Free Speech For People

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.”

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By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights." This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.

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A year ago, on the day that the Supreme Court decided Citizens United v. FEC, I wrote here at ACSblog that the Court's failure to recognize the difference between corporations and people, the difference between a free speech case and a corporate regulations case, squarely frames the question of whether our American Republic will remain a government of the people. I said that it is "time to support and work for a 28th Amendment to correct the Court" and to "remove unwarranted judicial controls on our lawmakers' oversight of corporate power." From the perspective of twelve months passing, was this view of Citizens United, shared by many, unduly alarmist? Was the call for a Constitutional Amendment melodramatic and unnecessary? And, as some of my friends ask from time to time, "how's that campaign to save the nation going anyway?"

I have bad news and good news. The bad news is that those who view the Court's decision as a "strike at the heart of democracy," in the words of President Obama, are correct. The pay-to-play crony capitalism vision of America that underlies Citizens United, where citizens in a republic become consumers or spectators in corporate "marketplace" elections, and the people's representatives dance only to corporate tunes, shows every sign of coming to ultimate fruition. The alternative vision, one of a vibrant, innovative, responsible and confident republic of free people and free markets, where the people decide the appropriate place of corporations in our society, seems to fade into history.

Last November, we had the first post-Citizens United election, the most expensive federal mid-term election in history. Four billion dollars was spent, and at least hundreds of millions of dollars in corporate money passed through front groups with innocuous sounding names to define who was good, who was bad, and what issues mattered. Sixty percent of eligible voters did not bother to vote. And you can be sure that the threat of the billions of dollars of corporate money that is now available for electioneering and independent expenditure campaigns in 2012 is being felt in the halls of Congress, our state houses, town halls, and, perhaps most sadly, in our halls of justice where judiciaries are subject to retention votes or other elections.