Or maybe not. President Obama is facing an unprecedented juggernaut in his bid for reelection, a uniquely toxic coalescence of the Super-Rich, corporations, extremist conservatives, fundamentalist religious nuts, white supremacists, and, of course, the right wing media. The level of financial investment behind it is simultaneously unlimited and mysterious, thanks to the Citizens United decision. They will have millions of motivated small donors as well, in addition to having the Koch brothers, Karl Rove, Dick Armey, and the like. Unlimited corporate funding has simply overwhelmed the electoral process, forcing anyone who wants a chance to play along. If Obama had decided to follow his conscience and reject unlimited money, his campaign argues it would be no less than “unilateral disarmament.” And when you take even a passing glance at his likely opposition in the Fall, isn’t it clear that losing is not an option? Mittens will be sucking from his Restoring Our Future Super PAC without hesitation, Santorum from Red, White, and Blue, and Newt from Winning the Future . Plenty of metaphors have been used for the dilemma Obama faced in changing his mind, but they boil down to the wisdom of not going into battle unprepared to fight. If that sounds like a “by any means necessary” argument, it is. We can’t forget what happened in 2000 this quickly.
Along with President Obama’s decision that the ‘fight’ should be a fair one, serious work to change the law must not only continue but improve in its targeting as well. There are steps that Obama could take right away, and he should be pressured to take them. Any corporation that has a contract with the government could be required by executive order to reveal their donations to Super PACs and other spin-off, “non-profit” political organizations. Given the huge percentage of corporations that have government contracts, this would expose an awful lot of corporate political dealings. He could also rally behind the federal legislation that has been proposed to shine some light on the donation process.
The real action though will be in sustained popular protest, an accurate legal challenge of the plutocratic Citizens United ruling, and its eventual overturning. So far, though, many of the ways that liberals have responded to Citizens United seem disorganized and likely to misfire. There is of course Bernie Sanders’ proposed constitutional amendment to overturn the decision, but its future success is dubious. As any supporter of the Equal Rights Amendment can tell you, it is notoriously difficult to pass constitutional amendments. In the current political environment, getting the 38 of 50 states necessary to ratify it would be unlikely. While there has been increasing citizen pushback against the ruling, here too not just any effort will do. The Occupy Movement has included challenges to the Supreme Court’s folly among its messages, including the wry move of lighting the Supreme Court building up with dollar signs, and many petitions have circulated that demand an end to the law.
To be effective, though, any and all of this opposition has to proceed from an accurate analysis of the Citizens United ruling, and not just from popular slogans and misconceptions. Here’s a huge one: The Citizens United ruling was not premised on the 14th Amendment-related free speech concept of “corporate personhood,” as is widely believed. And it’s not entirely about money being a form of free speech. That actually comes from an equally questionable 1976 Supreme Court ruling, Buckley vs. Valeo. Rather, the majority in Citizens United based its decision on First Amendment speech rights, and framed those rights in terms of the listener’s right to hear all speech regardless of how richly supported it is, rather than the speaker’s right to say it. They actually ruled that restricting the amount of money that can be contributed to election ads and messaging would restrict the listener’s right to hear all speech options. It makes a mockery of the notion of free and fair elections (as the minority pointed out at the time), but it has to be understood for the ruling to be effectively challenged and overturned.
So have the right kinds of sustained efforts been undertaken to chip away at the foundations of the Citizens United ruling? Not so far. By some reports, the Chamber of Commerce and other pro-corruption forces aren’t even a little anxious yet, in large part because the opposition has been off-base up to this point. No matter what, the American people need the flood of election funding from the super-wealthy and corporations to stop. But that has virtually no chance of happening if the American public doesn’t have a clearer picture of exactly what they are fighting. A second-term President Obama must then be held to his promise of campaign finance reform, challenging Citizens United on the legal basis upon which it was decided. A well-informed public must hold his feet to the fire. If he fails to follow through, he risks the way history will view Monday’s decision. If the people fail to effectively hold him accountable, they risk their democracy.