Montana's anti-corruption law, along with those of numerous other states, persisted until 2010 when Justice Kennedy, writing for the five-vote majority on the U.S. Supreme Court, declared in the Citizens United decision that in examining over 100,000 pages of legal opinions he could not find:
"...any direct examples of votes being exchanged for ... expenditures. This confirms," Kennedy wrote, "Buckley's [the 1976 decision that money equals free speech] reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. Ingratiation and access, in any event, are not corruption."
The U.S. Supreme Court, following on the 1976 Buckley case that grew straight out of the Powell Memo and was written in part by Lewis Powell, turned the definitions of corruption upside down.
That same year, they overturned the Montana law in the 2010 ATV v. Bullock ruling, essentially saying that money doesn't corrupt politicians, particularly if that money comes from corporations who can "inform" us about current issues (the basis of the Citizens United decision) or billionaires (who, apparently the right-wingers on the Court believe, obviously know what's best for the rest of us).
Thus, the reason the NRA can buy and own senators like McCain and Rubio (and Thom Tillis/$4 million, Cory Gardner/$3.8 million, Joni Ernst/$3 million, and Rob Portman/$3 million, who all presumably took money much faster and much more recently than even McCain) is because our Supreme Court has repeatedly said that corporate and #MorbidlyRich billionaire money never corrupts politicians. (The dissent in the Citizens Unitedcase is a must-read; truly mind-boggling and demonstrates beyond refutation how corrupted the right-wingers on the court, particularly Scalia and Thomas -- who regularly attended events put on by the Kochs -- were by billionaire and corporate money.)
So here we are. The Supreme Court has ruled, essentially, that the NRA can own all the politicians they want, and can dump unlimited amounts of poison into our political bloodstream.
Gun-control activists are only confronting the tip of the iceberg.
Activists struggle to fight for our climate, the rights of communities to be free of pollution from fracking or factory farms, the rights of citizens to health care and education, and dozens of other issues where the government has the ability to limit predatory corporate behavior. Unfortunately, because of corporate money, our federal and many state governments are making things worse for humans and the earth, while jacking up profits and tax cuts for corporations and billionaires.
But there are solutions. While we work as hard as we can to clean up America's gun problem -- and the Parkland activists have given us all a cause and a chance to make real change happen now -- we also need to work to get money out of politics. It was financial corruption, after all, that got us in this gun mess in the first place -- the history of the Heller decision is a horrible history of well-funded right-wing groups testing message after message until they found one that would stick with the Supreme Court.
There are three big ways to overturn the power that billionaires and corporations have seized through their corruption of the Supreme Court.
The first way is to replace enough members of the Court to ensure a moderate or even progressive majority. This looked like a very real possibility in 2000, when George W. Bush lost the national vote to Al Gore by over a half million votes, and, according to a recount done by a consortium of newspapers, would have lost, as the New York Times reported, the electoral vote as well had the Supreme Court not intervened and stopped the Florida recount.
The Times noted: "[A] statewide recount could have produced enough votes to tilt the election his [Gore's] way, no matter what standard was chosen to judge voter intent." Unfortunately, they buried that sentence in the 17th paragraph of a story with a misleading headline, because the country had just been attacked on 9/11 and Bush's "legitimacy" was important to preserve during a time of national crisis. And, of course, none of that includes considerations of the considerable voter suppression that Jeb Bush and Katherine Harris engaged in, as documented by E.J. Dionne in the Washington Post, and Greg Palast for the BBC.
More recently, to keep the Court in GOP hands, Mitch McConnell simply flatly refused to even recognize President Barack Obama's appointment of Merrick Garland to the Supreme Court, waiting for Donald Trump to put in one of the most hard-right justices, Neal Gorsuch, since the 1920s.
The second way around Citizens United is for Congress to pass legislation specifically undoing Citizens United. Their authority to do this is found in the Constitution, Article 3, Section 2, which says: "[T]he Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Congress rarely does this (it's referred to as "court stripping"), although banning judicial review was pushed really hard in the 1980s, including by Reagan himself.
The third and most likely way to get around this corruption of our Supreme Court is to do the same thing we did when the Court, in Dred Scott v. Sanford, ruled that African Americans were property and not people under the Constitution. We amended the Constitution (the 13th, 14th, and 15th Amendments) to overturn the Supreme Court's ruling.
Numerous groups, from Public Citizen to Move To Amend, are working hard on this last effort to say that "Corporations are not people and aren't entitled to the rights of personhood," and "Money is not the same thing as speech." If successful, such a constitutional amendment would overturn the "new laws" promulgated (unconstitutionally) by the court in 1886 (corporate personhood) and 1976 (money = "free speech").
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