When did the Supreme Court begin to be so completely out of touch?

July 27, 2022

When did the Supreme Court begin to be so completely out of touch?

Let me just point something out about Citizen's United v. FEC. When you crack open this Byzantine SCOTUS ruling that has aged like wine turning into vinegar, the first thing you notice is that the case was ostensibly about campaign finance reform laws, and for reasons beyond understanding, the Supreme Court turned it into a free speech case. 

When I was 18, I volunteered for an insurgent congressional campaign that made campaign finance one of its ethical stances. The campaign didn't take any corporate donations and took a hard line against fundraising improprieties by opponents. I ended up writing the press releases for the campaign and doing other press work. I mention that only for the reason that the late Senator Paul Wellstone was a totemic figure for the campaign. That campaign was a significant part of my civic education. So I'm going to speak from that personal history and that personal perspective, and now you know. 

What strikes me immediately upon reading Citizen's United is how confused the decision is about the circumstances that led to the case being considered by the Court. If someone is looking for the moment when it became clear that the Supreme Court was "out of touch" with the world outside its hallowed halls, look to Citizen's United first. But the reason this is the best example of the Supreme Court beginning to be completely "out of touch" is not in the decision itself being wrong, nor even that the reasoning is wrong, although it is suspect, but simply because it doesn't seem to have a solid grasp of the facts behind the case. 

The background to the Citizen's United case is that, 1) Congress had been haggling over a bipartisan campaign finance reform bill, and 2) this bill had been considered to be necessary due to the advent of the internet. To briefly explain why this would matter, and how it's related to Citizen's United v. FEC, just consider this: it's not as expensive to buy an Internet political ad as it is to buy a TV political ad. And political entities have already been spending large amounts of money on political ads on broadcast media. Unless we were for some reason looking forward to turning the Internet into a hellhole of political advertising, we had to, in the words of Sen. Wellstone, "get the money out of politics". 

It would also be a welcome opportunity to scrub out some of the remaining corruption in the campaign finance system. The late great Senator Paul Wellstone also attached an amendment, the Wellstone amendment, to the campaign finance reform bill, preventing certain campaign ad buys from non-profit entities too - not only corporate entities - indicating that the late great Senator considered this a matter of principle and not of partisan advantage. 

But the Citizen's United decision takes none of this into account seriously - and in fact seems genuinely confused about the issues involved in the campaign finance reform effort. It nearly trips over itself at the mention of the Wellstone Amendment, and believe it or not, after making a perfunctory effort to acknowledge the campaign finance reform legislation it proceeds as if despite "all that", the Court has prejudged the case, because they like the TV. They like watchin' the toob. Or they like that people watch da toob. They decided a complex case about changing technological paradigms and political corruption in favor of, what? -they like watching television? Honestly, there is nothing closer to the plot of the movie "Idiocracy" than the "reasoning" in this decision. 

What concerns me very deeply is this "there is no alternative" attitude the Court took toward broadcast media in this case. 

I mean, not only did they provide no help toward the campaign finance reform effort, and no help toward addressing the needs of a nascent internet age, they actively made the problem worse. 

Just keep in mind in future, that the abbreviation "money is speech" for this Citizen's Unitedcase is a mockery of the Court's reasoning. They took a case that was actually about money - campaign finance - and though some alchemical bullshit made it about speech. What they really decided was that corporations could spend huge amounts of money on advertising. And, several years later, we see that amount only increasing. Is advertising speech? I don't see that we have to go out of our way to protect it. Corporations are doing fine; they have lots of power. Don't you have to pay huge amounts of money to get your speech out there? Not anymore; not with the Internet. And that's the point Sen. Wellstone and others were making, that went right over the heads of the Supreme Court, apparently. 

The nightmare this has dropped us into is almost beyond comprehension. Just ask my friend Simon, who used to run the Michigan Campaign Finance Network: everything is money in politics these days. It's almost a better predictor than polls for where the political system is going to go. And let me just ask you this, if analysis of where the money is going can predict political trends, doesn't that show that Citizens's United ushered in a new era of political corruption?