Citizens United v. FEC

  • January 24, 2011
    Guest Post

    By Jamie Raskin. Mr. Raskin is a Maryland State Senator, a constitutional law professor at American University, and a Senior Fellow at People for the American Way. He introduced SB 690, which became in April 2010 the first Benefit Corporation law in America. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
    You never change things by fighting the existing reality. To change something, build a new model that that makes the existing model obsolete. -- Buckminster Fuller

    The modern American corporation is bound by law to pursue a single objective in everything it does: increasing company profit. If it deviates from profit maximization, shareholders can bring the house down in a derivative suit.

    This relentless profit motivation works wonders financially but is dangerous to the common good. For what is profitable for one company may not be beneficial for everyone. This is why popular forces in America have always tried to build regulatory fences around corporations to contain the damage of their "externalities," such as catastrophic oil spills in the ocean, collapsing oil mines that kill the parents of small children, consumer fraud, sickening peanut butter and food-borne diseases, economic monopolies, mortgage scams, stock market rip-offs, economic crashes and so on.

    Perhaps the most important fence hemming in corporate power has been the ban on corporate political spending. This is the first line of defense for popular democracy because it allows our representative institutions sufficient freedom from corporate influence to set up the other fences that we need. To get meaningful food and drug safety laws, consumer protection laws, workplace equity laws, and clean water laws, we need campaign finance laws that permit representatives in Congress and the state legislatures to be elected in a way that is free of corporate control and manipulation.

    The Supreme Court in Citizens United v. FEC demolished our first line of defense against corporate control of our representative institutions. Five corporate-minded justices -- let's call them "Justices United" -- not only tore down the fence guarding popular democracy but seriously trashed the fence protecting the "free market," which is democracy's next-door neighbor.

  • January 21, 2011
    Guest Post

    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.

  • January 21, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Paul S. Ryan, is FEC Program Director and Associate Legal Counsel at The Campaign Legal Center.
    One year ago, Justice Kennedy wrote in Citizens United, on behalf of eight of the Court's nine Justices: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today." Nor, sadly, did it exist after that day.

    Justice Kennedy offered these words as solace to those who feared the consequences of the Court's decision to unleash of millions of corporate dollars into our political process. He continued: "The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

    Justice Kennedy claimed to be striking a balance. Corporations get unrestrained political speech, while the electorate gets effective disclosure of who is behind that speech.

    Unfortunately, the electorate got the short end of the stick. Corporations spent unknown millions in 2010 elections, but the "campaign finance system that pairs corporate independent expenditures with effective disclosure" simply does not exist.

    Though Congress, through the enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA), dramatically improved campaign finance disclosure, the Federal Election Commission (FEC) has since eviscerated the law.

  • January 21, 2011
    Guest Post


    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.

    Marking the one year anniversary of the Supreme Court's decision in Citizens United v. FEC, New York University law school professor Barry Friedman spoke with ACSblog. In his brief interview, he considers where the decision is likely to lie in the broader conservative trajectory of the Roberts Court.

     

  • January 21, 2011
    Guest Post


    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.


    The Supreme Court's decision in Citizens United v. FEC sparked a wave of criticism and diverse efforts to mitigate its effects. Attorney Jeffrey Clements, the co-founder and general counsel of Free Speech for People, spoke with ACSblog about why a constitutional amendment is best suited to overturning last year's decision. Clements is also the author of an ACS Issue Brief on the topic.