suppression efforts in In Can We Have a Democratic Election? New York Review of Books 01/24/2012.

She describes both problems well. She also notes on a point raised by defenders of the Citizens United decision, "Though unions will play a part in campaign financing, they simply don’t have the resources that thousands of corporations have." She does express traditional liberal skittishness about the idea of a Constitution Amendment to overturn Citizen's United and/or Buckley. She puts it this way:

The most popular and most wrongheaded proposal is to amend the First Amendment to allow restrictions on spending in favor of or against a specific candidate. At least a dozen versions of this proposal are floating about, some offered by groups active in political reform such as Common Cause and Public Citizen, and also by individuals—all of whom should know better than to go down this quite dangerous road. The fatal flaw in all such suggestions is the assumption that the forces of good will remain in control of any tinkering with the First Amendment.

To submit the Constitution to the political process is to put it in danger of being opened up to the popular movements of the moment. Serious students of both campaign finance reform and the Constitution whom I have talked to are very troubled by this approach. A respected member of this group, speaking without attribution because he wishes to make no enemies in a tight-knit but competitive world, calls the effort to overturn Citizens United by changing the First Amendment “a fool’s errand.” He and a number of others point out that the idea of fixing the First Amendment in order to ban corporate funds, as several of these proposals aim to do, is altogether likely to lead to those funds being put into another form of contribution and still finding their way into the campaigns.

And it sets a very bad precedent. The Founders in Philadelphia wisely made it difficult to change this core document, by requiring the vote of two thirds of both the Senate and the House and ratification by three fourths of the states. They sought to protect the Constitution from being subject to shifts in popular opinion. Once the precedent is set, what is to keep countervailing forces from pressing for, say, a change in the First Amendment that would remove what remains of the constitutional wall between church and state?
This argument doesn't move me much. The last part of her pitch hardly makes any sense. The Constitution has been amended numerous times, so "the precedent" is already set. If the Christianists could have their preference, they would amend it again in numerous ways right now. The antiabortion movement has been pushing a Constitutional Amendment to achieve the banning of abortion for a long time.

I suppose it could be considered technically true that it would "amend the First Amendment", since the Court has based their opposition to campaign finance laws at least partially on the First Amendment. Both Citizens United and Buckley had dissenting votes from some Justices; there are good arguments to be made for the view that those decisions wrongly interpreted the First Amendment. Citizens United was based on the extremely dubious concept of the personhood of corporations, so a Constitutional Amendment eliminated that notion would overturn Citizens United without, I assume, touching the First Amendment in the sense Drew means.

As a practical matter, a campaign for a Constitutional Amendment to change the aspects of those rulings that are so destructive to the substance of democratic elections puts pressure on the courts and Congress to address the problems in other ways.

Drew brings up an important point that has been obscured by a few years time and by President Obama's disastrous and irresponsible decision to Look Forward Not Backward and not even try to prosecute what were almost certainly criminal attempts to misuse prosecutorial power during the Cheney-Bush Administration:

Defenders of these [voter-suppression] laws argue that they’re essential for preventing voter fraud—but in fact there hasn't been solid proof of such a problem. Voter fraud has been a Republican obsession, fantastical or not. Officials of the George W. Bush administration insisted that it was widespread, and in 2007 the Bush White House ordered the Justice Department to fire seven US attorneys—Bush appointees all—several on grounds of failing to pursue charges of voter fraud.

Some of the fired US attorneys said that they had seen no serious evidence of such a crime. There are rules against launching investigations of voting groups close to an election lest it amount to voter intimidation. It was later found that the Bush administration had been calling for voter fraud prosecution in the parts of the country of the greatest importance to George W. Bush's reelection in 2004, and "voter fraud" was a useful talking point for Karl Rove and others. The Justice Department inspector general later said that the firings of the US attorneys were "fundamentally flawed” and “raised doubts about the integrity of Department prosecution decisions." Other ruses were employed to discourage voting (such as telling blacks the wrong day of an election).
Look Forward Not Backward has meant in practice that these misdeeds by the Cheney-Bush Justice Department are fading out of much of the public memory rather than being thoroughly and professional investigated, as they should have been.

And that virtually guarantees that the next Republican Administration will repeat them and more.

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