Citizens United v. FEC

  • 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.

  • 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.”