by James C. Nelson, Justice, Montana Supreme Court (Retired)
On the sixth anniversary of Citizens United v. Federal Election Commission, one of the most far reaching and pernicious decisions ever handed down by the Supreme Court of the United States, it is important to review the past in order to chart our future.
Recall that on January 21, 2010, the Court’s decision in Citizens United ushered in the unprecedented use of dark, individual and institutional mega-money expenditures to influence elections and, effectively, to silence the voices of individual small contributors and ordinary voters. The Supreme Court’s approach in Citizens United, and in subsequent court cases ‒ McCutcheon v. FEC, for example – have chipped away at expenditure and contribution limits imposed by Congress and the states upon individuals, corporations, unions, special interests groups, nonprofits and trade associations.
Citizens United has resulted in hundreds of millions of dollars pouring into elections with little or no disclosure of the source of funding and with little, if any, accountability for the truth and accuracy of the information and messages promulgated. Indeed, candidates are being “marketed” to voters in the same fashion that fast food and pharmaceuticals are hawked to consumers. To quote Warren Susman, we have changed from a culture of character into a culture of personality.
Focus, for a moment, on one of the most glaringly ridiculous premises of the Court’s decision. According to the Citizens United majority, contributions paid directly to a candidate breed corruption quid pro quo—in other words, I give you money; I buy your vote. Back in the day, it was called bribery. However, that same majority decreed that expenditures made on behalf of a candidate do not have any such corruptive effect because the individual or entity expending the money is simply providing the public with information about a candidate or issue.
For those living in a parallel universe, that nuance may make sense, but in the reality of the information age, it is a dichotomy grounded in a consummate fiction. By either definition, the contributor or expender is using a boatload of money to influence an election and to secure a vote in favor of or against a candidate or issue.
Aside from the Court’s majority, does anyone actually believe that candidates are oblivious to who is “expending” money for or against them? And, can any thinking person doubt that when millions upon millions of dollars are “expended” for a candidate, that he or she is bought (bribed) as surely as if the office seeker were handed a bushel basket of cash under the table?
Two empirical, non-partisan studies sponsored by the American Constitution Society ‒ Justice at Risk and Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases ‒ have clearly demonstrated that money expended to influence state judicial elections drives justices’ decisions in favor of the expenders in civil cases and against criminal defendants. And, if judges – who are sworn to impartiality, fairness and independence and to uphold the Constitution and rule of law – are thus affected, can there be any legitimate basis for believing that those elected to the two political branches would be free from similar corruption? Indeed, only fools or the Citizens United majority could believe in such irrationality. But, then, I repeat myself.
Also recall that under Buckley v. Valeo, a 1976 case decided before Citizens United, the U.S. Supreme Court held that money is a form of and counts as speech. The Court stated that: “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” And, “[T]he electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”
The consequence of this is obvious: The more money one can spend, the more speech one can buy and, thus, has. In other words, money equals speech. Partisan, corporate and special interests can expend mega dollars to elect a favored candidate or to defeat a candidate who will not support the expender’s agenda. Ordinary citizens have no such ability.
In truth, the ordinary voter’s $50 contribution or letter to the editor doesn’t mean much in the face of a multi-million dollar slick ad campaign. In reality, the speech and voice of the ordinary citizen is drowned out by the quantity of speech orchestrated in the national and local media by the mega-money speakers.
Moreover, if it means anything, the ideal of one person, one vote must contemplate that voters have an equal ability to participate at all stages of the process to elect their public officers and that their votes are not weighted or devalued by those who vote with their dollars. But the fact is that 0.01 percent of the voting age population is funding the massive media and attack-ad driven theater that we characterize as campaigns for public office. Less than 1 percent of Americans are contributing 80 percent of the campaign funds. Indeed, in the 2012 election, nearly 30 percent of all disclosed political contributions came from just over 30,000 people—in a nation of over 300 million people. That means that 1 percent of 1 percent of moneyed interests serve as the kingmakers for public office in the United States. They determine who gets nominated and, ultimately, who gets elected.
And if the run-up so far is any harbinger, the 2016 election cycle will see a billion or more dollars “expended” to influence who will likely become the next cabal of “uncorrupted” public officials.
I suggest that it is not too strong an observation that Congress, the Executive and the Federal Courts (because the judges of those are appointed and confirmed by the other two) are, for the most part, bought and paid for. And that is where elections are going in the states as well (thanks to a Supreme Court decision involving my state, Montana).
To be blunt, we no longer have government of, by and for the People—that is, human beings. We have government of, by, and for the rich and for corporations and special interests. We no longer have a Republic, we have an Oligarchy. The vision and promise of our Constitution have been ravished; its guarantee of human rights turned on its head.
But, do Americans simply have to accept that as the unalterable status quo? I suggest that we do not.
Keep in mind that Citizens United is not the first time that the Supreme Court has run amok. At differing periods in our history, the Court has ruled in favor of slavery; has upheld Jim Crow laws; has ruled that, based only on race or ethnicity, Americans could be forced into concentration camps; has held that women and people suffering from mental disabilities could be forcibly sterilized; has struck down women’s suffrage; has ruled that children can be forced to work in fields and sweatshops under appallingly unhealthy and unsafe conditions for pennies a day; has (and continues to) neuter laws designed to protect the voting rights of citizens against the machinations of partisan and special interests; and has stripped ordinary Americans of their right of access to the courts and to trial by jury in favor of determining disputes by costly arbitration with panels weighted heavily in favor of repeat corporate offenders.
And one other fact: Every constitutional “right” that corporations and special interests today enjoy – every single one of them – was created from whole cloth by the Supreme Court of the United States!
When faced with these sorts of unjust and malevolent decisions, other generations of Americans have stepped to the forefront to take back their Constitution. They have amended the Constitution itself to draw the People’s line in the sand: “We will tolerate this no more! The rights and guarantees of the Constitution belong to Us and not to some soulless, fictional entity! The Constitution is Ours, and we’re taking it back!” Indeed, seven of the 27 amendments to the Constitution were adopted to overturn decisions of the Supreme Court.
This generation of Americans is moving to do the same thing right now. The People are working to enact the 28th Amendment to undo the effects of Citizens United and to restore constitutional rights and guarantees to their rightful owners: We the People. Some 700 cities and towns in every region of the country have enacted resolutions favoring this amendment. Sixteen states have enacted 28th Amendment resolutions—proudly, my state of Montana is one of them. One hundred forty-two House members are co-sponsoring the 28th Amendment, and 54 senators voted for the 28th Amendment after it cleared the Judiciary Committee in 2014. Grassroots organizations are springing up across the country – Free Speech for People and American Promise (with which I am affiliated), Move to Amend, United for the People, Common Cause, Public Citizen’s Democracy Is for People – and similar local organizations are being formed to advance the battle lines.
Ordinary Americans are refusing to live in a universe wherein the prominent feature is the black hole created by Citizens United—a death star fed by dark mega-money and swallowing up the Peoples’ constitutional rights.
Americans—We the People—will, I firmly believe, prevail in this effort. We have done it before, and we will do it again.
Celebrate the sixth anniversary of Citizens United by joining an organization committed to beating it.