January 21, 2010

Citizens United v. FEC: Time for a Free Speech for People Amendment?


Citizens United v. FEC

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By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements is also author of the ACS Issue Brief, Beyond Citizens United v. FEC: Re-Examining Corporate Rights.


Today in a 5-4 decision in Citizens United v. FEC, the Supreme Court held that the American people are powerless to stop corporations from using corporate funds to influence state and federal elections. Overruling McConnell v. FEC, decided only six years ago and Austin v. Michigan Chamber of Commerce, the Court held that the restrictions on corporate expenditures in elections contained in the federal Bipartisan Campaign Reform Act violated First Amendment protections of free speech. In effect, the majority decision (Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito) equates corporations with people for purposes of free speech and campaign expenditures.

This is an extraordinary ruling unhinged from traditional American understandings of both the First Amendment and corporations. Indeed, Justice John Paul Stevens' dissent calls the majority opinion a "radical departure from what has been settled First Amendment law."

In Austin and McConnell, the Supreme Court had ruled that Congress and the States may regulate corporate political expenditures not because of the type of speech or political goals sought by the corporation but because of the very nature of the corporate entity itself. Today, Citizens United sweeps those decisions aside, resting partly on Justice Kennedy's assertion that "Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster." It is an assertion that Justice Stevens, in his dissent, blasts as a "glittering generality."

The notion that corporations are equivalent to "other associations" is a fundamental error that would get a law student in trouble. Corporations simply do not exist unless we enact laws that enable people to organize a corporation and provide the rules of the road for using a corporation. We all can start and run businesses without government involvement or permission; we can form non-profits and associations and unions and political parties and all kinds of groups without the government. But we simply cannot form or operate a corporation unless the state enacts a law providing authority to form a corporation, and providing the rules of the road that go with use of the corporate form. Advantages of corporations are a privilege provided by government.

Yet corporations and too many judges confuse these privileges and policies with constitutional rights. And the result, even before Citizens United, has been increasingly damaging to democracy.


Why is this result so devastating to self-government? If we take only the profit of the 100 largest corporations alone, those corporations would need less than 1 percent of their $605 billion in profit to make political expenditures that would double all current political spending by all of the parties and federal candidates.

Some think corporations won't use these resources, even if they could. I'd suggest that those who think that have not been paying attention to the current state of our democracy, even before the Court took the Citizens United case. Corporations already spend vast sums of corporate money to dominate political debate and outcomes. As a result, Americans already are deeply estranged from their government. According to a 2007 Pew Research Center study, barely a third (34%) agree with the statement, "most elected officials care what people like me think," a 10-point drop since 2002. And in Citizens United, the Supreme Court, relying on an ahistorical and policy-driven corporate rights theory unhinged from the First Amendment, has effectively confirmed that when it comes to politics, people may as well stay on the sidelines.

Already, Citizens United is viewed by many as a Constitutional emergency, warranting a clear response from Congress and the American people. Today, a coalition of public interest and business groups launched, Free Speech for People to amend the Constitution, protect democracy and restore the First Amendment for people, and have been joined in this effort by Congresswomen Donna Edwards, American University Law Professor and Maryland state Professor Jamie Raskin, and many others. (Disclosure: I serve as general counsel of Free Speech for People).

The growing view among many people that we must restrain and control corporate power is not new in America and it is far from fringe. Throughout American history, at least until very recent times, that was the mainstream view. And as Justice Stevens' dissent in Citizens United states: "Unlike our colleagues, they [the Framers] had little trouble distinguishing corporations from human beings."

Americans have amended the Constitution repeatedly since the Civil War to expand rather than dilute democratic participation of people in elections. Most of the seventeen amendments that followed the ten amendments of our Bill of Rights were adopted to expand democracy and eliminate barriers to democracy for everyone. One amendment overruled the Supreme Court when the Court sided with economic power and held that Congress had no power to enact a graduated income tax. The people responded with an amendment making clear Congress did indeed have that power.

The Citizens United case reminds us that as with previous generations of Americans, we find that the democracy that we carry as an ideal cannot be fixed without first correcting a Supreme Court majority that has lost its way. It is time to support and work for a 28th Constitutional Amendment to correct the Court, restore the First Amendment to the people's right, and remove unwarranted judicial controls on our lawmakers' oversight of corporate power.