Citizens United v. FEC

  • September 12, 2012

    by Jeremy Leaming

    Corporate America, thanks to an assist from the U.S. Supreme Court has even greater ability to secretly pump large sums of money into elections from coast to coast. The high court also provided an assist to state’s bent on creating more difficulties for individuals to vote through ridiculously onerous voter ID laws, curtailment of early voting, or clampdowns on voter registration drives.

    The picture is not a flattering one for a nation that staunchly promotes democracy.

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) sought to bring more attention to the matter with a hearing today on those Supreme Court opinions. “I am concerned that recent Supreme Court decisions [Crawford v. Marion County, upholding a stringent state voter ID law, and Citizens United v. FEC] have dramatically altered the balance of our democracy by finding new rights for corporations to influence elections, while at the same time allowing new barriers to the right of individuals to vote,” Leahy said in his opening statement at the hearing.

    Later Leahy lamented the fact that three years after Crawford numerous states have enacted “voter ID laws and erect new barriers to voting, barriers that remind us of a time when discriminatory practices such as poll taxes, literacy tests, and grandfather clauses were commonplace and kept Americans from exercising their basic right to vote.” (Earlier this summer Attorney General Eric Holder blasted the restrictive voter ID law in Texas, saying it looked a lot like a poll tax.)

    Leahy added that these new barriers to voting fall the “heaviest on African-Americans, Hispanics, military veterans, college students, the poor, and senior citizens.”

    In a post for the Constitutional Accountability Center’s Text & History Blog, David H. Gans notes the recent federal court rulings from “judges across the ideological spectrum” applying a section of the Voting Rights Act to strike or slow implementation of some of those barriers to voting, noting their disproportionate impact on minorities. The federal courts said these measures were “designed to suppress the vote and dilute the voting power of racial minorities ….” Gans added, “These rulings provide critical new evidence of precisely why preclearance [of the Voting Rights Act] is still a much needed tool to protect the right to vote free from racial discrimination. Without the Voting Rights Act in place, African American and Hispanic voters in the states such as Texas might be denied their constitutional rights to cast a ballot on Election Day.”  

    In his opening remarks before the Senate panel, Leahy also expressed concern about the reach of the Voting Rights Act, in light of the current make-up of the Supreme Court. There is a case out of Alabama that could well find its way to the high court soon. Leahy said he was troubled that “these same five Justices, who in Citizens United disregard the evidence and a century of experience involving the power of money to corrupt elections, will soon be reviewing lower court decisions that examined significant evidence about the continuing need for the protections of the landmark Voting Rights Act. Will they show the same disregard for the evidence when reviewing this historic law? I hope not.”

    The committee heard from advocates intimately familiar with both campaign finance regulation and Voting Rights.

    University of Montana law school professor Anthony Johnstone defended during his tenure as the State's Solicitor the Corrupt Practices Act of 1912 from corporate attacks. Montana’s high court upheld the corporate campaign finance law in American Tradition Partnership, Inc. v. Bullock, but the Supreme Court summarily reversed the ruling, citing Citizens United. Justice Stephen Breyer lodged a dissent saying, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens Untied, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

    Johnstone (pictured) told the Senate panel that in Crawford and Citizens United “the Supreme Court does not consistently apply ... approaches to judicial review. It upholds the voter identification law and strikes down the corporate campaign spending law.”

  • September 10, 2012

    by Jeremy Leaming

    The effort to amend the Constitution to counter the ever-growing corporate influence on lawmakers and elections is a noble one, but there is a more useful and far-reaching way to correct the matter – make corporations more democratic. That’s law Professor Kent Greenfield’s take in a new article for Democracy.

    It’s an extensive piece that helps explain why the Supreme Court’s 2010 opinion in Citizens United v. FEC is quickly producing a corrosive effect on elections from coast to coast, but also why seeking a constitutional amendment is a wobbly strategy.

    Not long after the high court in Citizens United invalidated some major campaign finance regulation and found that corporations have nearly unfettered rights to funnel their expenditures into elections, an effort was launched to amend the Constitution.

    John Bonifaz and Jeffrey Clements co-founded Free Speech For People a group devoted to a constitution amendment overturning Citizens United.

    A recent debate with Bonifaz helped spur Greenfield to write the Democracy piece. Greenfield, who teaches business and constitutional law at Boston College, says that too many progressives have decided that constitutional law solution is needed to trump the Citizens United. Instead, Greenfield argues that it is corporations and how we understand them that need to change.

    “While the constitutional effort is defensive and palliative, a campaign to redesign the corporation itself would be affirmative and transformative,” Greenfield writes. “To cure Citizens United, we don’t have to amend the Constitution – we need to rethink corporations.”

    The nation’s laws governing corporations are weak and shareholders, despite widespread belief, do not have much to do with running corporations. (He notes for instance that shareholders are “not ‘owners’ in any meaningful way. If you own a share of General Motors, you will still be tossed out of its headquarters as a trespasser if you try to enter without an appointment.”) In Citizens United the Supreme Court majority, Greenfield notes, saw corporations as “associations of citizens,” but in reality America’s corporations are largely representative of the wealthy few, the 1 percent.

  • August 31, 2012

    By Jeremy Leaming

    The effort to trump the Supreme Court’s disastrous corporate elections spending case, Citizens United v. FEC, received a presidential stamp of approval this week, but because of the media’s heightened coverage of a political convention in Florida, it went largely undetected.

    But while politicos gathered in Tampa to do what they inevitably do, provide a boring, predictable show, President Obama in a Reddit conversation said a constitutional amendment might be the only way to go about staunching or at least curbing corporate America’s increasingly disconcerting grip on elections for public office.

    A bit of hyperbole above, because some press did notice Obama’s comments made during the Reddit discussion. As Politico reported, the president said, “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it.). Even if the amendment process falls short, it can shine a spotlight of the super-Pac phenomenon and help apply pressure for change.”

    Politico noted that Citizens United greatly weakened federal regulation of corporate spending on elections, thereby allowing business interests to become even more involved in controlling political outcomes and influencing political parties.

  • August 22, 2012
    Guest Post

    By Billy Corriher, Associate Director of Research, Legal Progress, Center for American Progress


    Spending on judicial elections has skyrocketed in the last 15 years, with special interest money flooding campaign coffers. Until recently, judicial elections were almost always low-key affairs that did not require large sums of campaign cash. State supreme court candidates since 2000 have received $247 million in campaign funds. A recent report from the Center for American Progress looked at some of the states which have seen the most campaign cash in judicial elections, in an effort to assess how campaign contributions could be shaping the law. The report describes how certain special interest groups wanted the law interpreted in a certain way, and then worked to elect judges that wrote those changes into law. “In courtrooms across our country, big corporations and other special interests are tilting the playing field in their favor,” the report states.

    The U.S. Chamber of Commerce and corporate-funded groups that support "tort reform" began to pour money into judicial races, after they perceived some state courts as beholden to campaign donations from trial attorneys, many of whom made money suing corporations. The pro-corporate groups had a good track record early on. These groups now dominate judicial campaign expenditures in the states that have seen the most money – Alabama, Texas, Michigan, Ohio, and others.  Contributions from Alabama's Chamber of Commerce accounted for 40 percent of all campaign contributions in the most recent high court election in the state, according to data collected by the National Institute on Money in State Politics.  

  • July 31, 2012

    by Clark Taylor

    In Citizens United v. FEC, the Supreme Court paved the way for unprecedented amounts of outside campaign spending by powerful interests. As a result, billionaires like Sheldon Adelson and the Koch brothers have pledged to spend up to $400 million in an all-out effort to ensure that the voices of the richest few are heard the loudest.

    The numbers support the trend. Richard L. Hasen, an election law expert at University of California, Irvine, says outside campaign spending through March 8 amounts to more than $88 million for federal elections. This represents a significant contrast to the $37.5 million in 2004 and $14.2 million in 2000. The growth is even starker in mid-term years as the same spending jumped from $1.8 million in 2006 to $15.8 million in 2010.

    Perhaps most disconcerting, this regime has led to a situation in which the superrich can spend more and more on elections without any disclosure. Sen. Bernie Sanders (I-Vt.), in testimony before a Senate committee, claimed that there were at least 23 families worth over $1 billion who have given more than $250,000 in campaign contributions this cycle. Just 196 Americans have given more than 80 percent of the total money donated to super PACs.

    Groups and individuals have proposed efforts to help blunt the or counter powerful interests seeking to sway elections. Professor Lawrence Lessig has advocated for a series of citizen conventions to craft a constitutional amendment. Sen. Dick Durbin (D-Ill.) has called for a constitutional amendment. The group Free Speech for People also proposes a constitutional amendment. Jeff Clements, co-founder and president of the group, stated in written testimony to the Senate, that a constitutional amendment was needed to restore congressional power over campaign finance regulation. Perhaps the closest Congress has come to reform was the DISCLOSE ACT, which would have required that independent groups disclose those donors who give more than $10,000. Though the bill received support from a majority of the Senate, Republicans blocked the measure using a procedural move.