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Home > Blog > All > Citizens United v. FEC

Citizens United v. FEC

  • January 21, 2011

    Jan. 21, 2011: A Day to Keep Moving Forward to Mitigate the Enormous Damage of the Citizens United Decision

    Guest Post
    By Fred Wertheimer, president, Democracy 21. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. Follow Fred Wertheimer on Twitter: www.twitter.com/FredWertheimer
    On January 21, 2010, five Supreme Court justices issued a disastrous decision that initiated a dangerous sea change in American politics.

    The Supreme Court by a 5 to 4 vote in Citizens United v. Federal Election Commission struck down a century of U.S. policy and decades of Court precedent to declare unconstitutional the ban on corporate expenditures in federal elections.

    In so doing, the five justices unleashed massive influence-seeking corporate expenditures and opened the door to enormous damage to our democracy.

    Corporations have trillions of dollars and they are now free to spend as much of their money as they want to buy influence over federal officeholders and government decisions.

    The Court decision constituted a political decision by five ideologically conservative justices who ignored history, ignored past precedent and ignored the jurisprudence that normally governs Supreme Court cases. Instead, the ustices issued a decision that represents a classic case of legislating from the bench, a practice repeatedly frowned on by these same justices.

    The rights of citizens are laced throughout our constitution. The word "corporation" never appears.
    Nevertheless, the five "strict constructionist" Justices chose to elevate corporations to the level of citizens in our political process. They conferred on corporations the "constitutional" right to directly participate in our elections, a "constitutional" right that did not exist prior to the day of the decision.

    The Court's decision, furthermore, was built on a series of deeply flawed assumptions.

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    Tags:
    Campaign finance, Supreme Court, Constitutional Interpretation and Change, Democracy and Voting, Campaign Finance, Citizens United online symposium, Citizens United v. FEC, Fred Wertheimer, Guest Post
  • January 21, 2011

    Justice Kennedy’s Mistaken Citizens United Vision and the Lurch Toward Campaign Finance Deregulation

    Guest Post
    This post is part of an ACSblog online symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Richard L. Hasen, is a Visiting Professor at UC Irvine School of Law and author of the Election Law Blog.
    When the Supreme Court decided Citizens United v. FEC, arguably the most controversial decision of the Court since Bush v. Gore, observers offered a variety of predictions about what the post-Citizens United world allowing unlimited corporate and labor union spending in candidate elections would look like. Some thought corporations would be in a position to buy election results, or, as President Obama said, to "drown out the voices of ordinary Americans." Others thought the decision would not have much impact, because earlier Supreme Court decisions, including the Court's opinion in FEC v. Wisconsin Right to Life, had already made it much easier for corporations and labor unions to influence the outcome of candidate elections. Early empirical studies are still sorting out the effect of the case on the 2010 elections, and there's much speculation about how the case will play out in the 2012 presidential elections.

    Justice Kennedy, author of the majority opinion in Citizens United, offered his own vision of the post-CU world within the case itself. He envisioned free exchange of ideas in a democratic marketplace, coupled with complete and instantaneous disclosure of campaign contributions and expenditures over the Internet: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today...With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters."

    Whether Justice Kennedy believed that existing campaign finance disclosure law would provide for this free and instantaneous exchange of information about campaign money or whether he was instead advocating that Congress adopt such a system is unclear. What is clear, however, is that Citizens United has not only unleashed new money into the election process; actions by lower courts and the FEC, combined with an inadequate disclosure regime, have led to a system of largely undisclosed corporate, union, and individual campaign contributions flooding into elections.

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    Tags:
    Campaign finance, Fidelity to the Constitution, Speech and expression, Supreme Court, Constitutional Interpretation and Change, Democracy and Voting, First Amendment, Citizens United online symposium, Citizens United v. FEC, Guest Post
  • December 21, 2010

    Will of the People, Will Not of the People

    Guest Post
    By Jamie Raskin, a professor of constitutional law at American University, a Maryland State Senator and a Senior Fellow at People for the American Way.
    "The past isn't dead. It isn't even past." --Willliam Faulkner

    In 2000, in Bush v. Gore, the Rehnquist Court, by a 5-4 margin, called off vote-counting by the state of Florida and determined the outcome of a presidential election in favor of one lucky Texan.

    In 2010, in Citizens United, the Roberts Court, by a 5-4 margin, declared that private corporations have a First Amendment right to engage in unlimited campaign spending and likely altered, for as long as anyone can see, the outcome of every major contested election in the country in favor of CEOs and Republican consultants who bundle their money.

    The Supreme Court stole one election and sold off the rest of them.

    In the decade that has passed between these two miserable bookends, we have seen the relentless erosion of civil liberty and democratic values, bureaucratic drift into permanent aggressive war, and a corporate-powered assault on the economic security and workplace rights of the citizenry.

    Given how far we have strayed from what is best in America, defenders of our new plutocratic arrangements must return to Bush v. Gore in order to rehabilitate it, obfuscate it, and sweeten its unbearable stench. They will keep going back because it was the decision that first threw the principle of democracy-under-the-rule-of-law entirely to the wolves.

    Like clockwork, columnist George Will returned to the scene of the crime on the decision's 10th birthday in a column in The Washington Post. Bemused, he found "remarkably little damage" from the "institutional collisions" that took place over the Supreme Court's unprecedented intervention to stop the counting of more than 170,000 uncounted ballots in Florida.

    Although Will throws up a lot of pregnant-chad and dimpled-chad confetti, certain things never appear in his delusional account. For example: Secretary of State Katherine Harris, who moonlighted as Chair of the George W. Bush for president campaign. Governor Jeb Bush. Systematic vote-purging in the African-American community, with more than 17,000 people turned away at the polls because Harris' state-paid private consultant determined, with her enthusiastic encouragement, that their names resembled those of convicted felons. The statutory disenfranchisement of 400,000 convicts. The unlawful disenfranchisement of hundreds of thousands more through polling place skullduggery, ballot manipulation and failed machinery. The oddity of Holocaust survivors and Jewish grandmothers in Palm Beach casting their ballots for Patrick Buchanan. The fact that the electoral college "loser," Vice-President Al Gore, had a national popular majority of more than 500,000 votes.

    But above all: The utter fraud of the Supreme Court majority decision in the case.

    Will's analysis of the Court's decision never quite happens, but the one clear point that emerges from his scattershot musings is his contempt for what the Florida Supreme Court called "the will of the people" and that state high court's laser-like focus on getting the election boards to judge hundreds of thousands of uncounted ballots based on "the intent of the voter."

    Will's contempt for the key democratic concepts makes perfect sense. Although every state in the Union, including Texas, bases its elections on these same ideas, our electoral-industrial complex regards elections as an intermittent and carefully controlled opportunity for the public to ratify the choices of corporate America and the national security state. Any dramatic popular surges that depart from this script can be suppressed, even at the price of the rule of law itself.

    The Rehnquist Court's thuggish offenses against the Constitution in Bush v. Gore reach into the dozens and cannot be itemized, much less analyzed, in anything short of a law review article or book. Every citizen who thinks about democracy should read at least one of them.

    But in case you bump into a victim of George Will's smug celebration of the original derailment of political democracy in the new century, you might mention the following:

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    Tags:
    Fidelity to the Constitution, Election law, Supreme Court, Constitutional Interpretation and Change, Democracy and Voting, Separation of Powers and Federalism, Bush v. Gore, Citizens United v. FEC, Guest Post
  • October 25, 2010

    Harvard Law Prof. on a ‘Broken’ System of Campaign Finance

    Not all media coverage of the midterm elections has dwelled on predictions of a power change in Washington - some outlets have focused attention on money flowing anonymously into this year's election cycle. For example, The New York Times reported last week on the enormous amounts of money that have been pumped into the U.S. Chamber of Commerce, which has allowed it "to become one of the most well-financed critics of the Obama administration and an influential player in this fall's Congressional elections."

    Much of campaign financing coverage notes the impact the Supreme Court's 2010 opinion in Citizens United v. FEC, which overturned decades of precedent regarding the regulation of corporate campaign financing. In an interview with The Nation's Chris Hayes, Harvard law school professor Lawrence Lessig acknowledges the troubles of the Citizens United outcome, but says our democracy was already corrupted by a campaign financing system that has driven droves of politicians to be beholden to large funders.

    Lessig, director of Harvard's Edmond J. Safra Foundation Center for Ethics, told Hayes, "Our democracy was already broken before Citizens United." Before that decision was issued earlier this year, we "already had a system that drove members to be dependent upon funders rather than upon citizens, and that dependency is what is corrupting of the original conception of what a democracy would be - as Federalist 52 put it, our government was to be an entity where our Congress would be dependent on our people alone."

    Lessig continued:

    Well, it is absurd to think that our Congress is dependent upon our people alone today, and that's because of our current political financing system. So a lot of people want to spend a lot of energy trying to overturn Citizens United - and I'm the first to say that Citizens United is going to create all sorts of bad influences - but overturning Citizens United is not going to solve the problem.

    The first course of action, Lessig maintains, is to push for reform "that radically changes the economy of influence that members live under when they raise money to run for Congress." As an example, he mentioned the Fair Elections Now Act, which he said would make it possible for candidates to run campaigns "where they took no more than $100 dollars from any citizen." Those contributions would be matched by the government, and would help produce a much different crop of candidates, he said.

    If such change were in place before the next election cycle, Lessig said it would "produce a significant number of congress people" not beholden to the kinds of interests fueling today's election cycle. And those lawmakers, Lessig said, "could then begin to think about what other reforms might be necessary to make sure we have the kind of election cycle that our framers intended us to have."

    Audio of the Lessig interview is available here.

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    Tags:
    Campaign finance, Democracy and Voting, Campaign Finance, Citizens United v. FEC, Lawrence Lessig
  • October 19, 2010

    Following the Aftermath of High Court’s Corporate Campaign Finance Decision

    Editor's Note: This post was updated Oct. 20 with a mention of a recently published piece by The New York Times on the Koch brothers' efforts to fund political causes.

    Recently the group Free Speech for People urged top congressional lawmakers to get behind a constitutional amendment that would nullify the Supreme Court's opinion of last term that overturned longstanding corporate campaign finance laws, holding that corporations have similar free speech rights as individuals to spend on elections. In its letter to Congress, the group, representing 50 law professors, attorneys and public servants across the political spectrum, said the high court's decision poses a "deep danger to our democracy and self-government."

    As election season dwindles, there has been increasing attention from policymakers and the media to the large sums of money flowing anonymously into election efforts nationwide. As The Huffington Post's Sam Stein reported recently, former Virginia governor Tim Kaine, and DNC chair, said the anonymous dollars shaping the 2010 midterm elections could be the biggest political scandal since Watergate. "I think this is a huge story, it might end up being - I'm not in the business - one of the biggest political process stories since Watergate. As we see this trend toward funding campaigns through non-reportable entities, the Democrats stand squarely for requiring disclosure of who is funding campaigns," Kaine told a gathering hosted by the Christian Science Monitor.

    The New York Times reports on the new set up spurred by Citizens United v. FEC, noting that before the decision, nonprofit groups were "limited to broadcasting ‘issue ads' and barred from ‘express advocacy,' advertisements that directly urge voters to elect or defeat specific candidates.'" But in the "aftermath" of Citizens United, the newspaper, maintains that the nonprofits are moving toward a much "sharper form of messaging in the closing weeks of the campaign."

    And the amount of money the nonprofits are dumping into the elections are spurring calls for the IRS to investigate whether they've crossed the line from being so-called social welfare entities to purely political animals, which could result in the loss of their tax privileges.

    The Times also reports on the plans of Kansas billionarie brothers Charles and David Koch, funders of efforts to undermine Obama administration policy, to conduct a "confidental meeting at the Rancho Las Palmas Resort and Spa to ... 'develop startegies to counter the most severe threats facing our free society and outline a vision of how we can foster a renewal of American free enterprise and prosperity.'" The invitation to the gathering, the newspaper says, is "a rare peek at the Koch network of the ultrawealthy and the politically well-connected, its far-reaching agenda to enlist ordinary Americans to its cause, and its desire for the utmost secrecy."

    Earlier this year, in an extensive piece for The New Yorker, Jane Mayer reported on the under-the-radar offensive the borthers have waged against the Obama administration. The brothers have also funneled large sums of money into defeating California's Global Warming Solutions Act, which is intended to curb pollutants.  

    In an interview with ACSblog, Jeff Clements, general counsel for Free Speech for People, said that amending the Constitution to restore the ability of lawmakers to regulate corporate spending on elections was not necessarily the easiest approach, but the one likely to correct the situation. Watch Clements' interview here.

    Tags:
    Campaign finance, Supreme Court, Democracy and Voting, Citizens United v. FEC, Free Speech For People, Jeff Clements, Tim Kaine
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