An Occupy Wall Street activist stands with a dollar bill over his mouth during demonstrations on the one-year anniversary of the movement in New York, September 17, 2012. REUTERS/Lucas Jackson
“And may the odds be ever in your favor.”
—Effie Trinket, announcer for the corporate state in The Hunger Games
We live in what will surely come to be called the Citizens United era, a period in which a runaway corporatist ideology has overtaken Supreme Court jurisprudence. No longer content just to pick a president, as five conservative Republicans on the Rehnquist Court did in 2000, five conservative Republicans on the Roberts Court a decade later voted to tilt the nation’s entire political process toward the views of moneyed corporate power.
In Citizens United (2010), the Court held that private corporations, which are nowhere mentioned in the Constitution and are not political membership organizations, enjoy the same political free speech rights as people under the First Amendment and may draw on the wealth of their treasuries to spend unlimited sums promoting or disparaging candidates for public office. The billions of dollars thus turned loose for campaign purposes at the direction of corporate managers not only can be but—under the terms of corporate law—must be spent to increase profits. If businesses choose to exercise their newly minted political “money speech” rights, they must work to install officials who will act as corporate tools.
The Court, transformed by the addition of Chief Justice Roberts and Samuel Alito, who were nominated by that lucky winner in Bush v. Gore, took this giant step to the right of all prior Courts without even being asked to do so. The petitioner, Citizens United, sought only a ruling that the electioneering provisions of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) didn’t apply to its on-demand movie about Hillary Clinton. But the conservatives sent the parties back to brief and argue the paradigm-shifting constitutional question they were so keen to decide. As dissenting Justice John Paul Stevens observed, the justices in the majority “changed the case to give themselves an opportunity to change the law.”
Before Citizens United came down, corporations were already spending billions of dollars lobbying, running “issue ads,” launching political action committees and soliciting PAC contributions. Moreover, CEOs, top executives and board directors—the people whose income and wealth have soared over the past several decades in relation to the rest of America—have always contributed robustly to candidates. But there was one crucial thing that CEOs could not do before Citizens United: reach into their corporate treasuries to bankroll campaigns promoting or opposing the election of candidates for Congress or president. This prohibition essentially established a wall of separation—not especially thick or tall, but a wall nonetheless—between corporate treasury wealth and campaigns for federal office.
The Roberts Court’s 5-4 decision to demolish most of this wall also bulldozed the foundational understanding of the corporation that had governed American law for two centuries. The Court had always regarded the corporation not as a citizen with constitutional rights but as an “artificial entity” chartered by the states and endowed with extraordinary privileges in order to serve society’s economic purposes. The great conservative Chief Justice John Marshall wrote in Dartmouth College v. Woodward (1819), “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence.”