Earth and the Balance of Powers: What the Citizens United Ruling Means for the Environment

During the past decade, all three branches of American government -- Judicial, Legislative and Executive -- have acted to expand the influence of corporations in elections. The Supreme Court's recent decision in Citizens United vs. Federal Election Commission further tips the balance of power away from the individual voter, perhaps with significant impact on our democracy. Furthermore, this decision may portend doom for environmental protection if corporate influence expands and short-term profit takes even greater precedence over long-term environmental health.

Judicial Branch Undermines
Legislative Branch's Efforts to Curtail Corporate Power

In 2000, then-Governor George W. Bush narrowly won the presidential election courtesy of the U.S Supreme Court handing him Florida's electoral votes before that state's election recount was even finished. In Bush v. Gore, the Court, deeming Florida's recount process unconstitutional, ordered an immediate cessation of the state's recount, effectively giving Bush the presidency despite Al Gore winning the nation's popular vote by approximately 500,000 votes.

While the Court can be blamed for only the first four years of his presidency, President Bush brought eight years of unparalleled environmental deregulation, lack of enforcement and permitted pollution. Bush even managed to undermine his own father's environmental legacy by abusing the Clean Air Act Amendments of 1990, which his father signed into law to reduce smog and atmospheric pollution.

A new decision by the Court now threatens to ensure that Bush's legacy of deregulation and corporate power over environmental protection will endure. Struggling to deliver on his promises to change the impact of Bush's corporate greed over public need agenda on the country, President Obama lamented that he now faces a new challenge: " ... the United States Supreme Court handed a huge victory to the special interests and their lobbyists -- and a powerful blow to our efforts to rein in corporate influence. This ruling strikes at our democracy itself."

In Citizens United, the Court overturned more than a century of law and bipartisan campaign finance legislation written by U.S. Senators John McCain (R-NM) and Russ Feingold (D-WI), ruling that corporations have a First Amendment right to free speech that encompasses and protects advertisements advocating a particular candidate right up to an election's eve. The Court left alone the restriction on corporations making direct contributions to candidates recognizing a significant governmental interest in protecting quid pro quo corruption.

The danger with corporations having unlimited spending on electioneering is that it makes candidates more beholden to these special corporate interests to get elected and may distort the issues in favor of profit driven institutions that can afford to blanket the market place of ideas with their own. It is naive or worse of the Court to throw out as insignificant the hundreds of pages of Congressional testimony that went into the law-making process leading to the McCain-Feingold limitations on campaign spending. Corporations are not just citizens united to make protected speech, but artificial structures entitled to legal and tax advantages different from individual citizens and, unless corporations are specifically classified as not-for-profit, they exist for the avowed purpose of making money-not advocating policy. They speak for their shareholders only for the purpose of returning profit to those shareholders. They clearly have many advantages during an election period, possessing a unique ability through their wealth and access to selectively magnify or distort a message that is not really reflective of the general population or even the persons that make up the corporation. Congress clearly understood this unfair advantage when it passed the McCain-Feingold protections.

More corporate influence on elections means it will be harder for Congress to withstand the pressure of the oil, manufacturing and coal industries, which already have made bipartisan progress on climate change solutions extremely challenging. It will be even more difficult for progressive legislators to get elected and to pass environmental legislation without acquiescing to those interests with the deepest pockets. When our legislative and executive branches are for sale through relatively unlimited corporate spending, we will elect hired guns, not leaders who are willing to resist corporate prerogatives in order to fight injustice.

Senator Charles Schumer (D-NY) observed, "[The Court's] ruling, decided by the slimmest of majorities, guts our system of free and fair elections. The bottom line is this. The Supreme Court has just predetermined the winners of next November's elections. It won't be Republicans. It won't be Democrats. It will be corporate America."

With More Corporate Pressure on Congress,
All Hope Rides on Executive Branch

One of the topics of governance most sensitive to corporate pressure is our environment. The corporations invested in fossil fuels are no less powerful today despite Obama's efforts to shift the dialogue and the nation's agenda from the familiar conservative rubric of the economy versus the environment to a new ideal of a green economy that grows through investment in sustainable energy and technology. These interests weigh heavily on congressional decision makers, especially from states where coal or oil literally fuel the lifeblood of their state economies. Increased political power to the giants of traditional fuel and technologies will only amplify pressure to vote on their behalf, especially in a time of recession when investment in sustainable new technology may take longer to recoup than terms in office or in the executive suite.

With legislative safeguards less likely, hope for environmental progress will be through administrative action under the auspices of Lisa Jackson, Obama's head of the Environmental Protection Agency (EPA). Administrator Jackson, who grew up in Louisiana not far from the toxic corridor known as cancer alley where petrochemical companies have perennially dumped their poisons while buying influence in the state capitol, knows the realities of corporate influence to the detriment of the people. In her office, Jackson keeps a copy of Dr. Seuss's The Lorax, perhaps the best known parable illustrating the dangers of putting industrial profit before protection of the environment. "The American people can be outraged when we're not living up to the P part of our name. The Protection part," says Jackson.

When there is so much at stake in the context of environmental protection, much of Jackson's first year has been dedicated to reversing industry-favoring policies of Bush's administration. Within a week of taking office, Obama ordered the EPA to reconsider Bush's policy of preventing states from implementing stricter standards for tailpipe emissions than dictated by federal law. The Bush-era policy stemmed from that administration's siding with auto manufacturers in opposition to public health experts in order to undercut California's law requiring a 30% reduction in average emissions. Obama's EPA is currently implementing new protective smog rules like California's across the nation.

Jackson also used her first year at the EPA to embark on an aggressive campaign to clean up the nation's air and drinking water. Jackson revoked patently illegal Bush-era rules like the one allowing oil refineries to report emissions by smokestack instead of by refinery in order to circumvent air quality regulations. Jackson also reversed a Bush administration permit for the nation's largest mountaintop-removal coal mine.

Perhaps most significantly, Jackson's administration announced its intention to shift the EPA's focus from industrial concerns to issues of environmental justice. The first case on the agenda in this new direction takes the EPA to an impoverished California migrant farming community where a cluster of facial birth defects and other health issues may be linked to a nearby toxic waste dump. The EPA's Pacific Southwest Regional Administrator announced, "Our job is to make sure that we look under every rock and try to see if there is a relationship between all these activities and the health impacts on the ground. We need to provide real information, based on science, not just from the company proposing a project."

The revitalized EPA mandate extends from issues of local environmental justice for those with the least political power, like the migrant farm workers, to issues that impact the entire planet, like climate change. Responding to the international call for cooperation on climate change solutions, Jackson has expanded EPA's mandate to include bold new initiatives to crack down on climate-warming pollution from cars and industry.

The poor environmental condition and lenient Bush-era rules that Jackson inherited "requires that we use our time and resources to look back when we absolutely need to be moving ahead," she says. And moving ahead is what the world is requiring of America as we tackle the global problem of climate change. "If Congress doesn't pass legislation on climate change, EPA will follow through under the requirements of the Clean Air Act," says Carol Browner, Obama's climate czar.

Environment Teetering in the Balance

So the environment hangs in the balance of governmental powers. Which branch will have the strength to protect us from our worst impulses to put corporate profit over the future of our planet and humankind? Congress is paralyzed by political infighting that prevents bipartisan solutions and an economic crisis that seems to put the environment in further jeopardy. The Supreme Court with its current makeup is actively protective of corporate power. Unless Obama gets re-elected, the Executive Branch with Jackson wearing her capital P for environmental protection, has only three more years to undo a lot of damage and to stem climate change.

Al Gore tells a story in Earth in the Balance describing how the George H. W. Bush administration calculated the value of our environment:

"When President Bush welcomed an international conference on the global environment in the spring of 1990, his staff prepared materials for the visiting negotiators that contained a graphic illustration of the administration's approach to balancing short-term monetary gains against long-term environmental destruction. In the illustration, several bars of gold rested on one tray of a scale; on the other tray perched the entire earth and all its natural systems, seemingly with a weight and value roughly equivalent to the six bars of gold. A scientist, or perhaps an economist, is noting the careful balance on her clipboard. Although several delegates from the other countries commented privately that it seemed to be an ironic symbol of Bush's approach to the crisis, the president and his staff seemed wholly oblivious of the absurdity of the willingness to put the entire earth in the balance."

The problem with allowing corporate interests to sway environmental decision making is that their calculations are often weighted entirely toward short-term profit without evaluating the cost of losing the resources that we all depend upon for survival. We have a significant interest, the interest of survival, in protecting decision making from the bias of monetary enrichment. The voice of the people, and the voices of future generations, deserve protection against the voices of corporate greed. Obama proposes crafting a legislative response to the Citizens United ruling. Let us hope, for everyone's sake, that our governmental system of checks and balances is restored to support democracy and the wellbeing of our planet.