Jan. 21, 2011: A Day to Keep Moving Forward to Mitigate the Enormous Damage of the Citizens United Decision

January 21, 2011
Guest Post

By Fred Wertheimer, president, Democracy 21. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. Follow Fred Wertheimer on Twitter: www.twitter.com/FredWertheimer
On January 21, 2010, five Supreme Court justices issued a disastrous decision that initiated a dangerous sea change in American politics.

The Supreme Court by a 5 to 4 vote in Citizens United v. Federal Election Commission struck down a century of U.S. policy and decades of Court precedent to declare unconstitutional the ban on corporate expenditures in federal elections.

In so doing, the five justices unleashed massive influence-seeking corporate expenditures and opened the door to enormous damage to our democracy.

Corporations have trillions of dollars and they are now free to spend as much of their money as they want to buy influence over federal officeholders and government decisions.

The Court decision constituted a political decision by five ideologically conservative justices who ignored history, ignored past precedent and ignored the jurisprudence that normally governs Supreme Court cases. Instead, the ustices issued a decision that represents a classic case of legislating from the bench, a practice repeatedly frowned on by these same justices.

The rights of citizens are laced throughout our constitution. The word "corporation" never appears.
Nevertheless, the five "strict constructionist" Justices chose to elevate corporations to the level of citizens in our political process. They conferred on corporations the "constitutional" right to directly participate in our elections, a "constitutional" right that did not exist prior to the day of the decision.

The Court's decision, furthermore, was built on a series of deeply flawed assumptions.

The Court assumed "effective disclosure" was in place for the corporate expenditures it authorized. It was not.
The Citizens United opinion emphasized the critical role of disclosure in the new campaign finance system it was creating, stating that disclosure is "needed to hold corporations and elected officials accountable for their positions and supporters," and to allow citizens to "make informed choices in the political marketplace."

Justice Kennedy wrote for the Court majority, "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today." But, in fact, "effective disclosure" did not exist on that day and does not exist today. The $130 million in secret contributions that flooded the 2010 congressional races demonstrated just how wrong the Court majority was in assuming that "effective disclosure" existed.

A second mistaken assumption by the Court was its belief that under the Court's ruling, a corporation would have to make campaign expenditures "independent" from the candidate they benefit and could not coordinate its activities with the candidate.

The Court, however, never defined what it meant by "independent" and failed to understand that under flawed FEC regulations, corporate spenders are not in any meaningful way prevented from coordinating their expenditures with candidates. Corporations, in essence, do not have to make "independent" expenditures.
Most importantly, the Court was just plain wrong in assuming that true "independent" expenditures could not have a corrupting influence on federal officeholders and government decisions and could not create the appearance of such influence.

This assumption by the Court represents a naïve and incorrect understanding of real world American politics and influence-buying corruption today. How can a corporation that spent $20 million or $30 million to elect a senator not gain undue and corrupting influence over the senator's positions as a result? And it belies reality to think that such expenditures would not create the appearance of corrupting influence because the corporation has not "coordinated" these expenditures with the senator.

Citizens United is an irresponsible and indefensible decision that must be overturned, no matter how long the battle.

There are a number of reform fights that lie ahead including critical efforts to repair the presidential public financing system, which served the nation well for most of its existence, and to establish a public financing system for congressional races. Both of these systems would be based on making small donors and matching public funds the key to financing federal elections.

We also need to ensure that no efforts are successful in this Congress to backtrack on existing campaign finance laws.

However, the essential and immediate first step that must be taken in this Congress to mitigate the damage done by the Court is to provide for effective public disclosure of corporate campaign expenditures and the donors funding these expenditures in time to be effective for the 2012 presidential and congressional elections.
In 2010, Congress came within one vote of enacting new disclosure laws that would have ended secret contributions being spent by corporations to influence federal elections. The DISCLOSE Act passed in the House and fell just one vote short of the 60 votes needed in the Senate to pass the legislation. The battle is continuing in this Congress with the public overwhelmingly in support of disclosure.

According to a New York Times/CBS Poll (October 28, 2010), 92 percent of Americans said that it is important for the law to require campaigns and outside spending groups to disclose how much money they have raised, where the money came from and how it was used.

Obtaining public disclosure is essential for four important reasons:

First, it will provide voters with information they have a basic right to know in making their decisions about whom to support.

Second, secret money in American politics is a sure fire formula for influence-money scandals. Disclosure of campaign contributions and expenditures will help to limit that from happening.

Third, disclosure will provide for corporate accountability. Corporations will have to decide whether they want to make campaign expenditures disclosed to the public and will be publicly accountable to customers, shareholders, directors and the public at large for any campaign expenditures they make.

Fourth, public disclosure is vital to building the record necessary to override the Citizens United decision, whether this is done by bringing a future case to the Supreme Court, by passing a constitutional amendment or by enacting a new corporate spending ban. A public record is essential to document the compelling state interest in banning corporate campaign spending to prevent corrupting influence on federal officeholders and government decisions.

Justice Stevens aptly noted in his eloquent dissent (more appropriately described as a majority opinion in waiting) that the only change that had occurred in Citizens United from past Supreme Court decisions upholding the corporate spending ban was the makeup of the Court. This provided no legitimate basis or justification for striking down the corporate spending ban.

The Citizens United decision will not stand the test of time. It is built on a house of cards and will collapse in the future, hopefully sooner than later. Meanwhile, we must pursue all appropriate avenues to mitigate the extraordinary damage that five Supreme Court justices have done to our country.