Citizens United v. FEC

  • 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.

  • July 16, 2012

    by Jeremy Leaming

    Since the Supreme Court issued its opinion in Citizens United v. FEC in early 2010 it has become painfully clear that the majority opinion was poorly crafted and based on wobbly assumptions about the effects of corporate bankrolling of elections.

    In late May, retired Justice John Paul Stevens, who lodged a concurring and dissenting opinion in the case, offered a number of reasons why the high court should revisit the majority opinion's holding.

    Before hitting upon those reasons, Stevens, in a speech at the University of Arkansas Clinton School of Public Service, noted that the majority decision reversed “a century of law [upholding campaign finance regulations]” and it authorized “unlimited election-related expenditures by America’s most powerful interests.”

    The opinion, Stevens continued, placed an enormous “emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity’” and claimed that when it comes to political speech the government is barred from restricting speakers.

    Plenty of constitutional scholars have argued that the majority opinion fleetingly trampled precedent in support of campaign finance regulation to unveil a new right for corporations to spend wildly on politicking.

    But Harvard Law School professor Benjamin I. Sachs in a recent op-ed for The New York Times notes that it also tramples the cherished First Amendment principle that the government cannot force individuals to support politicians or political causes.

    Specifically Sachs notes that the “vast majority of people who work in the public sector – state, local and federal employees – are required to make contributions to a pension plan.” And nearly every state makes it mandatory for workers to participate in those plans. Not surprisingly, Sachs notes workers have little say in how the pension plans are operated and that “pension plans invest heavily in corporate securities: in 2008, public pensions held about $1.15 trillion in corporate stock.”

  • May 31, 2012

    by Jeremy Leaming

    At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.

    Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.

    Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”

    But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”

    “Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”

    Stevens said:

    Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.

    But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.

    The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.

  • May 18, 2012

    by Jeremy Leaming

    The Montana Supreme Court late last year pushed back against the U.S. Supreme Court’s highly unpopular and wobbly reasoned opinion in Citizens United v. FEC, when it upheld the state’s longtime regulation of corporate financing of elections.

    Not surprisingly a cabal of corporations quickly asked the high court to overturn the Montana Supreme Court’s ruling in Western Tradition Partnership, Inc. v. State of Montana, which concluded the Roberts Court’s Citizens United opinion was not going to stand in the state’s way of ensuring that corporations do not overtake its elections.

    Writing for the majority upholding the Montana Corrupt Practices Act, Chief Justice Mike McGrath stated “when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because shadowy backers of WTP [Western Tradition Partnership] seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

    Even the dissenting justice in the Montana case blasted the Supreme Court’s “corporate personhood” reasoning of Citizens United, writing, “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creations of government.” 

    Then earlier this week came Jeffrey Toobin’s extensive piece for The New Yorker revealing the machinations of the Roberts Court to tear down the tradition of campaign finance regulation, and in the process provide yet another victory for corporate America. As Toobin writes Chief Justice John Roberts craftily took a case with a narrow question before the justices and expanded it allowing the Court’s right-wing bloc to overturn a long tradition of regulating corporate financing of campaigns. The outcome in Citizens United concluded that corporate entities have First Amendment rights to spend whatever they want on electioneering, and in the process ushered in the era of the “super PAC.”