January 21, 2010

The Anatole France First Amendment of Citizens United?

Citizens United v. FEC


By Brenda Wright, Director of Democracy Program, Demos

With today's decision in Citizens United, the Roberts Court has proudly unveiled the Anatole France First Amendment. "The law, in its majestic impartiality, forbids the rich and poor alike to sleep under bridges and beg in the streets," Anatole France famously wrote. After today, the First Amendment, in its majestic impartiality, will allow ordinary citizens and massive corporations alike to spend as much as they desire to elect their preferred candidates to office.

In a pre-argument blog on Citizens United, I pointed out how radically the scale of money in politics would change if the Court were to hold that the First Amendment outlaws any distinction between giant corporations and individuals when it comes to electoral spending. As the Solicitor General's supplemental brief in Citizens United explains:

During the 2007-2008 election cycle . . . FEC-registered political parties spent $1.5 billion, and federal PACs spent $1.2 billion, while the Fortune 100 companies had combined revenues of $13.1 trillion and profits of $605 billion. If those 100 companies alone had devoted just one percent of their profits (or one-twentieth of one percent of their revenues) to electoral advocacy, such spending would have more than doubled the federally-reported disbursements of all American political parties and PACs combined.

One of the most striking features of the majority opinion is thus the disconnect between its rhetoric - which frames the ideal of protecting the political arena from the terrible dangers of public oversight - and the reality - namely, the massive damage the decision itself will do to the political arena and the ideal of self governance by unleashing for-profit corporate treasury funds in the electoral sphere. At the heart of this disconnect is the deeply flawed assumption that political spending by an artificial, entirely state-created entity such as a for-profit corporation serves precisely the same function of self-expression and political actualization as it does for an individual person. The amicus brief that I helped author for the American Independent Business Alliance summarized the problems with that assumption as follows:

The governance system of . . . corporations is highly successful for the pursuit of profit, making them important instruments in the economic sphere. But the very factors that make the corporate form an effective instrument of wealth accumulation are the factors that make it inappropriate for corporations to claim the full panoply of First Amendment protections for political speech and participation that are enjoyed by natural persons. Because of the way corporations are structured, corporate speech does not express the political views of any individual or group of individuals associated with the corporation. Moreover, the constraints that drive a corporation's political speech - the requirement that corporate actions all must be calibrated toward profit - directly undermine the notion that a corporation can be a free participant in the marketplace of ideas. And precisely because a corporation enjoys significant state-created economic advantages designed for the narrow purpose of furthering wealth-accumulation, corporate participation in candidate campaigns promotes market entrenchment and corrupts the political marketplace in a fundamentally undemocratic manner.

Justice Stevens' dissent picks up on these themes (and even quotes our amicus brief, the only kind of comfort the reform side is getting from campaign finance opinions these days). In Justice Stevens' words "the fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it." He continues:

Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their "personhood" often serves as a useful legal fiction. But they are not themselves members of "We the People" by whom and for whom our Constitution was established.

But the majority's decision to overrule decades of precedent in order to unleash for-profit corporate participation in the political marketplace displays an even more striking disconnect when we think about the timing of the decision. The notion of perfecting our democracy by casting off all restrictions on corporate political spending comes on the heels of massive and appalling failures of corporate governance in the economic sphere itself - the very sphere for which the corporate form was created. Unrestrained and under-regulated pursuit of corporate profit helped spark a financial meltdown that wiped out $2 trillion in retirement savings in 15 months, lost 2 million homes to foreclosure over the past two years; and saw the disappearance of 7.2 million jobs. In the wake of all this, the Roberts Court's response is to ask "What could possibly go wrong from putting corporations in charge of politics too?"

The reform movement is gearing up quickly to move from outrage to action. The responses vary. Many are calling on a renewed push for public financing of congressional elections to help give citizens a place at the table; others are urging the need for a constitutional amendment to overturn the decision; and others are proposing shareholder protection measures that would give shareholders greater control over political spending by corporations. All of these approaches have promise and should be widely debated in the coming days.

[image via www.yellowdoggereldemocrat.org]