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How “progressive” court decisions promoted the rise of dark money

How “progressive” court decisions promoted the rise of dark money

Note: I originally posted this item in September, 2010, but it became lost in one of those technology glitches with which you are all familiar. However, it is still timely, so I’m re-posting it here. The photo below was the original one attached to the article; in it, I’m at the top of St. Paul’s Cathedral, London, in front of the city skyline. It was photographed in October, 2005—RGN.

RGNStPaulsWho is to blame for all the anonymous money going into congressional races this year?  If you believe Eugene Robinson (“Cash Cow Anonymity Feeding GOP”), whose opinion piece the Denver Post misplaced into its news section, it’s largely the fault of the Supreme Court’s recent Citizens United ruling:

“The Supreme Court made all this possible with its ruling earlier this year,” Robinson writes, “in Citizens United vs. Federal Election Commission, which legalized unlimited campaign spending by corporations, unions, trade associations and other such entities.”

Liberals have been bashing that decision ever since it came out, blissfully disregarding that Citizens United rests squarely on some of their own favorite case precedents.  Ruling the other way would have required reversing, or at least qualifying, some of those precedents.

Here are some other “progressive” Supreme Court decisions that led directly or indirectly to the orgy of anonymous spending:

*    Stromberg. v. California (1931) and Near v. Minnesota, which ruled that the First Amendment limits the states, even though the amendment itself says it limits only Congress.  These decisions have made it impossible for the states to experiment with campaign finance laws that don’t pass federal muster.  Maybe this is a good thing, and you certainly can argue that Stromberg and Near were correctly decided, but the fact remains that they were issued by “progressive” justices and have been celebrated by “progressives” ever since.

*    NAACP v. Alabama, decided by the hyper-activist, hyper-liberal Warren Court in 1958.  The Court granted the NAACP, a corporation, First Amendment rights and allowed it to shield its contribution lists from state authorities.

*    New York Times v. Sullivan (1964), also decided by the Warren Court, was based on the idea that corporations had First Amendment rights.  More controversially, the case wiped out much of the protection of the slander and libel laws, thus encouraging smear-mongers.  Later liberal decisions went even further.  As a result, you can say almost anything against even the most innocent candidates and usually get away with it.

Finally, we cannot overlook “progressive” cases like U.S. v. Darby Lumber (1941) and Wickard v. Filburn (1942), where the Court largely abandoned its job of keeping federal economic power within constitutional bounds.  As a result, federal politicians can destroy almost anyone’s livelihood, so exposed people feel forced to donate to candidates and campaigns in self defense.  And because federal politicians can and do retaliate against those that oppose them, it’s a good idea to make your contributions anonymously in case the other guy finds out.

So now who is really to blame for all those nasty, anonymous donations?

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Rob Natelson
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