What are we bid for American justice?
By Bill Moyers and Michael Winship
That famous definition of a cynic as someone who knows the price of everything and the value of nothing has come to define this present moment of American politics.
No wonder people have lost faith in politicians, in parties and in our leadership. The power of money drives cynicism deep into the heart of every level of government. Everything — and everyone — comes with a price tag attached: from a seat at the table in the White House to a seat in Congress to the fate of health care reform, our environment and efforts to restrain Wall Street’s greed and prevent another financial catastrophe.
Our government is not broken; it’s been bought out from under us, and on the right and the left and smack across the vast middle more and more Americans doubt representative democracy can survive the corruption of money.
Last month, the Supreme Court carried cynicism to new heights with its decision in the Citizens United case. Spun from a legal dispute over the airing on a pay-per-view channel of a right-wing documentary attacking Hillary Clinton during the 2008 presidential primaries, the decision could have been made very narrowly. Instead, the conservative majority of five judges issued a sweeping opinion that greatly expands corporate power over our politics.
Never mind that in at least two separate polls an overwhelming majority of Americans from both political parties say they want no part of the court’s decision; they want even more limits on the power of money in elections. But candidates and their campaign consultants are gearing up to exploit the court’s gift in the fall elections.
Just this week, that indispensable journalistic Web site Talking Points Memo reported that K&L Gates, an influential Washington lobbying firm, is alerting corporate clients on how to use trade associations like the Chamber of Commerce as pass-throughs to dump unlimited amounts of cash directly into elections. They can advocate or oppose a candidate right up to Election Day, while keeping a low profile to prevent “public scrutiny” and bad press coverage. And media outlets already are licking their chops at the prospect of all that extra money to be spent buying airtime — as much as an additional $300 million. That’s not even counting production and post-production costs of campaign ads, which are considerable. A bad situation just got worse.
If you want to know just how much worse, look to the decision’s potential impact on our court system, where integrity, independence and fair play count the most when it comes to preserving faith in our system. It’s as susceptible to the lure of corporate wealth as the executive and legislative branches are.
Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election — that’s more than 80 percent of the state judges in America.
The Citizens United decision makes those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.
In the words of Charles W. Hall, a spokesman for the nonpartisan, judicial watchdog group Justice at Stake, “Corporate bottom lines are not affected by whether a bank robber gets 10 or 20 years in prison. The bottom lines are affected, however, by whether a large-scale lawsuit is upheld or overturned.”
During the 1990’s, candidates for high court judgeships in states around the country and the parties that supported them raised $85 million for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.
The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than $4.5 million spent by the Democrats and Republicans. Now, with the Supreme Court’s Citizens United decision, corporate money’s muscle just got a big hypodermic full of steroids.
As Supreme Court Justice John Paul Stevens wrote in his 90-page Citizens United dissent, “At a time when concerns about the conduct of judicial elections have reached a fever pitch … the Court today unleashes the floodgates of corporate and union general treasury spending in these races.”
States that elect their judges, he said, “after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.”
No wonder that legal experts, including former Supreme Court Justice Sandra Day O’Connor (the only living current or former Supreme Court member to have been an elected state court judge), have called for states with judicial elections to switch to a system of merit selection. Judges would be appointed but possibly subject to “retention elections” in which voters can simply vote thumbs up or down as to whether jurists are qualified to remain on the bench.
Until such changes are made, the temptations of corporate cash mean that in those states where judicial elections still prevail, there hangs a crooked sign on every courthouse reading, “Justice for Sale.”
Bill Moyers is managing editor and Michael Winship is senior writer of the weekly public affairs program, Bill Moyers Journal, which airs Friday nights on PBS.
