The Citizens United campaign finance decision by Chief Justice John Roberts and a Supreme Court majority of conservative judicial activists is a dramatic assault on American democracy, overturning more than a century of precedent in order to give corporations the ultimate authority over elections and governing. This decision tips the balance against active citizenship and the rule of law by making it possible for the nation’s most powerful economic interests to manipulate not just individual politicians and electoral contests but political discourse itself. As such, it demands a vigorous response, uniting progressive activists and good-government reformers of every stripe along with those conservatives who are also troubled by the decision. We must now fight for legislative and constitutional remedies to this threat to the American experiment.
By awarding to corporations the rights of citizens when it comes to electioneering, the Court’s decision in Citizens United v. Federal Election Commission goes against the intent and understanding of founders like Chief Justice John Marshall, who referred to the corporation as an "artificial being, invisible, intangible"; and Thomas Jefferson, who warned almost two centuries ago that America must "crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." Dissenting Justice Ruth Bader Ginsburg spoke as a strict constructionist when she declared during oral hearings on the case that "a corporation, after all, is not endowed by its creator with inalienable rights." Unfortunately, the majority dismissed Ginsburg’s wise counsel and issued what Senator Russ Feingold, the Wisconsin Democrat who chairs the Constitution Subcommittee of the Senate Judiciary Committee, correctly characterized as a "lawless" decision. President Obama was right on point when he said, "I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections."
The High Court’s rejection of the ban on direct political spending by businesses, industry associations and their surrogates, and of limits on the amount of money they may spend on campaigning, sets up a dystopia in which our elections–including this year’s critical Congressional and state contests–could become little more than Super Bowl games, with corporations spending whatever it takes to sell their products, er, candidates.
Already the Chamber of Commerce is promising to unleash the "largest, most aggressive" election-season spending spree in the organization’s history. Chamber officials promise to "highlight lawmakers and candidates" who toe the corporate line and "hold accountable those who don’t." The savvier corporate players will not be so bold in their pronouncements–they know that the mere threat of a corporate onslaught for or against a candidate or party is enough to win legislative favor, in effect blunting the prospects for sound regulation, consumer protection and fair tax policies–let alone significant healthcare, housing, education or workplace reform.
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While it is true that labor unions will also be freed to spend for their preferred contenders, it is absurd to suggest that unions–with combined assets barely equal to the combined annual compensation packages of any two of the largest investment banks–could come anywhere near the massed might of corporate capital. While it is true that some corporations have objected to the ruling because they think it will increase pressure on them to shell out campaign donations–a practice they rightly abhor as little more than a protection racket–most firms will consider political donations to be an acceptable price of doing business. And there is no combination of progressive forces that will be sufficient to counter bad private spending with good. "The real bad news is for people who want healthcare legislation, people who want legislation that will protect our environment, people who want…to make sure that banks are their friends, not their enemies," says Public Campaign’s Nick Nyhart, who argues that for progressives reform is now "a prerequisite."
But this is about more than Democrats and progressives. The constraints on corporate campaign spending that the Court struck down were not put in place by liberal do-gooders or Democrats trying to gain election-season advantage. It was a Republican president, Teddy Roosevelt, who was so worried about the power of the trusts that he called for public financing of elections and told Congress, "All contributions by corporations to any political committee or for any political purpose should be forbidden by law." Roosevelt did not get as much reform as he wanted or as was needed, but in 1907 he did sign the Tillman Act, which banned corporate donations to federal campaigns. Corporations and their political handmaidens have maneuvered for a century, often with considerable success, to get around that law and later reforms, such as the McCain-Feingold bill of 2002, which the Citizens United decision partly overturned. But few imagined they would ever be given the sort of blank check the Court has now provided with its ruling that, to Senator Feingold’s reading, says corporations "can just open their treasuries [and] just completely buy up all the television time, and drown out everyone else’s voices."
Roberts and his allies overreached so aggressively that they have created an opening for real reform. Key members of Congress, including Senator Charles Schumer and Representative Chris Van Hollen, are moving quickly to organize hearings and craft legislative responses that address the Citizens United decision. Promising steps include requiring shareholder approval of corporate campaigning; forcing CEOs to take personal responsibility for ads purchased with company funds; and making sure that spending by US subsidiaries of foreign corporations is identified as such and barred just as is spending by foreign corporations and individuals.
But Democratic leaders must also recognize that such initiatives, however helpful, are mere triage. Congress must redouble efforts to pass strong reforms this year; in particular, it should enact the bipartisan Fair Elections Now Act, which bars Congressional candidates from accepting contributions larger than $100 and allows them to run honest campaigns with a blend of small donations and public funds. This legislation has attracted 127 backers in the House and six in the Senate (including majority whip Dick Durbin). The crisis created by the Court’s ruling should provide the impetus for moving this bill forward–ideally with amendments or parallel legislation designed to counter the influence of corporate spending. In particular, broadcasters, which stand to reap immense profits from the new wave of corporate political advertising, should be required to provide free airtime to candidates. Common Cause president Bob Edgar is right when he argues that the best immediate response to a decision that "allows Wall Street to tap its vast corporate profits to drown out the voice of the public in our democracy" is to "change the way that America pays for elections [by] passing the Fair Elections Now Act."
The brazenness of the Court’s decision, and its apparent goal of expanding corporate power’s grip on our politics and society, demands a bolder reply. We must recognize this long-term threat. If we do, it will impel even many of the most cautious to join the historic debate over corporate personhood–a debate with roots in the Santa Clara County v. Southern Pacific Railroad Company (1886) decision, which in the words of Justice William O. Douglas "armed [corporations] with constitutional prerogatives" never imagined or intended by the founders. At the hearing on Citizens United, Justice Sonia Sotomayor suggested that instead of expanding the supposed First Amendment rights of corporations, the justices should reconsider the misguided Santa Clara ruling, which "gave birth to corporations as persons." Added Sotomayor, "There could be an argument made that that was the Court’s error to start with." The current Court won’t address this error of law and judgment, but Congress and the American people can.
The clearest and boldest counter to the Court’s ruling is a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. As Lisa Graves, a former Justice Department and Senate Judiciary Committee attorney, puts it, "We have to rebuke the Court’s arrogant decision and make sure the law puts Americans before corporations." Graves, who now serves as executive director of the Center for Media and Democracy, backs an amendment stating, "No corporation shall be considered to be a person who is permitted to raise or spend money on federal, state, or local elections of any kind." Democracy activists are already organizing along the lines she suggests (go to TheNation.com for links to smart web initiatives such as movetoamend.org and freespeechforpeople.org).
Campaigns for constitutional amendments demand patience and a great deal of tenacity, since they must first secure supermajority support from both houses of Congress and then win ratification by three-quarters of the states. But as Jamin Raskin, professor of constitutional law and the First Amendment at American University’s Washington College of Law, points out, "American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy’s enemies, whether they are slavemasters, imposing poll taxes on voters or the opponents of woman suffrage." And the genius of amendment campaigns is that they provide unique opportunities to educate citizens, put elected officials on the record and advance legislative reforms–just ask the antiabortion crusaders who over the past thirty-seven years have used an amendment strategy to take over the Republican Party and build a powerful movement that continues to strike fear in plenty of Democrats. Still, no one wants to spend decades building a movement for an "Americans Before Corporations" amendment. That’s why it is especially encouraging that major or-ganizations such as Public Citizen and People for the American Way have already committed themselves to this strategy, as have savvy legislators like Representative Donna Edwards.
Edwards plans to introduce an amendment in the House, the route that is best known. Others, including many who are skeptical about whether this Congress can or will act boldly, propose a constitutional convention, which would be called into being by state legislatures and could then generate an amendment that would go back to the states for ratification. There ought not to be conflict here, as it should be possible to build a coordinated movement in which parallel campaigns for an amendment and a convention build on one another and gain attention.
The fight for an amendment to the Constitution, however we get there, must make absolutely certain that corporations cannot simply buy our local, state and federal governments. This is too vital an issue for our democracy to allow delays, infighting or caution to rule the day.
The Nation is committed to the struggle as one that is in the noblest traditions of this magazine. We will do everything in our power to further it, with no quarter for cynicism or compromise. We will encourage the development of a transformational movement to protect free elections and free government, and will do so with the understanding that the cause is not a narrowly partisan one, or a project merely of progressives, but of all who want democracy to flourish.
This must be a movement rooted in the values of Jeffersonian democracy and the wisdom of Teddy Roosevelt, who reminded us more than a century ago that when the country was founded, "it was accepted as a matter of course that the several States were the proper authorities to regulate, so far as was then necessary, the comparatively insignificant and strictly localized corporate bodies of the day. The conditions are now wholly different and wholly different action is called for. I believe that a law can be framed which will enable the National Government to exercise control…. If, however, the judgment of the Congress is that it lacks the constitutional power to pass such an act, then a constitutional amendment should be submitted to confer the power." Roosevelt’s faith in the authority of Congress to regulate corporate power has been formally and fully challenged by the lawless intervention of the Roberts Court. This is not the time to give up on legislative remedies. But it is the time to recognize that a constitutional amendment must be submitted in order to reassert the citizen power that is the underpinning of democracy.