I miss George Carlin. I think he raises a good (possibly the best) point that it doesn’t really matter who you vote for. But I think there’s an important reason to vote, which has gone largely underreported: upcoming nominations of Supreme Court justices.
Currently there are 5 traditionally conservative (Roberts, Scalia, Kennedy, Thomas, Alito) and 4 traditionally liberal (Ginsburg, Breyer, Sotomayor, Kagan) Supreme Court judges, with Kennedy occasionally siding with the liberal opinion. The four judges in italic are likely to be replaced within the next years due to their age (over 73 years), with Ginsburg being the most likely candidate.
Why is this important? For starters, there’s the potential overturning of Roe v. Wade, and the endangerment of affirmative action (Fischer v. University of Texas on Affirmative Action in education is to be decided soon) as well as gay rights (DOMA & California’s Proposition 8). But there’s something even more fundamental: the current and former courts’ support of power of corporations over the protection of individual rights.
Conservative Supreme Court Activism
In a 2010 speech, Sen. Al Franken (D) makes the point that right-wing Supreme court activism has strategically strengthened the power of corporations in the last years (It’s a 40 minute speech, but I can highly recommend taking the time to watch).
What conservative legal activists are really interested in is this question: What individual rights are so basic and so important that they should be protected above a corporation’s right to profit?
And their preferred answer is: None of them. Zero.
He goes on to recount numerous cases in which ‘the Roberts Court has systematically dismantled the legal protections that help ordinary people find justice when wronged by the economically powerful’:
Stoneridge stripped shareholders of their ability to get their money back from the banks that helped defraud them, Conkright made it easier for employers to deny workers their pension, Leegin put the burden onto the small business owners to show that price fixing will hurt competition under the Sherman Act, and Exxon reduced the damages that Exxon had pay for Exxon Valdez oil spill from $2.5 billion to $500 million USD because it could have an ’unpredictable impact on its future profitability’.
He tells the story of Lilly Ledbetter who sued her employer after she found out shortly before her retirement that she had been receiving less pay than her male counterparts. The Supreme Court interpreted the legal requirement to sue within 180 days to refer to the first time she was discriminated against, not the most recent discriminatory check. Considering she simply did and could not know about it then, this is simply insane (Fortunately, the Lilly Ledbetter Fair Pay Act loosening those requirements was the first bill Obama signed into law).
Citizens United: Super PACs and 501©(4)s
The most important ruling, however, was the Citizens United decision in 2010, which fundamentally changed campaign finance and essentially created the basis for ‘Super PACs’ – those theoretically independent organizations that can spend an unlimited amount of money on campaigning.
They are required to disclose their donors, but there’s a way around it: The ‘501©(4) Social Welfare Organization’ (which can spend money on campaigning) does not need to disclose its donors or even report to the IRS until after the election (i.e. after the campaign). What’s more, it even enjoys tax-exempt non-profit status, and – get this – it can even donate its money to the Super PAC, which then only needs to disclose a donation by the ‘501©(4)’.
Stephen Colbert has brilliantly dissected this insane change in campaign finance by setting one up himself in a mockery of the process. His lawyer’s answer to what ‘the difference between that and money laundering’ is ’It’s hard to say.’
Here’s an informative interview with lawyer Trevor Potter, a self-declared Republican:
This has led to an enormous rise in campaign spending, with the latest estimates reaching about $6 billion USD (compare that to the previous record of $700 million USD in 2008). Most of which, we’ll never know where it came from. And lot of that money has gone into negative attack ads, leading experts to call this “very likely to be the most negative race since the advent of television” (John Greer).
If I could, I surely would
So the Super PAC / 501©(4) combination seems like the perfect tool for those that according to Carlin ‘own this country’ to influence the election that will most likely determine who will decide upon the future of the Supreme Court. It might even be a major reason that they spend so much money on it. And check out the numbers USA Today posted:
That’s why I think this election matters. A more liberal court might revisit Citizens United, eliminating the need for a constitutional amendment to overturn the decision. Should Ginsburg and Kennedy be replaced with a more conservative judge however, it’s safe to assume that this outrageous campaign finance game will continue along with the hollowing out of individual rights at the benefit of a corporation’s right to profit.
Unfortunately, I’m not allowed to vote. And I know that Americans don’t particularly like advice from the rest of the world, but if I could, I surely would make use of that privilege.