The Second Anniversary of Citizens United v. FEC

This Saturday, Jan. 21, 2012, is the second anniversary of the ruling in Citizens United v. Federal Election Commission, a ruling that said corporations have the same right as people to spend money in elections. 

For this anniversary, Demos assembled blog posts, articles, policy briefs, and multimedia in an effort to keep the heat on an issue essential to the health of our democracy.

10 Ways Citizens United Endangers Democracy	The American Prospect Special Report: Capitol Investments
Top Ten Nelson Take-Downs of Citizens United	Amicus Brief filed in Citizens United v. FEC

Articles:

• Citizens United Turns Two: Democracy Is Not a Game at The Huffington Post 

• Remarks Delivered at the New England School of Law on the Second Anniversary of Citizens United by Lisa Danetz

• Battle of the Supremes at The American Prospect

• Citizens United Was Just The End-Zone Dance

• This Week's Citizens United "Parade of Horribles"

• Straight Talk From Straight Shooters in Montana

• The Anatole France First Amendment of Citizens United? at the ACS Blog

Multimedia: 

• Corporations Are NOT People: Bob Herbert interviews author Jeff Clements

• Heather McGhee discusses SuperPACs on NOW with Alex Wagner

• Brenda Wright addresses the Conference on the Constitutional Convention

Learn more about days of action and other events at United4ThePeople.org >>>

Citizens United Was Just The End-Zone Dance

Jeffery Clements was at Demos for an event marking the New York launch of his new book, Corporations Are Not People. As a lawyer and cofounder of Free Speech for People, Clements has been one of the leading voices in the campaign for a constitutional amendment to overturn Citizens United. This book, rather than simply providing a limited guide on the harms of corporate political spending in elections, offers a much more profound reexamination of the role corporations play in American public life.

While Citizens United might look like an outlier in the Supreme Court’s First Amendment jurisprudence, Clements makes a very compelling case that the decision can be better understood as the culmination of a decades-long campaign to insulate corporate activity from democratic regulation and control.

This corporate rights agenda was first outlined in the 1971 Powell memo, a confidential memo written by former-tobacco industry lawyer and later Supreme Court Justice Lewis Powell to the Chamber of Commerce. Powell’s memo complained that corporations were under public attack by all kinds of public health and safety regulations, and he provided a decades-long strategy to construct an area of corporate rights that would no longer be subject to public laws that cut into their potential bottom lines. Powell was eventually appointed by President Nixon to the Supreme Court, where he began transforming the First Amendment into what Jedediah Purdy recently called an “anti-regulatory hammer.”

Continue reading Citizens United Was Just The End-Zone Dance >>>

This Week's Citizens United "Parade of Horribles."

In politics, when someone accuses another of “dragging out a parade of horribles” it’s usually to censure her opponent for doomsday exaggeration.  But, as we approach the second anniversary of the case (January 21), I can’t think of a more accurate term for what Citizens United has wrought for American politics. 

Let’s look just at the last week.

First, we had the continuation of a Republican primary that is by all accounts dominated by Super PACs.  The New York Times reports yesterday how multi-million dollar gifts to Super PACs from just one or a few fabulously rich donors have fundamentally changed the rules of the contest. Now, candidates without a grassroots base or field operation can stay in the race nearly indefinitely because one rich person wants it that way.

Most notable is the $5 million check that casino mogul Sheldon Adelson recently wrote to help Newt Gingrich's otherwise doomed candidacy -- money that is now enabling the Gingrich campaign to blanket South Carolina's airwaves with anti-Romney ads. But maybe even more disturbing are the new revelations of how John Huntsman's father has pumped millions a dollars into a Super PAC aiding his son -- even as the Huntsman campaign insists that it doesn't coordinate its activities with the group, Our Destiny (which would be illegal). One more negative consequence of Citizens United, it may turn out, is to allow the super rich to buy their children political offices -- much as the aristocracy of the Old World used to confer title and power on their progeny.

Then, on the very same day as the New Hampshire primary, GOP lawyers filed a brief urging a federal appeals court to build on the logic of Citizens United to eliminate the century-old ban on corporations making contributions to candidates (Citizens United “merely” allowed corporations to spend on their behalf—not enough corporate power for some). 

Corporations have no business playing in politics—through either “independent expenditures” or direct contributions—because translating economic success directly into political power is not a legitimate exercise in a democratic society. See my pre-Citizens United post elaborating on this point.

Continue reading This Week's Citizens United "Parade of Horribles" >>>

Straight Talk From Straight Shooters in Montana

When the Montana Supreme Court upheld its restrictions on direct corporate political spending, it showed a real-world understanding of politics and people which had somehow eluded the U.S. Supreme Court in 2010’s disastrous Citizens United. The Montana jurists recognized that corruption is real, and that facts are meaningful and necessary. The opinion put the lie to the legal fiction that money spent to elect or defeat a candidate – but not spent through the candidate, and thus referred to as “independent” spending – cannot lead to corruption.

Democratic governance can be corrupted, and fail to be responsive and accountable to voters, in ways far more invidious than the formalistic, unrealistic quid pro quo corruption that monopolized the attention of the five member majority of the Supreme Court responsible for Citizens United and its consequences. Justice Kennedy wrote that “there is only scant evidence that independent expenditures even ingratiate” and that “ingratiation and access, in any event, are not corruption.” However, he continued that “[i]f elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.”

The Montana Supreme Court has recognized that there is plenty of cause for concern.  Even a dissenting Montana judge said “I absolutely do not agree that independent expenditures can’t give rise to corruption. Of course it can.  Citizens United said the only governmental interest in preventing corruption is preventing quid pro quo corruption. This is simply smoke and mirrors. In the real world of politics the quid pro quo of direct contributions to candidates and indirect expenditures on their behalf is loyalty.”

This decision notes that “the factual record before a court is critical to determining the validity of a governmental provision restricting speech.” One result of the Montana court grounding its decision in facts is that when the court looked at the evidence, it found most of the plaintiffs’ claims of injury unsupported.  Though they asserted that their First Amendment rights to political participation were unduly burdened, some of the plaintiffs engaged in robust participation in Montana politics for years. The court also found some of their concerns regarding restrictions on their ability to speak through their corporate persona were not based in the law. The court found that one of the plaintiffs “failed to demonstrate that its speech was impaired by the statute”, and that another‘s speech was “not materially impacted by the statute”. 

This is refreshing when compared to the weightless burdens that the Supreme Court has recently found enough to defeat democratically enacted laws. For example, in Arizona Free Enterprise, plaintiffs failed to demonstrate that they would have spent money, but didn’t because of the ‘burden’ of a threatened response. Additionally, data from political scientists in that case showed an absence of a restrictive effect on speech.  Nevertheless, the Court found essentially that the mere assertion that speech might be burdened was a specter sufficient to overthrow campaign finance provisions adopted by the voters of Arizona. Justice Roberts wrote that “[a]s in Davis, we do not need empirical evidence to determine that the law at issue is burdensome.” But wholly speculative First Amendment claims ought not to succeed in defeating democratically enacted laws where the law is supported by sufficient state interests, such as fighting corruption and the appearance of corruption.

Continue reading Straight Talk From Straight Shooters in Montana >>>

The Anatole France First Amendment of Citizens United?

January 21, 2010 -- With today's decision in Citizens United, the Roberts Court has proudly unveiled the Anatole France First Amendment. "The law, in its majestic impartiality, forbids the rich and poor alike to sleep under bridges and beg in the streets," Anatole France famously wrote. After today, the First Amendment, in its majestic impartiality, will allow ordinary citizens and massive corporations alike to spend as much as they desire to elect their preferred candidates to office.

In a pre-argument blog on Citizens United, I pointed out how radically the scale of money in politics would change if the Court were to hold that the First Amendment outlaws any distinction between giant corporations and individuals when it comes to electoral spending. As the Solicitor General's supplemental brief in Citizens United explains:

During the 2007-2008 election cycle . . . FEC-registered political parties spent $1.5 billion, and federal PACs spent $1.2 billion, while the Fortune 100 companies had combined revenues of $13.1 trillion and profits of $605 billion. If those 100 companies alone had devoted just one percent of their profits (or one-twentieth of one percent of their revenues) to electoral advocacy, such spending would have more than doubled the federally-reported disbursements of all American political parties and PACs combined.

One of the most striking features of the majority opinion is thus the disconnect between its rhetoric - which frames the ideal of protecting the political arena from the terrible dangers of public oversight - and the reality - namely, the massive damage the decision itself will do to the political arena and the ideal of self governance by unleashing for-profit corporate treasury funds in the electoral sphere. At the heart of this disconnect is the deeply flawed assumption that political spending by an artificial, entirely state-created entity such as a for-profit corporation serves precisely the same function of self-expression and political actualization as it does for an individual person. The amicus brief that I helped author for the American Independent Business Alliance summarized the problems with that assumption as follows:

The governance system of . . . corporations is highly successful for the pursuit of profit, making them important instruments in the economic sphere. But the very factors that make the corporate form an effective instrument of wealth accumulation are the factors that make it inappropriate for corporations to claim the full panoply of First Amendment protections for political speech and participation that are enjoyed by natural persons. Because of the way corporations are structured, corporate speech does not express the political views of any individual or group of individuals associated with the corporation. Moreover, the constraints that drive a corporation's political speech - the requirement that corporate actions all must be calibrated toward profit - directly undermine the notion that a corporation can be a free participant in the marketplace of ideas. And precisely because a corporation enjoys significant state-created economic advantages designed for the narrow purpose of furthering wealth-accumulation, corporate participation in candidate campaigns promotes market entrenchment and corrupts the political marketplace in a fundamentally undemocratic manner.

Continue reading at the ACS blog >>>