Today marks the one year anniversary of the Citizens United decision, the landmark ruling that upended nearly one hundred years of campaign finance law precedent and expanded corporate personhood rights to lengths beyond reason. In the election season that followed, we witnessed obscene amounts of direct corporate spending on Congressional races and watched as the our democracy became even more beholden to corporate interests.
Congress came close to remedying this reality with the DISCLOSE Act, but as was typical of the 111th Congress, Republicans filibustered the measure which would have forced corporations to disclose who they were sending money to and how much they were sending. That legislation is effectively dead for the time being, leaving open the possibility of even more unchecked spending as we approach the 2012 presidential race.
The decision did not just usher in a new era of corporate electoral spending, it also ushered in a new era of coziness between the Supreme Court and those financiers.
At least one group has decided to push back. On Wednesday, Common Cause filed a petition with the Department of Justice asking it to investigate potential conflicts of interests with Justices Antonin Scalia and Clarence Thomas due to their publicly close ties with billionaire Charles Koch, a major donor to conservative causes and the role of Justice Thomas’s wife Virginia in forming a conservative political group opposed to the Obama administration.
The petition argues that Justices Scalia and Thomas should disqualify themselves from hearing campaign finance cases due to these relationships as it at least creates an appearance of bias. This “appearance” is key as it is the standard by which the judicial cannon requires a judge recuse him or herself from hearing a matter. Despite that standard the Justices have, in recent years, they have been reluctant if not recalcitrant in removing themselves from cases.
Common Cause’s petition seeks to vacate the Citizens United decision and ultimately force a rehearing on the issue. Among the issues it wants the Justice Department to look at is whether or not the justices appeared before Mr. Koch’s conservative strategy group between 2008 and 2010, when the court was considering the Citizens United case, and whether they were reimbursed for their expenses. If the answer to those questions is yes, then Common Cause may have found a hook to force a rehearing.
Common Cause has a tough, but not impossible, task at hand. But this new strategy is a good step and a necessary change in strategy to address the damage done to both our electoral system and our faith in the judiciary as a result of Citizens United.
The necessary next step is to push back against the ongoing insistence by the business community that corporate personhood is anything other than a legal fiction. The Court is currently considering whether or not corporations have privacy interests under the 5th Amendment and can therefore avoid answering subpoenas and other investigative tools in some instances.
We are witnessing a perversion of the 14th Amendment and it must end. But for now, Common Cause is on the right path in calling attention to and forcing daylight on the coziness between certain members of the Court and the corporate conservative beneficiaries of their decisions.
photo courtesy of Tracy O via Flickr