The Long Dark Shadow of Citizens United
This week Senate Democrats tried unsuccessfully to pass their two voting rights bills designed to prevent state governments from subverting elections. This effort was met by a Republican filibuster and Senate Democrats were blocked by Senators Manchin and Sinema in their attempt to carve out an exception to the filibuster rule for voting rights legislation. As a result, Republican-adopted legislation that significantly impairs voting rights in 19 states will remain in effect and will likely be duplicated in the remaining states controlled by Republicans. These events mark a major inflection point for democracy in America and threaten to allow the Republican Party to transform our system of government into a plutocracy not unlike those now found in a number of former Soviet Union states. This never should have happened as a majority of Americans support the voting rights legislation championed by the Democrats. Underlying this unfortunate turn of events is the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission.
Both Senators Manchin and Sinema have recently reiterated their objections to amending the Senate’s filibuster rule to make way for consideration of their party’s voting rights bills. (See “Hanging in the Balance” for their previously voiced reasons for opposing any amendment to the filibuster rule and my letter to them for why their objections to doing so are wholly without merit.) That they should be so opposed is curious as both of these senators have also expressed their support for their party’s two voting rights bills. In fact, Senator Manchin was the primary draftsman of one of them. Their current reasons for not supporting a change to the filibuster rule were most recently spelled out in a speech by Senator Sinema. In that address made on the Senate floor she asserted that “Eliminating the 60-vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy from threats in the years to come.” For someone as intelligent as Senator Sinema (and she is exceptionally bright—see “Taming the Trojan Horses”), it’s beyond comprehension that she could actually believe that the Senate’s filibuster rule is now (or will ever be) helpful in safeguarding our democracy.
Our democracy is currently under the most serious attack it has faced since the Civil War. Republican-controlled states are taking steps to undermine the nation’s electoral system by suppressing the popular vote, replacing non-partisan election officials with party loyalists and in certain cases enabling their legislatures to set aside the popular vote altogether. Without moving forward with the two Democratic voting rights bills, our electoral system will become a mockery not unlike those around the world reshaped by authoritarian governments. In short, her professed reason for opposing an amendment to the filibuster rule is a “Trumpism”—she is accusing her fellow Democrats of trying to weaken our nation’s democratic system when that is exactly what her refusal to amend the filibuster rule is facilitating.
Equally bizarre was Senator Sinema’s statement that she doesn’t want to vote in favor of the voting rights bills unless they are also supported by some Republicans. She obviously doesn’t appear to be troubled by the fact that the Republicans’ new multi-faceted attacks on voting rights have been enacted without any Democratic votes. Could she really be so naïve as to think that by standing down in the face of those attacks she will magically convince the Republicans to renew their vows to support the nation’s democratic heritage? Her statement would also seem to imply that she would be prepared to give the Republicans a veto over the pending voting rights bills even if there were no filibuster rule standing in their way. Where was that same devotion to bi-partisanship last month when she (and Senator Manchin) voted to raise the debt ceiling without the support of a single Senate Republican? Does she value the safety of the nation’s currency over the safety of its democratic system of governance?
Senator Manchin’s current excuse for not amending the filibuster rule is equally confounding. He stated that he opposes amending the filibuster rule because “elected leaders are sent to Washington to unite our country by putting politics and party aside.” Quite the contrary, what the American people appear to find most upsetting is how our Congress has become so dysfunctional that little is being done to address their problems. Donald Trump was elected to be the nation’s 45th president because the American people thought that he could overcome that dysfunction and get things done. In short, the American public wants action from its elected representatives, not collegiality.
Of course, lying at the heart of Congressional inaction is the filibuster rule which enables a minority party to block consideration of legislation. This rule can encourage the two political parties to try to reconcile their differing views but only if both parties are inclined to do so. Unfortunately, for the past decade this has not been the case as the political strategy of the Republican Party has been to make sure that Democrats are unable to accomplish anything when holding the reins of government (see, “Partisan Politics”). As a result political gridlock has generally prevailed whenever the Democrats are in control of the nation’s government.
Let there be no misunderstanding. There is nothing sacrosanct about the Senate’s filibuster rule. It’s not inscribed in the Constitution nor in any statute. Assuming that a quorum is present, it can be amended with a simple plurality (not even a majority or super-majority) of the senators voting. It’s simply a rule for governing debate in the Senate by providing a mechanism for curtailing discussion. This prevents a minority of senators from bringing the business of the Senate to a halt by prolonged discussion of a matter. Nor, as some have argued, was the filibuster rule intended to require a supermajority vote on all matters that come before the Senate. Over the years the filibuster rule has been amended at least five times—each time reducing the number of senators necessary to terminate debate on a matter.
So why do Senators Sinema and Manchin keep giving wholly illogical reasons for their refusals to support an amendment to the filibuster rule that would facilitate the passage of the Democrats’ two voting rights bills? Even more to the point, what, if anything, can be done about it? It has become painfully obvious that it’s fruitless to try to convince them that their professed devotion to the filibuster rule is illogical. They, of course, know that -- they’re not stupid. From their prospective, however, while their reasoning may be illogical, it’s also highly profitable. Thanks to the last minute run-off elections of Senators Warnock and Ossoff in Georgia, Senators Manchin and Sinema have found themselves sitting in the legendary catbird seat enabling them to cast the deciding votes on a number of critical bills that come before the Senate.
They have taken advantage of this coveted position to harvest a bumper crop of large donations, many from corporations and others from wealthy individuals who in the past have only supported Republican political candidates such as James A. Haslam III, who owns the Cleveland Browns football team, and the Dallas real estate developer Harlan Crow. Also among other billionaire Republican donors supporting this “Bonnie & Clyde” duo are Kenneth Langone, a prominent financier, and Stanley Hubbard, the CEO of Hubbard Broadcasting. Between January 2019 and September 2020 Senator Sinema raked in $6.1 million in campaign donations and Manchin collected $3.8 million. Yahoo!News reported that this past October and November Manchin’s Political Action Committee received 36 donations from corporations. Both senators have also been invited to fundraisers hosted by conservative-leaning donors held at the $18 million mansion in Dallas owned by G. Brint Ryan. Ryan owns a tax consulting firm and has harvested over $115,000 in political donations for Manchin and another $80,000 for Senator Sinema.
In addition to the plethora of donations made directly to their political campaigns and PACs, NBC News has reported that One Nation, a GOP-aligned dark money group, has launched a $1 million radio, television and digital ad campaign in West Virginia designed to pressure Senator Manchin not to amend the filibuster rule. The ads encourage West Virginians to call Manchin and tell him to protect the rule.
Under the circumstances no appeal to logic is likely upend the professed attachment of these two senators to the filibuster rule. A far more persuasive argument would be to point out that if they continue to prevent the enactment of their party’s voting rights legislation the Republicans will regain control of both the House and the Senate in the mid-term elections. When that happens the two senators will lose their pivotal positions as well as their new-found attraction to Republican donors. That will relegate them to again having to rely on political donations of $5, $10 and $25. In short, it appears that they have now ridden the filibuster horse as far as it’s going to take them and it would behoove them to change their strategy. Furthermore, if the two voting rights bills are enacted they might still be able to continue their Game of Grift, harvesting large donations from Republican mega-donors through their ongoing opposition to the Build Back Better bill and other items on President Biden’s legislative agenda.
It is interesting to note that when Senator Sinema first entered politics as a “Green Party” supporter she is reported to have disparaged political donations, characterizing them as a form of “bribery.” It’s almost irrelevant whether you characterize the contributions garnered by Senators Sinema and Manchin as “bribes” or as “extortion” on their part. Their impact is the same; those donations have clearly played an important role in blocking the passage of the Democrats’ voting rights legislation as well as stymying the passage of the Build Back Better legislation.
There has always been an ebb and flow in the nation’s quest to confer voting rights upon all of its citizens. Commencing with the conclusion of George Washington’s presidency political candidates have practiced a variety of unsavory campaign practices such as buying votes and disseminating false information denigrating their opposition. In addition, state governments have restricted voting by non-whites, first by outright prohibitions and later through the imposition of a host of voting qualifications and callous acts of intimidation. These tactics were countered at the federal level by constitutional amendments (like the Fourteen, Fifteenth and Nineteenth Amendments guaranteeing the rights of women and non-whites to vote) and election laws (like the 1907 Tillman Act which precluded corporations from making political contributions).
Following the Second World War efforts to further secure voting rights for blacks living in southern states were renewed giving rise to the enactment in the 1960s of the Civil Rights Act and the Voting Rights Acts. Thereafter, Supreme Court’s decision in Austin v. Michigan Chamber of Commerce (1990) upheld a state statute limiting the right of non-profit entities to finance political campaigns. In 2002 the U.S. Congress enacted the Bipartisan Campaign Reform Act (aka the “McCain-Feingold Act”) which prohibited corporation, labor unions and non-profit entities from making political contributions. That was followed in 2003 by the Supreme Court’s decision in McConnell v. FEC which rejected a charge that the McCain-Feingold Act curtailed the First Amendment’s right of free speech.
The tide of expanding voter protections began to turn during the administration of George W. Bush with the appointments of John Roberts and Samuel Alito to serve on the U.S. Supreme Court. In 2006, the Court decided Federal Election Commission v. Wisconsin Right to Life, Inc. in which it implied that campaign advertisements might be protected as free speech under the First Amendment. Later that year it decided Randall v. Sorrell in which it declared certain statutory limits on campaign contributions were unconstitutionally low. These decisions set the stage for the Court’s 2010 landmark Citizens United decision that not only set aside the prohibition against political donations by corporations established in the 1907 Tillman Act but also the express terms of the previously upheld McCain-Feingold Act.
In a dissenting opinion Justice John Paul Stevens asserted that “the framers of the Constitution had sought to guarantee the right of free speech to individual Americans, not corporations” and warned that the Court’s ruling “would undermine the integrity of elected institutions across the Nation.” A week later President Obama echoed Justice Stevens’ remarks stating that the Court’s decision would “open the floodgates for special interests—including foreign corporations—to spend without limits in our elections.” Shortly thereafter, the D.C. Circuit Court of Appeals in SpeechNow.org v. FEC applied the reasoning in the Citizens United decision to strike down the $5,000 limit on the amount of money that individuals can give to organizations that expressly support political candidates (commonly referred to as “political action committees” or “PACs”). As a result wealthy individuals like Sheldon Adelson, Michael Bloomberg and Tom Steyer were able to contribute $123 million, $90 million and $70 million respectively in the 2018 election cycle.
The SpeechNow decision gave rise to the creation of Super PACs. Even though all PACs remain legally prohibited from coordinating their expenditures with the political candidates they are supporting, by disbursing their funds through politically-oriented not-for-profit groups that are not required to identify their donors Super PACs are able to effectively skirt that prohibition. As reported by Opensecrets.org, “Super PACs now surpass national party committees as the top outside spending groups. In 2018, each of the top three outside spending groups were establishment-connected Super PACs: the House GOP-aligned Congressional Leadership Fund ($136 million), Harry Reid-connected Senate Majority PAC ($112 million) and Mitch McConnell-linked Senate Leadership Fund ($94 million).”
It’s not that Justice Stevens and President Obama were clairvoyant when they denounced the Court’s Citizens United decision – their familiarity with the political landscape led them to predict exactly what would unfold as a result. Eliminating campaign financing restrictions was a well-recognized foundational element in the Republican Party’s efforts to attain and maintain and control our federal government. The decision’s highly political nature was made all the more obvious by the Court’s Republican majority’s unceremonious trashing of legislation governing the conduct of elections that had withstood the test of time as well as prior judicial attacks. It was also apparent from the majority’s willingness to decide issues that were not squarely before the Court. Indeed, the Citizens United case could and should have been decided on much narrower grounds, an important facet of judicial conservatism to which the five justices speaking for the Court claimed adherence.
Admittedly money alone cannot win elections. That’s why the Republican Party’s plan to seize and maintain control of the federal government also called for an alliance with supportive media organizations that would echo its talking points and denigrate those who opposed it as well as a federal judiciary that would to support its political agenda. The fact remains, however, that money alone in certain cases can buy the support of individual legislators like Senators Manchin and Sinema and thereby shape the nation’s laws. In this case it may also determine whether our nation will continue to be governed by democratic principles.