Today, five members of the United States Supreme Court had their fun pretending that their hands were tied and that they were forced by objective reasoning to rule that corporations have the same right to participate in the political process as natural persons. I strenuously disagree. Today’s ruling of Citizen’s United v. Federal Election Commission [1] is extremely dangerous to our democracy. Many commentators are burning up the Internet with their written thoughts. I had previously posted on this case [2], citing to comments by the lawyers representing the two sides. I’ll make some more comments today, based upon the written opinion. I have not read the entire opinion, but I have read enough to understand the basic contours of the ruling.
What is the basis for today’s ruling in Citizen’s United? The majority argues that media corporations already had the practical power to say whatever they wanted, so it wouldn’t be fair to deny this same power to other types of corporations. Time to throw upon the doors! The majority argues that corporations would get around campaign laws anyway, so why keep trying? The majority naively argues that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.
Incredibly, the Court’s majority argues that just because massive amounts of speech financed by corporations may have influence over elected officials or give them access to elected officials, this does not mean that those officials will be corrupted. In making these arguments, the majority is contending that we only need to fear quid-pro-quo bribery. Yep. Sure. When a Senator gets big money from an industry and then pushes hard for industry-friendly laws, we just don’t know that that money had anything to do with the Senator’s position. To make that assumption would be rank speculation. And we don’t want to interfere with the flow of corporate money and favors to elected officials, even though it’s only the sacred core of our representative democracy [3] that is at stake. Truly, what could be more justified than taking any necessary step to make certain that power flows uncorrupted from the People, and that the laws that are passed are by the collective will of the People?
Imagine being in a courtroom where the defendant in your case walks up to the Judge and hands her $1,000 for the campaign for the upcoming election. The Judge smiles, and shakes the judge’s hand. Then they call your case. After a short hearing, the judge says “You lose!”. Of course it’s not absolutely certain that you lost because your opponent handed the judge a bunch of money. But it would break down all trust you might have had, that you were competing with only your ideas against your opponents ideas. Why would we ever allow such a system? The current private-monied method of electing federal office-holders is that same system.
The majority of the Supreme Court has argued that the appearance of influence or access will not cause the electorate to lose faith in this democracy. The Court upheld the duty of the corporation to identify itself in the ad. Great, now oil companies and Wall Street banks will create spin-off corporations with names like “Citizens for Freedom and Prosperity,” and this kind of name will be clearly disclosed in the upcoming swiftboat ads. It’s hard to believe that educated people can think that a decision like this won’t steal what’s left of the people’s ability to make an informed decision.
The Supreme Court majority was defensive in its opinion, suggesting throughout that “the law” required today’s outcome. That’s always the case that terrible decisions (and great ones) are portrayed to be compelled by something out of the control of the judges–something that compels them from above. The law made me do it! Precedent made me do it! But make no mistake; The Court always had the power to make this decision either way and to justify it with dozens of prior cases. If you’re in doubt on this point, read the dissent by Justice Stevens. There is no meaningful hurdle to stop the Supreme Court when it wants to make bad law. Keep in mind that this is a Court that has made more than its fair share of terrible decisions (and great ones too). For example, this is the same Court that ruled that Dred Scott was property. Yes, there are always lots of reasons for doing whatever the Court chooses to do, even though the belief that artificial organizations had constitutional rights has a long and tortured history. [4] It has always been on wobbliest of legal legs.
Citizen’s United is based on a fiction that citizens of the United States will be able to make intelligent decisions at the polls even when huge piles of corporate money fund ubiquitous and cleverly-crafted corporate-friendly messages leading up to the election, so much so that the corporate money drives the non-corporate message to insignificance, or even to functional invisibility. Once the next-generation of thoroughly corporate candidates takes office, it won’t be long before the FCC completely denies net neutrality [5], making the telecoms the officially appointed gate-keepers of the Internet, to go along with their current all-but-complete control of the mainstream media. Once all meaningful media is in the hands of corporations, there is no way to effect change other than revolution in the streets. In short, I see today’s decision as a slippery slope that can peacefully be reversed on a short clock, before they have their chance o rename the two Houses of Congress the Dow Jones House and the NASDAQ House.
In his dissent, Justice Strevens was highly critical of the majority’s “profoundly misguided” opinion. It is a long opinion, but well worth scanning. He points out that it is “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment on this basis, without first confirming that the statute in question was intended to be, or will function as, a restraint on electoral competition.” With repeated great restraint, he notes that majority’s “crabbed view of corruption.” Stevens harpoons the majority’s “original intent” arguments based on undeniable historical events. And as far as whether there is any conceivable reason why we should treat natural persons differently than corporations in the context of campaign expenditures, Stevens has this to say:
In the context of election to public office, the distinction between corporate and human speakers is significant.Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
I will work hard to support any effort to reverse today’s decision. It might well be that getting the job done will require an amendment to the United States Constitution. I suspect that many groups are busy considering appropriate language. That language will need to cover more than corporations. It will need to cover any other type business association. The bottom line is that the right to select representatives and hold the government accountable needs to be reserved to natural human beings. Perhaps the Amendment will take a form similar to this [6]:
SECTION 1. The U.S. Constitution protects only the rights of living human beings.
SECTION 2. Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.
SECTION 3. Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.
SECTION 4. Congress shall have power to implement this article by appropriate legislation.
As I mentioned in the title of this post, today’s decision might just be over the top for the majority of Americans, even those who have been complacent about most things for years (evidenced by our generally poor voter turn-outs). Maybe this is the issue on which a large majority of Americans will rise up and say that they’ve had enough with corporate influence in our government. Maybe this decision will incite the majority of Americans to say that they are sick and tired of corporations heavily influencing when we go to war and when to bail themselves out with our tax-dollars. Or maybe I’m just seeing life through rose-colored glasses. Maybe most Americans won’t give a crap that their federal government is completely run by corporations, as long as the citizens are well-distracted with TV and well-fed with processed food.
I see today’s decision as a litmus test: There will eventually be (maybe within a month) a well-written proposed Constitutional Amendment to fix the problem. Then the spotlight will shine brightly on each and every federal representative and they will be asked to answer this question: Who do you think you represent? Businesses or human beings?
I’m afraid that I know the answer–that we won’t get 2/3 of the U.S. House and the U.S. Senate to pass the proposed amendment (which would then need to be approved by 3/4 of the states). But perhaps not all is lost. After all, there are two ways to get a proposed amendment off the ground in order to Amend the U.S. Constitution. [7] We might not need to rely on the current members of Congress to get the proposed amendment to the states. The second method of passing a proposal to amend the U.S. Constitution can be accomplished by 2/3 of the state legislatures (or state conventions).
Or we could wait for a long time in order that new Justices will replace the current conservative Justices. That might never happen. We could be living with Citizens United for decades.
There is another potential solution that I have proposed from time to time on this site [8]. It requires enacting “clean money” campaign laws, i.e., public funding of political campaigns. A handful of states have such funding for state elected officials, and this sort of law would allow regular folks (not just well-connected people, or celebrities or rich people) to have the opportunity to meaningfully run for elected office. Lawrence Lessig has long supported this approach and continues to do so in light of today’s ruling:
The hurdle with this approach (here is Lessig’s version of the proposed law [9]) is that you need the current members of Congress to pass it.
In the meantime, we’re about to witness a massive increase in the kind of corruption that doesn’t exist, according to the majority of the U.S. Supreme Court. Even if you are a U.S. citizen, it’s not your country any more. You simply live here.
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