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"As long as Citizens United remains the law of the land, our democracy will remain broken," said one campaigner.
As President Donald Trump triumphantly returned to the White House thanks in part to a tsunami of campaign cash from oligarchs and corporate interests, democracy defenders on Tuesday marked the 15th anniversary of the U.S. Supreme Court ruling that unleashed such spending by urging action to overturn the decision.
In a nation where corporations and moneyed interests already wielded disproportionate power and influence over elections, Citizens United v. Federal Election Commissionreversed campaign finance restrictions dating back to the era of Gilded Age robber barons. The ruling affirmed that political spending by corporations, nonprofit organizations, labor unions, and other groups is a form of free speech protected by the 1st Amendment that government cannot restrict. The decision ushered in the era of super PACs—which can raise unlimited amounts of money to spend on campaigns—and secret spending on elections with so-called "dark money."
In his Citizens Uniteddissent, Justice John Paul Stevens asserted that "in a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets," and warned that the ruling "will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process."
"Over the last 15 years, the American people have watched with disgust as both parties welcomed the unfettered sale of our democracy and elections to the highest bidders."
Since then, nearly $20 billion has been spent on U.S. presidential elections and more than $53 billion on congressional races, according to data compiled by OpenSecrets. Spending on 2024 congressional races was double 2010 levels, while presidential campaign contributions were more than 50% higher in 2024 than in 2008, the last election before Citizens United.
Ultrawealthy megadonors played a critical role in Trump's 2024 victory. Some of them have been rewarded with Cabinet nominations and key appointments in "an administration dominated by billionaires and corporate interests," as Americans for Tax Fairness executive director David Kass described it.
"Fifteen years ago today, the Supreme Court gave billionaires and special interests unprecedented power to rig our democracy with its disastrous Citizens United decision. Yesterday, Donald Trump was sworn in, ushering in the wealthiest administration in American history," Tiffany Muller, president of the advocacy group End Citizens United, said on social media Tuesday. "Citizens United paved the way for Trump II."
Alexandra Rojas, executive director of the progressive political action committee Justice Democrats, said in a statement that "over the last 15 years, the American people have watched with disgust as both parties welcomed the unfettered sale of our democracy and elections to the highest bidders."
"Citizens United legalized economic inequality as a political tool for the wealthy to exploit," Rojas added. "A decade-and-a-half later, working-class people cannot afford to run for office and everyday voters' voices are drowned out by billionaire-funded super PACs. As long as Citizens United remains the law of the land, our democracy will remain broken."
Justice Democrats noted: "Yesterday, Donald Trump was inaugurated as president in what was maybe one of the most openly corporate-sponsored inaugurations in American history. In just one row seated in front of Trump's Cabinet members, four men had the combined wealth of just under $1 trillion."
"Billionaires and corporations are paying their way to gain influence in the Trump administration and they can expect a massive return on their investment, at the expense of everyday people," the group added.
It's no surprise, say critics, that corporate profits and plutocrat wealth have soared to new heights during the Citizens United era.
"Citizens United allowed corporations to buy candidates and elections. Citizens United legalized political bribery. Citizens United let wealth dominate our elections," the consumer watchdog Public Citizen said Tuesday. "Overturn Citizens United."
Positing that "Citizens United turned our democracy into an auction," Congressman Mark Pocan (D-Wis.) wrote on social media Tuesday that "our government is supposed to be of the people, by the people, and for the people—not corporations and billionaire elites. We must #EndCitizensUnited and put the American people back in charge."
Democratic lawmakers have introduced numerous bills, including proposed constitutional amendments, to reverse Citizens United. While Congress has not been able or willing to address the issue, 22 states and the District of Columbia, as well as more than 800 local governments across the country, have passed measures calling for a constitutional amendment to overturn the ruling, according to Public Citizen.
"This is a moment to
usher in a new era in the Democratic Party that rejects the growing oligarchy in this country by rejecting the unprecedented level of billionaire and corporate spending that has a stranglehold over both parties," Justice Democrats said on Tuesday. "Now is the moment to tirelessly center working people and expose the big money corruption that Citizens United has brought onto both parties. By rejecting their influence, working-class people may finally have the promise of a party that actually serves them."
The right-wing justice sought to influence the opinions of others on the high court even before they heard arguments in Bush v. Gore.
Former U.S. Supreme Court Justice Sandra Day O'Connor played a greater role than previously known in handing the highly contentious 2000 presidential election to George W. Bush, a document released Tuesday by the Library of Congress revealed.
It has long been known that O'Connor—who was appointed by former President Ronald Reagan and was the first woman to serve on the Supreme Court—wanted Bush to win the 2000 election, at least in part because of her right-wing views; her admiration for his father, former President George H. W. Bush; and because she wanted to retire after a Republican president nominated her replacement.
However, the newly released documents—part of a trove of former Justice John Paul Stevens' papers—include a four-page memo O'Connor sent to her colleagueson December 10, 2000, even before they heard arguments in Bush v. Gore. Her memo laid the groundwork for the controversial 5-4 ruling that stopped Florida's court-ordered recount in a too-close-to-call contest between Bush and then-Vice President Al Gore and gave the presidency to the Republican Texas governor.
In her memo, O'Connor attacked the unanimous November 21, 2000 Florida Supreme Court decision that the results of manual ballot recounts in Miami-Dade, Broward, and Palm Beach counties must be included in the final state tally, while giving the three counties five days to certify their results.
"Before there was 2020 there was 2000."
During that period, Bush's legal team appealed to the U.S. Supreme Court while self-described "dirty trickster" Matt Schlapp and future seven-count felon Roger Stone led an effort to fly hundreds of paid operatives to Florida to harass and intimidate Miami-Dade officials—the so-called "Brooks Brothers Riot"—in a bid to thwart their court-ordered work.
"I am concerned that the Florida Supreme Court transgressed the lines of authority drawn by Article II of the federal Constitution in substantially changing the state Legislature's statutory scheme for the appointment of presidential electors," O'Connor wrote.
"The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes," she noted, a reference to instances when voting machines could not read ballots.
\u201cBefore there was 2020 there was 2000 ....\n\nhttps://t.co/8gHDBXXdgK\u201d— Jocelyn Benson (@Jocelyn Benson) 1683072858
"Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated," O'Connor asserted. "More importantly, the court failed to provide any standard more specific than the 'intent of the voter' standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards."
O'Connor noted that the Florida Legislature "has created a detailed, if not perfectly crafted statutory scheme that provides for the appointment of presidential electors by direct election," and that "the Legislature has designated the secretary of state as the 'chief election officer.'"
Florida's secretary of state at the time, Katherine Harris, was not only a Republican, she also co-chaired Bush's campaign in the state. On November 26, 2000 Harris declared Bush the winner in Florida by 537 votes, even though there were counties still tallying ballots.
Ignoring this obvious conflict of interest, O'Connor said the Florida Supreme Court "disregarded the secretary of state's delegated duty to exercise her discretion to determine whether to accept the state's late returns" and whether a manual recount requested by Gore was warranted.
Gore had asked for recounts in four heavily Democratic counties amid drama over dimpled, pregnant, and hanging chads; butterfly and caterpillar ballots; write-in votes; overcounts; undercounts; and a bewildering barrage of strange new terms. Some political commentators have argued that Gore's failure to request a statewide manual recount may have been a fatal miscalculation.
\u201cA reminder that the Republicans successfully stole a presidential election 23 years ago...and their hackish Justices on the Supreme Court played a key role in their doing so. https://t.co/2qkSr2svmt\u201d— @Ben_Alpers@mastodon.online \ud83d\uddfd (@@Ben_Alpers@mastodon.online \ud83d\uddfd) 1683070110
The day after O'Connor circulated her memo, Justice Anthony Kennedy, another Reagan appointee and frequent swing vote, wrote to right-wing Chief Justice William Rehnquist endorsing her "very sound approach."
Rehnquist—who was appointed by Republican former President Richard Nixon—was a proponent of what is now called the independent state legislature theory (ISLT), the fringe right-wing notion that state lawmakers alone can regulate federal elections. Hard-right Justices Antonin Scalia and Clarence Thomas, two of the five votes for Bush, also embraced the dubious theory.
Prominent purveyors of former President Donald Trump's "Big Lie" that the 2020 presidential election was "stolen" have cited ISLT when pushing state lawmakers to help overturn President Joe Biden's Electoral College victory. Thomas' wife Ginni Thomas—who in 2000 solicited resumes for positions in the presumptive Bush administration before her husband cast his decisive vote in Bush v. Gore—unsuccessfully pressed Arizona state lawmakers to invoke ISLT in service of Trump's ill-fated effort to reverse his 2020 loss.
Notably, Bush's legal team in Bush v. Gore included current right-wing U.S. Supreme Court Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Moore v. Harper, a North Carolina voting rights case currently before the court, could decide the legal validity of ISLT.
\u201cOne member of George W. Bush's legal team was especially enthusiastic about the "independent state legislature" theory: Brett Kavanaugh. \n\nHere he is endorsing it in 2000. \n\nNow Kavanaugh gets a chance to write it into law. Talk about a long game. https://t.co/VlnfRdeCy6\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1670424929
On December 12, 2000 the justices ruled in a 7-2 per curiam opinion that Florida's court-ordered recount must be stopped on equal protection grounds, and 5-4 that there was no other way to recount all of the contested votes in a timely manner. Rehnquist, Kennedy, O'Connor, Scalia, and Thomas voted in favor of Bush, while Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Stevens dissented.
In his stirring dissent, Stevens presciently noted that "although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judges as an impartial guardian of the rule of law."
Four out of the five justices who sided with Bush were accused of conflicts of interest: Rehnquist and O'Connor were septuagenarians who had stated their desire to retire during a Republican presidency—the latter reportedly exclaimed "this is terrible" in response to a TV news report showing Gore leading on election night; Thomas' wife was headhunting personnel for a potential Bush administration; and two of Scalia's sons worked for law firms representing Bush. None of the four justices recused themselves from Bush v. Gore. Bush later nominated Eugene Scalia for U.S. labor solicitor.
\u201cWhen I was a kid I really really looked up to the Supreme Court justices. We all learned how they get lifetime appointments to make sure they can\u2019t be influenced etc\u2026with Thomas, Alito, O\u2019Connor, Kavanaugh, and all\u2026I definitely don\u2019t feel the same way.\n\nhttps://t.co/6YZYqMFvAM\u201d— Yuh-Line Niou (@Yuh-Line Niou) 1683092690
O'Connor—who is now 93 years old—would come to have regrets, which she expressed years after her 2006 retirement. In 2013, she told the Chicago Tribune editorial board that Bush v. Gore "stirred up the public" and "gave the court a less-than-perfect reputation."
"It took the case and decided it at a time when it was still a big election issue," she said. "Maybe the court should have said, 'We're not going to take it, goodbye.'"
There were other reasons why some commentators refer to the 2000 presidential election as "stolen." Chiefly, massive voter disenfranchisement resulting from racist policies of Republican Florida Gov. Jeb Bush—the GOP candidate's brother—played what one federal civil rights official called an "outcome-determinative" role in the state's, and therefore the nation's, results.
Scalia infamously dismissed his friend Bader Ginsburg's concerns over Black disenfranchisement as the "Al Sharpton Footnote," and habitually advised Americans disturbed by Bush v. Gore to "get over it."
\u201cThe article included extensive evidence that Ginsburg was right to be concerned. When Scalia died 2 years later, his obnoxious & dismissive Sharpton remark - which said a great deal about who he was - didn\u2019t make it into the many think pieces about his tenure on the Court.\u201d— Sherrilyn Ifill (@Sherrilyn Ifill) 1683083845
However, it was ultimately the Supreme Court's cessation of the unfinished Florida recounts, and Gore's subsequent meek acquiescence "for the sake of our unity as a people and the strength of our democracy," that handed victory to Bush.
Former Supreme Court Justice John Paul Stevens (appointed by a Republican President) wrote in 2019, "District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench."
Never in the 217 years since the Bill of Rights had been ratified in 1791 had the Supreme Court found an individual Constitutional right to own a gun separate from a militia (which today we call the National Guard) and during that time, local, state and the Federal government enacted numerous gun control laws.
Even former Republican Chief Justice Warren Burger (appointed to the Court by Richard Nixon) called the NRA support of this interpretation "One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have even seen in my lifetime."
But Democratic politicians are afraid to agree with Stevens or even Burger.
When it comes to gun violence, Democrats generally start by saying "Of course we don't want to infringe people's Second Amendment right to own a gun. We just want 'common sense' gun laws like background checks and red flag laws" (which everyone knows will do little except at the margins.)
Republicans didn't say "Of course we don't want to infringe women's Constitutional right to decide whether to bear a child. We just want common sense laws to protect their health." No. They spent decades declaring abortion is murder, that as Alito said in his draft opinion, Roe was "egregiously wrong from the start," and packing the courts with judges who agree with Alito.
It's time for Democrats to summon some courage and say loud and clear that the Heller decision adopted by a 5-4 Republican majority on the Court was one of a string of politicized 5-4 decisions by Republican Justices to advance the Republican agenda.
What's Wrong With Heller?
The 2008 Heller decision flew in the face of long-standing Supreme Court precedent. Never in the 217 years since the Bill of Rights had been ratified in 1791 had the Supreme Court found an individual Constitutional right to own a gun separate from a militia (which today we call the National Guard) and during that time, local, state and the Federal government enacted numerous gun control laws.
Heller (like Alito's draft opinion overturning Roe smashed the Supreme Court's own precedent, effectively reversing the Supreme Court's 1939 decision in United States v. Miller upholding provisions of 1934 National Firearms Act, passed by Congress in response to the St. Valentine's Day Massacre which required the registration of certain types of firearms, such as machine guns and sawed-off shot guns.
In Miller, a unanimous Supreme Court had held that "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."
Antonin Scalia's 5-4 opinion in Heller demonstrated the utter hypocrisy of Scalia's textualist/originalist doctrine of Constitutional interpretation--now adopted by at least 5 other Supreme Court Justices--that the Constitution should be interpreted according to the meaning of the text as understood at the time it was written.
Here's the actual text of the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms."
Excuse me. What about the text regarding "a well regulated Militia" and the "security of a free State [i.e. a State of the Union]"? Scalia's majority opinion treats these as a nullity, or, as he calls them mere "prefatory clause(s)" that do not limit the "operative clause" that "connotes an individual right to keep and bear arms." What? Scalia and his 4 right-wing colleagues really think the Framers put the text "a well-regulated militia" and a "free State" in the Constitution for their entertainment value and not for any operative meaning?
A Politicized Extreme Right-Wing Court
And indeed, Scalia and his 4 right-wing colleagues were doing little more than carrying out the political bidding of right-wing interest groups. The Heller case was constructed by the right-wing think tank, the Cato Institute and specifically designed to give 5 right-wing Justices a road map to overturning long-standing precedent to find an individual right to gun ownership unconnected to state militias, despite the plain language of the Second Amendment. An amicus brief signed by then-Texas Attorney General Greg Abbott and authored by then-Texas Solicitor General Ted Cruz was filed by 31 Republican state Attorney Generals. It was, to quote former Chief Justice Burger again a "fraud on the American public by special interest groups."
And why can't Democratic politicians (except perhaps Beto O'Rouke) dare to say this? Do they think that pretending to support an individual's Constitutional right to own guns will win the votes of Trump loyalists? In his June 2 speech after the Uvalde massacre, supporting many "common sense" gun laws, President Biden even quoted from Scalia's Heller decision.
Biden did so, knowing full well that sometime this month, the Supreme Court is almost certain to expand the reach of Heller by finding unconstitutional a New York gun law which has been in effect since 1913 and requires someone carrying concealed weapon in public to have a permit.
Get ready to ride the New York subway, knowing that the person standing next to you may be legally packing heat.
Why can't Democratic politicians say openly, as best-selling author and prominent Chicago attorney Scott Turow recently wrote in Vanity Fair that, like Alito's draft abortion opinion, this is "originalist bunk."
Originalism/textualism was a political/judicial philosophy reverse engineered to reach reactionary results by claiming that generalized principles in the Constitution like "free speech" and liberty always and forever have the meaning they had in 1791 when black people were slaves, or in 1868 when the 14th Amendment was passed and most schools were segregated and women had no rights.
It has now been turned into the rationale for a Republican Supreme Court majority to enact an extreme right-wing political agenda, often opposed by a majority of the American people.
As corporations legally buy politicians, state legislatures suppress the vote and gerrymander districts, the Supreme Court allows states to force women to carry fetuses, and madmen to carry weapons of mass destruction, the president and congressional Democrats should at least have the courage to tell the truth.
Democrats need a Senate majority to confirm new Justices who will affirm human rights like a woman's right to choose and voting rights and reject turning America into an armed camp where 5-year-old school children need to be taught in prison-like schools how to avoid mass murderers. But first Democrats need to stand for something meaningful.