Citizens United v. FEC

  • January 26, 2012
    BookTalk
    Corporations Are Not People
    Why They Have More Rights Than You Do and What You Can Do About It
    By: 
    Jeffrey D. Clements

    By Jeffrey D. Clements, the co-founder and general counsel of Free Speech for People and founder of Clements Law Office, LLC. Clements is author of the new book Corporations Are Not People, which explores the disastrous impact of the Citizens United opinion on democracy and proposes a constitutional amendment to restore government to the people.


    As the nation increasingly embraces the constitutional amendment solution to Citizens United v. FEC, a new proposition regarding so-called “corporate personhood” is emerging. It’s a proposition, which the notorious Citizens United decision actually had nothing to do with.

    Last week, for example, my friend Kent Greenfield cast a skeptical eye, in an op-ed for The Washington Post, on the “anti-corporate activists” who support a constitutional amendment to reverse Citizens United. (My own view competed the next day in a Boston Globe op-edwith Congressman Jim McGovern, the lead sponsor of the People’s Rights Amendment.)

    As an initial matter, no one should assume that the 79 percent of Americans who favor a constitutional amendment to reverse Citizens United are “anti-corporate,” whatever that means. After all, 1,000 business leaders have called for a constitutional Amendment, as have legal scholars, lawyers, former state attorneys general, serving attorneys generals, dozens of cities and town representative bodies and millions of Americans.

    The argument that corporations in fact are “people” under the Constitution, or at least that we ought to continue the tacit amendment of the Constitution that pretends that they are, at least has the virtue of frankness. Less credible, is the argument that Citizens United and the larger “corporate speech” theory under the First Amendment is not really about corporate rights at all, but merely about protecting associational rights of people.

    Professor Greenfield argues that the Supreme Court in Citizens United got “the result” wrong but at least it asked “the right question.”  No, the Court got the result wrong because the Court asked the wrong question. The actual question before the Court in Citizens United should have been the question posed by a challenge to the corporate regulation component of the federal Bipartisan Campaign Reform Act (BCRA) – Can Congress create different election spending rules for human beings than for corporations?

  • November 9, 2011

    by Jeremy Leaming

    Right-wing policymakers triumphed impressively last year taking control of many statehouses from coast to coast. Many of those lawmakers were ushered into office backed by Tea Party fervor, and lots of money from the likes of Charles and David Koch, the billionaire brothers, who head Koch Industries and espouse efforts to radically constrain government.

    A year after their sweeping victories, however, some of their most outrageous policies were shelved by large numbers of voters last night.

    The frontal assault on public sector workers in Ohio, as noted by the Plain Dealer, was squashed by voters, 61 percent to 39 percent. In a guest post for ACSblog, Ohio State University law school professor Dan Tokaji noted that SB 5, which gutted collective bargaining rights of public workers, was a “center of Governor Kasich’s first year in office.” Tokaji said the defeat of the anti-workers’ rights law was not only a major setback to the Republican governor, but also has ramifications outside the Buckeye state. If the law would have survived, Tokaji said it would have dealt a “crippling blow to organized labor, drastically curtailing its political influence.”

    Mississippi provided a mixed bag, defeating a radical anti-abortion measure, but supporting a stringent new voter registration law. As noted by The New York Times, perhaps one of the night’s “biggest surprises” was the state’s rejection of a proposed constitutional amendment that would grant legal rights to embryos, effectively outlawing abortion and other forms of birth control in the state. That policy was advocated by a Religious Right group called Personhood USA, which says it is pushing similar measures all over the country, and doing so, in part, “to glorify Jesus Christ in a way that creates a culture of life so that all innocent human lives are protected by love and by law.”

    Following defeat of the measure, Keith Ashley in a blog post for Personhood USA said the group understands the difficulty of “changing a culture,” and that it vows “to continue on this path towards affirming the basic dignity and human rights of all people ….”  

    Nancy Northup, president and CEO of the Center of Reproductive Rights, hailed the defeat of the Personhood Amendment, saying in a press statement, “Outlawing medical services commonly used and relied upon by Americans in their personal lives runs completely counter to the U.S. Constitution, not to mention some of our most deeply held American political traditions and values.”

  • October 20, 2011
    Guest Post

    By Mark Hays, Campaign Coordinator for Public Citizen’s Democracy is for People Campaign, which is building public support for a constitutional amendment that would address the impact of Citizens United v. FEC by restoring the First Amendment and fair elections to the people


    Unless you’re stuck in a windowless room reviewing case law, with no line out to the “interwebs” to speak of (and in which you case you probably aren’t reading this now), you know of the quiet desperation felt by hundreds of millions of Americans. The feeling that there are big problems with fairness and justice in our economy and our political process has bubbled to the surface through the Occupy Wall Street movement, now headed into its second month. 

    Even in the internet age, the dynamism of ordinary individuals physically occupying the town squares in New York, Boston, Phoenix, Sacramento, and many other places – with their feet, sleeping bags, anger and hope – excites our imaginations and taps a deep desire to make the experience of democracy once again something that is authentic and human-scaled.

    There’s a lot of talk about what the occupiers “want.” Setting aside the question of whether issuing demands is something the occupiers want or should want, it is pretty clear that at least one theme is on the minds of the folks in our city squares. On cardboard boxes, sandwich placards, t-shirts and even on their own skin, people are expressing outrage about the corrosive effect of big money in politics, particularly in the wake of the Supreme Court’s ruling in Citizens United v. FEC.

    This outrage is well founded –  in a report Public Citizen published one year after the Court’s disastrous decision – we found that spending by outside groups jumped to nearly $300 million in the 2010 election cycle, from just $68.9 million in 2006.  The donors for nearly half of this independent money spent remain undisclosed. And, that’s just a taste of what’s to come.  The influx of independent expenditures in allowed by Citizens United will bump up election campaign spending to record levels in 2012; by some account to as much as $8 billion, dwarfing previous records.

  • August 30, 2011
    Guest Post

    By Michael R. Siebecker, Professor of Law, University of Florida Levin College of Law


    Recently, a group of law professors petitioned the Securities & Exchange Commission (SEC) to adopt rules requiring corporations to disclose expenditures for political activities. The petition advances a variety of convincing yet fairly conservative arguments supporting both the need to adopt new political disclosure rules and the mechanisms for disseminating sufficient information. Although the petition adopts a properly dispassionate tone and focuses on pragmatic steps the SEC could easily take, the potential implications of a failure to adopt a political expenditure disclosure rule, or of a defeat of any new disclosure rule based on a First Amendment challenge, are much more striking than the petition conveys.

    First, the failure to require public corporations to disclose their political expenditures would exacerbate a tragedy of transparency that already threatens the collapse of the market for corporate social responsibility (CSR), where consumers and investors employ various political, social, environmental, or ethical screening criteria before purchasing a company’s stock or products. On a worldwide basis, owners or managers of assets exceeding $14 trillion make investment decisions based on one or more CSR criteria. 

    In an efficient market, fully informed consumers and investors could reward companies that engage in desired CSR practices by purchasing their products or stock, and, conversely, could punish companies that fail to engage in desired practices by refusing to purchase their products or stock. To the extent consumer and investor preferences for CSR provide compliant companies greater economic benefits (e.g., through higher consumer prices, stock premiums, or cheaper access to capital) than the cost of embracing CSR practices, an opportunity for true wealth creation exists that satisfies the preferences of consumers, investors, and corporate shareholders alike. That classic win-win opportunity quickly devolves into economic waste, however, if investors and consumers stop rewarding companies for engaging in socially responsible behavior. 

  • June 27, 2011

    by Jeremy Leaming

    Following today’s latest U.S. Supreme Court opinion striking a campaign finance law, a growing number of court-watchers are noting the Court’s tendency to side with corporate interests.

    “There seems to be, according to a growing number of court-watchers, a troubling trend of victories for corporate interests,” ACS Executive Director Caroline Fredrickson said. “For example, critics are already noting that the Supreme Court has ended its latest session with another decision overturning a campaign finance regulation – this time an Arizona law intended to help candidates who forgo private donations.

    “This latest decision undercutting campaign finance regulation,” Fredrickson continued, “follows last year’s Citizens United v. FEC that turned aside longstanding precedent upholding the government’s ability to regulate corporate influence of our elections.”

    She added, “The current high court session also included the decision in Wal-Mart v. Dukes, which shut down the ability of millions of former and current Wal-Mart women workers to band together in class action litigation to challenge alleged discrimination.”

    The high court ruling 5-4 invalidated the Arizona Citizens Clean Elections Act which, in part, provided public dollars to candidates who agreed to limit their personal spending. The majority, led by Chief Justice John Roberts Jr. said, “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.” Roberts was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr., the same majority that invalidated campaign finance regulation law in Citizens United v. FEC.

    Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, lodged a dissent. Kagan defend programs like Arizona’s writing, it “does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate.”

    In a piece for Slate, Paul Clement, former U.S. Solicitor General during a portion of the George W. Bush administration, wrote that it appears “that 5-4 divisions over campaign finance laws are here to stay. The newest justices – Kagan and Sonia Sotomayor – are passionate defenders of such laws.”

    And Clement said the majority “seems undeterred, maybe even energized, by criticism of its First Amendment holdings in the campaign-finance realm. The dissenters seem equally resolute.”

    For more material regarding the high court’s rulings involving corporate interests, see the ACS Web page, “Corporations and The Courts.” This Thursday ACS will host a Supreme Court review at the National Press Club.