Two Years Later: Showdown With ‘Citizens United’

Two Years Later: Showdown With ‘Citizens United’

Two Years Later: Showdown With ‘Citizens United’

As we approach the second anniversary of the disastrous Citizens United decision, a court case in Montana sets up the first direct challenge to the ruling.


On December 30, the Montana Supreme Court delivered a New Year’s gift to the nation, upholding a century-old ban on corporate political expenditures in state elections. The decision has gone underreported amidst the hoopla of the Republican primaries—even as Super PAC spending skyrockets and there is an emerging understanding of its corrosive impact—but the Montana case sets up the first direct challenge to the disastrous Citizens United decision as we approach its second anniversary.

Free Speech For People—a national nonpartisan campaign challenging the fabrication of corporate rights under the US Constitution—filed a friend-of-the-court brief in the Montana case. It led a coalition that included the American Sustainable Business Council, a network of more than 70,000 businesses across the country; the American Independent Business Alliance; and a local supermarket business and nonprofit corporation.

Jeff Clements is the author of the coalition’s brief. Co-founder and general counsel of Free Speech, Clements did two stints as assistant attorney general in Massachusetts, litigating in the areas of civil rights, environmental protection, healthcare, insurance and financial services, antitrust and consumer protection, and taking on the tobacco industry. He’s also the author of a new book, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It. This is a book that anyone who cares about taking back our democracy of, by and for the people must check out.

Clements tells a vivid story of how some of the largest corporations organized to take over our government and Constitution, culminating with the Citizens United decision. He also lays out a vision of how we can return democracy to the people.

As Bill Moyers notes in the book’s Foreword, this isn’t the first time a Supreme Court has served as a “procorporate conservative fortress”: in 1905 it killed a New York state law limiting working hours, and a prohibition against child labor about a decade later; it ruled against a minimum wage law in 1923, and early New Deal recovery acts in 1935 and 1936.

“But in the face of such discouragement, embattled citizens refused to give up,” writes Moyers. “Every day citizens researched the issues, organized public events to educate their neighbors, held rallies, made speeches, petitioned and canvassed, marched and exhorted. They would elect the twentieth century-governments that restored ‘the general welfare’ as a pillar of American democracy.”

Clements book, writes Moyers, describes “how to fight back”—as our forebears have done so many times before—in this case, through a constitutional amendment declaring what Clements calls “the simplest of propositions: corporations are not people.” (Clements also calls for corporate accountability, and corporate charter and election law reform, including increased public funding.)

Citizens United is a corporate power case masquerading as a free speech case,” writes Clements. “We do not have to live with this. We can put the American project back together.”

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 Maryland State Senator Jamin Raskin, professor of constitutional law and the First Amendment at American University’s Washington College of Law, says, “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.”

It’s a long haul, and groups working towards that end—including Public Citizen, the Center for Media and Democracy, Move to Amend, Common Cause, People For the American Way and others—would be smart to agree on exactly what the amendment’s language is and make it simple, clear, and appealing. After all, it’s tough to organize a united front around the country when there are multiple versions of the same amendment.

Raskin and some of his colleagues in the Maryland General Assembly are sending a letter to Congress urging that it swiftly pass a constitutional amendment and send it out to the states for ratification. Lawmakers and activists will rally in front of the State House on Thursday to ask that every Assembly member sign on. The hope is that this effort will kick off a national movement at the state level to press the amendment case.

Other local jurisdictions are also pursuing that strategy, including the city councils of Los Angeles, Oakland, New York, Albany, Duluth and Boulder, which have all passed resolutions opposing Citizens United. In Congress, a number of representatives have introduced resolutions seeking a constitutional remedy, including: Donna Edwards; Senator Tom Udall and Representative Betty Sutton; Representative Ted Deutsch and Senator Bernie Sanders; Representative Jim McGovern; Representative John Yarmuth and Republican Representative Walter Jones; Representative Keith Ellison and others. Kudos to these senators and congressmen for their good proposals, and—as with the pro-democracy advocacy organizations—the more they are able to agree on the language of an amendment, the more easily citizens will be able to rally around it.

But as undisclosed corporate money continues to flood our elections and drown out the voices of ordinary Americans, it’s important to remember that we need to walk and chew gum at the same time, and not solely focus on the amendment fight. That means building on successful public campaign financing systems already on the books in places like Arizona, Connecticut, Maine and North Carolina, bringing those models to other states. In Congress, the Fair Elections Now Act would allow federal candidates to run for office without relying on Big Money as well—force Republicans and conservative Democrats to go on record opposing it, and if it eventually passes and the Supreme Court shoots it down that will only galvanize the public.

With the Montana Supreme Court decision and public anger toward a political and economic system devoted to serving the 1 percent, this is a moment to dig in and organize for a cleaner, more democratic way. On January 20 and 21 activists across the country are organizing to protest Citizens United and urge a constitutional amendment. Will you join in the effort?

Editor’s note: This post has been updated to include the most recent legislative efforts to repeal Citizens United.

You can access all of The Nation‘s coverage of Citizens United by clicking here.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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