Yesterday, in the case Citizens United v. FEC, the U.S. Supreme Court ruled that corporations have a First Amendment right to spend unlimited amounts of money to influence election outcomes.
Money from Exxon, Goldman Sachs, Pfizer and the rest of the Fortune 500 is already corroding the policy making process in Washington, state capitals and city halls. Now, the Supreme Court tells these corporate giants that they have a constitutional right to trample our democracy.
In eviscerating longstanding rules prohibiting corporations from using their own monies to influence elections, the court invites giant corporations to open up their treasuries to buy election outcomes. Corporations are sure to accept the invitation.
The predictable result will be corporate money flooding the election process; huge targeted campaigns by corporations and their front groups attacking principled candidates who challenge parochial corporate interests; and a chilling effect on candidates and election officials, who will be deterred from advocating and implementing policies that advance the public interest but injure deep-pocket corporations.
Because the decision is made on First Amendment constitutional grounds, the impact will be felt not only at the federal level, but in the states and localities, including in state judicial elections.
In one sense, the decision was a long time in coming. Over the past 30 years, the Supreme Court has created and steadily expanded the First Amendment protections that it has afforded for-profit corporations.
But in another sense, the decision is a startling break from Supreme Court tradition. Even as it has mistakenly equated money with speech in the political context, the court has long upheld regulations on corporate spending in the electoral context. The Citizens United decision is also an astonishing overreach by the court. No one thought the issue of corporations' purported right to spend money to influence election outcomes was at stake in this case until the Supreme Court so decreed. The case had been argued in lower courts, and was originally argued before the Supreme Court, on narrow grounds related to application of the McCain-Feingold campaign finance law.
The court has invented the idea that corporations have First Amendment rights to influence election outcomes out of whole cloth. There is surely no originalist interpretation to support this outcome, since the court created the rights only in recent decades. Nor can the outcome be justified in light of the underlying purpose and spirit of the First Amendment. Corporations are state-created entities, not real people. They do not have expressive interests like humans; and, unlike humans, they are uniquely motivated by a singular focus on their economic bottom line.
Corporate spending on elections defeats rather than advances the democratic thrust of the First Amendment.
We, the People cannot allow this decision to go unchallenged. We, the People cannot allow corporations to take control of our democracy.
There are some things that can be done to mitigate the damage from today's decision.
First, we must have public financing of elections. Public financing will give independent candidates a base from which they may be able to compete against candidates benefiting from corporate expenditures. We will intensify our efforts to win rapid passage of the Fair Elections Now Act, which would provide congressional candidates with an alternative to corporate-funded campaigns before fundraising for the 2010 election is in full swing. Sponsored by Sen. Richard Durbin, D-Illinois, and Rep. John Larson, D-Connecticut, the bill would encourage unlimited small-dollar donations from individuals and provide candidates with public funding in exchange for refusing corporate contributions or private contributions in amounts of more than $100. The proposal has broad support, including more than 126 co-sponsors in the House.
In the wake of the court's decision, it is also essential that the presidential public financing system be made viable again. Cities and states will also need to enact public financing of elections.
Congress must ensure that corporate CEOs do not use corporate funds for political purposes, against the wishes of shareholders, with legislation requiring an absolute majority of shares to be voted in favor, before any corporate political expenditure is permitted. There are other legislative approaches to limit today's damage, including a range of measures proposed by Representative Alan Grayson, D-Florida.
These mitigating measures will not be enough to offset today's decision, however. The decision itself must be overturned.
We need a constitutional amendment specifying that for-profit corporations are not entitled to First Amendment protections, except for freedom of the press. A constitutional amendment is not a thing to throw around lightly. But today's decision so imperils our democratic well-being, and so severely distorts the rightful purpose of the First Amendment, that a constitutional corrective is demanded.
Winning a constitutional amendment will be a long-term effort. The starting point is for the people to petition their government to demand action. Public Citizen with allies has launched such a petition effort. Got to
The Supreme Court has lost its way. Democracy is rule of the people -- real, live humans, not artificial entity corporations. Now it's time for the people to reassert their rights.
Robert Weissman is president of Public Citizen
25 comments:
Ren: correct me if I am wrong but as far as I know, there are no limits to the "national" nature of corporations having the right to donate to the US electoral body. In another words, indirectly a French, Chinese or a British company can have a say in the electoral process...
I'm fine with the decision. Why shouldn't corporations have a say in elections, seeing as how they are certainly affected by decisions made at the federal level either for or against them?
How is allowing corporations to contribute to campaigns or purchasing ad time on behalf of a candidate, party, or issue any different from allowing any number of groups the right to do so?
What gives a labor union the right for example to contribute financially to electoral campaigns on behalf of workers, the majority of whom they do not truly represent? And that is just the tip of the iceberg. There are all kinds of activist groups that claim to speak for certain groups, and who contribute financially on behalf of those groups, yet they in no way represent everybody in these groups. I would argue that in some cases they might not even represent the majority.
Yet, when push comes to shove, decisions that are made at the behest or due to the influence of these groups will have an effect, directly or indirectly, on corporations.
These corporations have every right in the world to contribute to campaigns on behalf of their employees, their advertisers, their stockholders, and yes, their bottom line.
What affects business affects almost everybody in the country, the economy, everything, so they are representative to a point of everything they affect, and they have a right to have a say, every bit as much as somebody like PETA has an alleged right to speak for the rights of chickens.
And no thank you, I don't want federal financing of any elections. Why should I be forced to contribute money to campaigns for people I don't agree with. If these groups can make a case for their policies, they will find people who are willing to support them both financially and at the ballot box. If they can't make that case, then they won't, nor should they be supported by the tax money of hard working Americans.
By the way, Nevin, foreign companies are not allowed to donate to American political campaigns or candidates, Obama was being purposely deceptive, or he was stupid, but he was certainly wrong one way or another. Foreign nationals cannot contribute, nor can corporations.
Sure, they probably can find ways to skirt the system, but they can do that anyway. So can American businesses. They can always establish slush funds in off-shore accounts for this purpose which can then be funneled to individuals and shell groups for this purpose.
This just keeps everything all above board, at least theoretically. It also gives corporations the ability to make their counter-arguments against the people who are after all advocating against them. Which is of course the main reason the left is against it.
Somebody has to oppose all Labor's money in the Democratic Party... ;-)
Nevin: Apparently you're correct. I doubt if that would be the worst aspect.
Pagan: This decision changes nothing. Corporations can give the same money directly, rather than through fronts.
I frankly don't understand, why the right doesn't seem to care, how this will make class structure apparent. Capitalists don't like class shown so openly.
Obama got his $$ from finance capital.
I don't see what the right gains by this?
FJ: Union $$ is negligible, compared to capital. Finance capital paid for Obama, more than unions.
Do you think Wall Street $$ needs to be countered?
Ren-
Gay marriage is still against the law in the vast majority of states. Most of the time it comes up for a vote at the state level, there are all kinds of advocacy groups that fund ads either for or against it.
Do you think it would be fair if gay activist groups were not allowed to fund advertising in favor of gay marriage, while right wing conservative groups were allowed to fund ads against it? How could that possibly be fair under anybody's criterion?
It's the same thing here. Whether it's Cap and Trade, tax policy in general, trade or consumer laws, minimum wage, medical reform, there's an endless stream of issues that affect both small and large business.
Again, the question becomes, why should they not have the right to have a say in matters that affect them directly, or even indirectly?
Forget for the minute your hang-up against capitalism, I'm just pointing out the obvious, and it's not even that I'm in favor of Big Business in all cases, in fact, in some regards I am opposed to them myself.
Here's an example. A great many of your large corporations are fine with Cap and Trade. In fact, in some cases they even openly support it. The same with Health care Reform. Some CEO's feel it is actually in their best long term interests to support such policies.
It doesn't take a great deal of thought to see why. The establishment of such regulatory regimes puts their smaller competitors at a strict disadvantage. In some cases, it might even put them out of business. Some of your larger corporations can take the slight hit to their bottom line and make up for it with lay-offs, or by dropping certain products. And of course they can write off some of this as a business expense.
Not all large businesses take this stance, of course, but some do. It's a lot better to let them openly support or oppose policies or candidates than it is to do it through shell companies and slush funds.
By the way, this also eases the restrictions on Labor, something both you and Weissman seem to have not noticed.
And by the way, I am sure all capitalists of the world will thank you graciously for your sudden concern as to how this ruling will point out class differences.
Let's just hope it doesn't get too out of hand. After all, it would be just awful if the Left were to react during campaigns by using class warfare rhetoric.
Union $$ is negligible, compared to capital. Finance capital paid for Obama, more than unions.
I'll try and remember that the next time I see a GM Product or go to the DMV and "take a number" to talk to my friendly unionized "civil servant."
All this is an extension of the original corruption which was the 1886 decision to make the corporation a fictitious individual, thus giving this paper collectivity the rights of a living breathing person.
The US ruling class won't be happy until they have beaten down everyone into a life of slavery.
What ought to be done instead is abolish the two great frauds that made corporate capitalism a reality. First get rid of limited liability - everyone is responsible for their debts. Then eliminate the corporation as fictitious person. After that go after that monopoly builder - patents, replace it with time-limited royalties if you must, but no monopoly rights.
These are old US populist demands and ought to be dusted off and used again...
I could go along with that Gambone, but I'm still not seeing the difference between giving advocacy rights to corporations and giving them to any other special interest group that claims to speak for "the people". At least a corporation can legitimately claim to speak for its shareholders, and you can even make the argument it speaks for its employees.
Why should ACORN have the rights to participate in campaigns and contribute financially (or with campaign workers) but not Proctor and Gamble?
I can see where what's good for a large corporation might also be good for me in some cases. When I look at what some of these other groups advocate, all I see is a bunch of headaches for me, so excuse me if I just am not too impressed with your arguments.
Pagan: The US ruling class, doesn't like it known, that class exists. Words as middle class are used, rather than working class. I don't understand, why the right doesn't care, if the wealthy funding political campaigns is blatant? Obama perpetuated the myth his campaign was funded by the $5 and $10 contributions from the internet. It was funded by finance capital. Obama or any smart politician will not flaunt that.
Corporations fund groups through front groups. Why change?
FJ: Union membership declined and is declining more with the bad economy. No way are corporations less influential politically. Obama already sold out EFCA.
Larry G: Good points.
Union membership declined and is declining more with the bad economy. No way are corporations less influential politically.
Then please explain that to Chrysler and GM bondholders who got stiffed out of their Ch 11 money in favor of union reps and to the non-union workers who'll be paying "Cadillac" health care benefit taxes for "unionized" workers.
Those "poor" union workers are soooo under-represented politically...
You can fool some of the people some of the time....
Ren-
First of all, there's no such thing in the US as a "ruling class", there are just different economic classes as in all societies, and as far as I know, what you call the "ruling class" has no problem acknowledging that.
In fact, they celebrate it, in the sense it's their position that anybody (individuals, not groups, ahem, hint hint) can attain a higher level through work and diligence. Yes, I know there might be a lot of snake oil involved there, but the point is, the upper class isn't going out of their way to conceal that there is a class structure in America. You seem determined to create a conspiracy here where none exists. Nobody has to hide or reveal that there are different classes in America, that's a pretty well-established fact.
If anything, it seems to me that the class warfare rhetoric of the left is for the most part geared toward establishing a different class structure, with themselves of course at the top of the pyramid.
Pagan: In other countries, workers identify more as a class of themselves, than the US. In the US, the concept of class is discouraged. They may say power elite or the establishment or something like that. Most people think they are middle class.
I think the Horatio Alger story, had its time. The country is in decline.
You think corporations are without voice in govt?
FJ: The GM deal, was a complete betrayal of the workers. They will be chief job cutters. They even cut break times. No more job security.
No they are not without voice, they work through slush funds and fronts. My point is, given that is a fact, what's such a big deal about allowing them to do openly what they've already been doing anyway surreptitiously?
Upper class, upper middle class,middle class, lower middle class, working class, lower class-sounds like a pretty well-established class structure to me.
We've been through periods of decline before, and pulled ourselves out of them, maybe we'll do it again. Maybe not. I don't take anything for granted.
If we do get out of this mess though, it will be through going back to what we once were, not running away from it. The principles that made us the wealthiest, most powerful nation on the face of the earth, through all of history, sounds like a pretty good plan to me.
It actually sounds kind of retarded, when you stop to think about it, to suggest that the US adopt policies more similar to Europe, as some suggest, seeing as how Europe couldn't wipe its ass without our help to this day. What do you think would happen to them if the US was to withdraw its support. I for one would love to find out. I'm thinking it wouldn't be pretty.
SO yeah, if we become like them-or even worse, like Venezuela or Cuba-we're probably at the end and will never rise again to our previous level.
If we walk away from that shit and start back to the basics that made us great to begin with, we will, its that simple.
All it takes is work, diligence, and finding the right support to make it big, admittedly luck comes into play, and it helps to have an original idea or two.
Bill Gates could never happen anywhere but here.
Pagan, what support does the US actually give Europe? The Marshall Plan was 60 years ago and didn't exactly come without strings attached...
We subsidize them by taking on most of the burden of their defense. If we stopped, they'd have to roll the dice and either keep their own spending at current levels and hope for the best, or increase their own military defense expenditures, and be faced with the choice of cuts in spending for social programs or going even further in the hole than they already are.
Their best option would probably be to establish an EU based defense, as opposed to all of them building up their own individual military but either way its going to be a further financial drain on them.
Well Pagan, what the ruling has done is cripple any attempts at campaign finance reform. We aren't going to be able to get the money out of the system and we continue on this slow boat to hell.
Corporations have ample say as it is. This ruling will allow them to, for instance, buy up the bulk of broadcast advertising for the month preceding an election.
Now, if you think unions, which represent only a small percentage of American workers thanks to the efforts of the government and the courts over the years, have that kind of power and money then you just don't want to see this objectively.
... and whichever side you pick, Pagan, it is probably instructive to take a dose of Schumpeter and realize that laissez-faire and communism both have serious deficiencies but by adopting state corporatism, as the Supreme Court encourages with this ruling you enjoy so much, you are gaining the worst of both sides.
That would bother me, but you mileage may vary for some mysterious reason.
I didn't say it was the greatest thing since sliced bread, but nobody is looking at the big picture. Again, they do it anyway, though off-shore accounts and slush funds, this is at least keeping everything above board. Now they can make their case without resorting to subterfuge. I would think that would be a positive.
If anything, it would be more to their advantage to keep things as are, establish some hockey little "Citizens Committee For The Preservation Of Citizens Rights To Clean Energy", advocate for development of clean coal in such a way nobody has to know the money is coming from a slush fund established by big coal companies, just for one example.
I don't care how much you try, you will never stop that crap. Well now all you have to do is pay attention. Let them make their case, openly and above board, seems to me is a lot better.
If you really want to do something positive about campaign finance and advertising, why not advocate for a law that bans misleading advertising and outright lying? Pass a law like that that passes constitutional muster and you solve a lot more problems than by limiting participation, or excluding some sectors from participating at all.
I know a lot of you here hate capitalism with a purple passion, but damn, can't you at least concede I am making somewhat of a good point here?
I don't have anymore to say, without repeating, or getting circular.
Me neither.
That's another thing, what the hell is an "International" organization doing involving themselves in American elections, assuming the "International" part is more than just a name. Shouldn't they be automatically disqualified as much as a foreign citizen or corporation?
Come on Farmer. Get real. Just as A.C.O.R.N. was vilified when the likes of Rush the Vulgar Pigboy went ga-ga over that obviously edited tape, so it is with any unions out there who have even limited power.
Oh, if you want a participatory democracy write your stinking coward of a congressperson (whomever, they're all pretty much cowards) and demand a forensic analysis of the ACORN tape which has an overlaid sound track that even a Republican should be able to spot.
Wow, some bobo at a far right think tank is going after SEIU for the upteenth time. Is that even news?
How do you know the tape ain't real Ducky? Are you perhaps assuming, or are you going with the latest leftist talking points. Or do you honestly believe in your heart of hearts that ACORN is as pure as the driven snow?
Did anyone actually read the Supreme Court decision?
The ruling was all corporations regardless of industry must be treated the fairly under US law or it violates the constitution. McCain-Feingold gave differential treatment to media corporations as did these other laws.
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