By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights." This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
A year ago, on the day that the Supreme Court decided Citizens United v. FEC, I wrote here at ACSblog that the Court's failure to recognize the difference between corporations and people, the difference between a free speech case and a corporate regulations case, squarely frames the question of whether our American Republic will remain a government of the people. I said that it is "time to support and work for a 28th Amendment to correct the Court" and to "remove unwarranted judicial controls on our lawmakers' oversight of corporate power." From the perspective of twelve months passing, was this view of Citizens United, shared by many, unduly alarmist? Was the call for a Constitutional Amendment melodramatic and unnecessary? And, as some of my friends ask from time to time, "how's that campaign to save the nation going anyway?"
I have bad news and good news. The bad news is that those who view the Court's decision as a "strike at the heart of democracy," in the words of President Obama, are correct. The pay-to-play crony capitalism vision of America that underlies Citizens United, where citizens in a republic become consumers or spectators in corporate "marketplace" elections, and the people's representatives dance only to corporate tunes, shows every sign of coming to ultimate fruition. The alternative vision, one of a vibrant, innovative, responsible and confident republic of free people and free markets, where the people decide the appropriate place of corporations in our society, seems to fade into history.
Last November, we had the first post-Citizens United election, the most expensive federal mid-term election in history. Four billion dollars was spent, and at least hundreds of millions of dollars in corporate money passed through front groups with innocuous sounding names to define who was good, who was bad, and what issues mattered. Sixty percent of eligible voters did not bother to vote. And you can be sure that the threat of the billions of dollars of corporate money that is now available for electioneering and independent expenditure campaigns in 2012 is being felt in the halls of Congress, our state houses, town halls, and, perhaps most sadly, in our halls of justice where judiciaries are subject to retention votes or other elections.