Congress Shall Make No Law

By Mark David Blum, Esq.

The sky is not falling and we are not about to become the United Corporation States of America. Listening to the rhetoric spewed forth in response to the Supreme Court’s decision in Citizens United v. FEC, the televangelists from MSNBC, Democrats nationwide, and even Syracuse’s own radio host Jim Reith, have all proclaimed the end of the Republic. So much of the Supreme Court’s decision has been twisted and misrepresented, that Americans are being told to take shelter, stock up on food, and prepare for the penultimate disaster that lurks behind the next election.

Nothing is more important to this nation than its underlying fundamental principles. First among them is the right to free speech. Even moreso is the fundamental right to unfettered political speech. If you think about it, the loss of the right to express yourself on matters of public concern would render all your other rights moot. We have long recognized that whether it is a soapbox in the public square, the internet, or television commercials, the right to speak and express oneself on political issues has to be protected at all costs. If you cannot tell the world your President is an abject failure, your Senator is a PAC bought whore, or your Congressperson is disloyal to their constituency, then your connection to your roots as an American are gone.

For the record, such politically opposite entities as the ACLU and the National Rifle Association stood together in favor of finding a violation of the First Amendment. The facts behind Citizens United are simple enough. Senators Russ Feingold and John McCain spearheaded legislation that gagged corporations from contributing to political campaigns. Instead, if a corporation wanted to get a message out there, they had to form a Political Action Committee (PAC) and have that Committee fund its message to the public. There were criminal sanctions put in place for violations of this law. Said another way, it was a crime for a corporation to express a political posture.

At present, there are more than 2,000 such PACs in place. Any examination of PAC operations show that, for example, Senator Charles Schumer from New York is the largest recipient of PAC funding from Real Estate, Securities and Investment, and Insurance lobbies. We saw the operation of PACs in New York’s recently held special election for the 23rd Congressional District between Bill Owens, Dede Scozzafava, and Doug Hoffman. Conservative PAC money drove the Republican out of the race and swamped the airwaves with constant commercials.

A corporation is just a legal organism created to enable folks to work together for a common goal. It provides protection for its employees and pays out dividends for its shareholders. At its core, however, a corporation, like a Union or other organization is just a collaboration of individuals. Long ago, the law of the United States recognized corporations as being “persons” for legal purposes and though this designation befuddles my own mind, I see the corporation as being but a paper shell enveloping its individual actors.

Of interesting note, the McCain Feingold legislation specifically excluded media corporations. Those organizations like MSNBC or the unfair and imbalanced Fox News were not subject to the same limitations as other corporations. For them to now cry “wolf” seems a tad disingenuous.

The Supreme Court took a hard look at the McCain Feingold limitations and found them to violate the First Amendment’s right to free speech. It was held that a corporation has just as much a right to freedom to express its political beliefs as any other individual in the United States. This is the end of days scenario now being eschewed throughout the media world. It is now being argued that corporations are going to own the discussion and drown out you and me from the political debate.

At the same time, the Supreme Court took a hard look at its own precedent set over the years. It found that there were two inconsistent lines of reasoning used to resolve the political question raised. Starting at the basic premise that Acts of Congress are to be given great deference, the Court struggled with having to overturn a legislative act. After all, does not Congress reflect the will of the People? The Court did not so much overturn sixty years of precedent as it settled conflicting rulings and a method of analysis that was too difficult to apply and which required application in a case by case basis.

The Chicken Littles of the media foretell a world where legislators, ranging from President of the United States to President of the local School Board no longer are servants of their electorate but will be slaves to the corporations that bought their jobs. Keith Olberman speaks of Senators from Microsoft and the Chubb Group picking our next Supreme Court justice. This argument fails for three reasons. First and foremost, there is already huge sums of money being spent in the electoral process by special interest groups. Second, any quid pro quo by a legislator for a donation is a crime and should remain so. Third, corporate decision making is supposed to be in the best interests of shareholders and always subject to the mood of shareholders.

Billy Fuccillo style “huge” donations are already poured into elections. Hundreds of millions of dollars come from PACs, lobbyists, and political parties. We, the humbled and dirty masses are limited in what we can give. Under current federal election law, we can make maximum contributions of $2,400 to candidates, $5,000 to political action committees or $30,400 to national party committees. At the same time, there is no limit to the amount of money we can contribute to what are called “527’s” – PACs. The only limitation on a PAC is that it cannot advocate for or against a candidate, just an issue. McCain Feingold did nothing to stop the millions of dollars being poured into PACs with innocuous names and invisible management.

If we accept the premise being raised by those who oppose the Supreme Court’s decision; namely, that corporations will now pour hundreds of millions of dollars into campaigns effectively drowning out the voice of the individual citizen, then we have to look at the current situation. Right now, the Health Care PACs can and do spend more money in a single donation to a single issue that the collective dollars of millions of individual people. Ask Senator Schumer, one of the biggest pigs at the trough. Now that the Supreme Court has lifted the veil, corporations may still be able to fund multi million dollar campaign contributions but at least now they will have to do so by identifying themselves. At least we as consumers and the ultimate funders of these corporations will know which corporations deserve our money and which are working against our best interests.

Count me as being among those out front arguing that our current electoral process is in serious need of an overhaul. There is indeed too much money coming from too few sources that appears to have control and sway over legislative decision making. McCain Feingold was a Congressional knee jerk reaction that did not accomplish its stated goals. Instead of corporations, we got PACs. People are always going to find ways around the law if their goal is to influence politicians. Though it remains a crime, I think called “bribery”, I too believe that many of our elected class are subservient and do the bidding of their contributors. Change must come through a major paradigm shift. There has to be a way to hold an election and get a message out without the investment of hundreds of millions of dollars. Perhaps we can force the media to not charge for political advertisements and to run “equal time” messages. The Supreme Court has mostly shut down Congress’ ability to silence the big money donors.

What is fundamentally wrong and which was recognized by the Supreme Court is that the way to try and get a handle on the money in elections is not through the silencing of political discussion. If the Coca Cola corporation wants to take a stand against a tax on soda products, they should have that right. Things might just go better with Coke. If I agree with their message and it persuades me to vote for or against a candidate, then that is my right. It seems foolish to gag Coca Cola, force them to form a PAC, and limit their discussion to the soda tax. New York’s governor Patterson wants to tax soda right now. I very much want to know which of my options for State Senate and Assembly are against this plan.

We are not going to be inundated by any more advertising than currently exists during an election season. What will be different is knowing who is behind the marketing instead of some vague and ill defined PAC. It would be a wonderful world if Senator Schumer would take a personal interest in my own health care crisis instead of pandering to the whims and wishes of the Health Care lobby. The Supreme Court’s decision does not change that landscape. The pathways to power are still lined with dollars. At least I know that my fundamental right to be heard on the issue is still alive and well and not subject to legislative limitation or criminal sanction. Now if I could only find a way to make my Senator listen.

Back to the MarkBlum Report

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