Citizens United v. FEC

  • February 6, 2012
    Guest Post

    By Billy Corriher, an attorney working in civil rights

    With the 2012 election in high gear, the country is tasting the bitter fruit of the Supreme Court's controversial Citizens United v. FEC opinion. Vitriolic political ads - funded by anonymous donors, accountable to no one – are flooding the airwaves in primary states. When these ads go nationwide, the chorus of criticism against Citizens United will only grow louder. We are already seeing local governments and state courts rebuking the Court. The Portland City Council, for example, passed a resolution opposing the idea that corporations are persons with constitutional rights.

    In Citizens United, the Court ruled unconstitutional a federal law prohibiting corporations from airing political ads before an election. The Court found that the statute infringed corporations' right to free speech and that this infringement was not justified by a compelling government interest. The Court said, “[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Although such expenditures may give rise to “the appearance of influence or access,” this was not a problem for the Court because “an independent expenditure is political speech . . . that is not coordinated with a candidate.” 

    As soon as it was announced, Citizens United came under fire. The idea that five unelected judges understand political corruption better than the United States Congress is absurd, and the notion that Super-PACs are “independent” of the candidates has proven to be a ludicrous legal fiction. 

  • January 26, 2012
    Corporations Are Not People
    Why They Have More Rights Than You Do and What You Can Do About It
    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.