Today, Americans headed to the polls for a variety of local and statewide elections, exercising the franchise that is at the heart of American democracy. Many media accounts have detailed how a last-minute flood of secret outside money fueled campaigns in states like Ohio and Iowa. Some of it comes from the very organization for which the Supreme Court’s decision to allow unlimited corporate contributions is named, Citizens United v Federal Election Commission.
Aside: if you’ve read this far and the mere mention of that case makes you apoplectic, then RSVP right now for one of tomorrow night’s organizing parties geared at overturning it. Or sign up to host one! It’s definitely not too late; we’re at well over 200 gatherings and growing!
One thing that doesn’t get covered as much in that conversation, and which I’ll now briefly spotlight: how Citizens United has changed the playing field when it comes to judicial elections. It’s a trend that fuels the very corrosion of our democracy that the Supreme Court in Citizens United brushed aside, something that “We, the People” now must rectify.
The Brennan Center for Justice at NYU School of Law documented how this has played out in a report, The New Politics of Judicial Elections: 2009-2010. The report was published last month, in partnership with the Justice at Stake Campaign and the National Institute of Money in State Politics. Essentially, the report boils down to this: in states where the judiciary is subject to popular election or to “retention” votes, a flood of special-interest money has increasingly politicized what the Framers envisioned as our least political branch of government.
As the report details, judicial retention elections in places like Iowa, rarely the site of pitched battles in the past, have moved toward becoming high-dollar battlegrounds flush with outside special-interest money. More broadly, 2009-2010 became the highest-spending cycle in history, by far, on all judicial election campaigns. The Brennan Center carefully and persuasively traces this all to a “coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law.”
In his keynote address at Public Citizen’s 40th Anniversary Gala last month, journalist Bill Moyers quoted an eminent historian of the American Revolution, Gordon Wood, about how American democracy paved the way for others after it “by creating a prosperous free society belonging to obscure people with their workaday concerns and their pecuniary pursuits of happiness.” (Those words speak me in particular because I had the privilege of taking two of Professor Wood’s lecture courses when I was in college.)
Wood’s words also speak to me, as they did to Moyers, because they sum up the notion that “We the People” are the fundamental creators and beneficiaries of American democracy, with judges serving as the trusted mechanism for honestly interpreting our laws and Constitution. It’s that theme that animates the Brennan Center’s criticism of post-Citizens-United spending on judicial elections, and of just what that means for our democracy.
I’m currently reading Professor Wood’s latest book, a collection of essays and speeches titled The Idea of Liberty: Reflections on the Birth of the United States. In his essay on “The Making of American Democracy,” Wood notes that in our recent history “Many Americans became concerned with large and unequal campaign contributions precisely because they seemed to negate the effects of equal suffrage and violate the equality of participation in the political process.”
We can now add to that list of concern, sadly, the undermining of the very judiciary that so often serves as a critical backstop on behalf of the Constitution and the law. Judges are subject to the same troubling leverage as members of the other two branches of government under the post-Citizens-United regime. The threats of spending on their opponents, their non-retention in office, and even politically-motivated calls to impeach them—all of the above are documented in this latest report, and undermine the independent judiciary’s vital role.
It doesn’t have to be this way. Our democratic society, rooted in the people, remains despite this corrosion on elections and on the judiciary, and it has an essential mechanism by which to reassert itself: amending the Constitution to prevent corporate control of our elections.
So read the full report on judicial elections if you’ve got a few minutes. Reflect on what this means for the vote you may have just cast today. And then dry your eyes, and join a house party tomorrow.
Sean Siperstein is a Legal Fellow with the Democracy is For People campaign.