Citizens United backlash creates surprising bedfellows and a reason for optimism

In this time of hyper-partisanship, blowback from the Supreme Court’s 2010 decision in the Citizens United case is throwing some surprising bedfellows together from the left, right, and center of the political spectrum.  Just how reviled are the effects of that decision’s unleashing of the influence of corporate money and wealthy individuals into elections may be measured by the temperature of the angry remarks of high-profile politicians as varied in their political stripes as Arizona Senator John McCain, President Obama, and Vermont Senator Bernie Sanders.

Just listen to a straight-talking McCain when he recently admitted to a Republican gathering that,  “I think the outside Super PACs and others is [sic] so disgraceful that I’m ashamed of the United States Supreme Court in their decision on United.”

Or remember the president’s unprecedented public chastisement of the Supreme Court during his 2010 State of the Union address? “With all due deference to separation of powers,” the President intoned in his most serious professorial diction, “last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”

Like Obama, now-retired Justice John Paul Stevens refused to soft-pedal his condemnation when he composed his dissenting opinion at the time of the Citizens United 5-to-4 vote.


 The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

… In the context of election to public office, the distinction between corporate and human speakers is significant.  Although they make enormous contributions to our society, corporations are not actually members of it.

 They cannot vote or run for office.  Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.

The majority’s approach to corporate electioneering makes a dramatic break from our past.  Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907.

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation.  The path it has taken to reach its outcome will, I fear, do damage to this institution. [Author’s emphasis.]

Not every politician, however, has been as critical. Presidential-hopeful Mitt Romney—desperately shape-shifting in his effort to become the conservative cheerleader extraordinaire—snidely remarked at a recent political rally that “corporations are people, my friend.” He and other conservatives may be able to ignore the opinion of Professor-of-Law Obama but may not find it quite so easy to dismiss the opinion of former Chief Justice William Rehnquist—himself an examplar of arch-conservatism.  In a show of exquisite linguistic clarity, Rehnquist warned that granting personhood to corporations and confusing corporate electioneering with the individual’s First Amendment right to free speech was “to confuse metaphor with reality.”

According to recent polling, a majority of Americans share Rehnquist’s discomfort. In fact, a hearty 55% of us oppose granting corporations the same constitutional rights as individuals, showing that you don’t need a constitutional law degree to understand the implications of this disastrous decision.

The debasement of our political dialogue—fueled by unlimited contributions from wealthy individuals and corporations to finance ad buys—has been on view throughout the 2012 Republican primaries.  Sadly, we can be certain that this cycle of political distortion is just an amuse-bouche when compared to the messy main course that’s going to be thrown out on the table during the presidential-campaign brawl and the upcoming ugly fight for control of Congress.  Fortunately, the backlash has begun, with opponents to the Citizens United decision coalescing to mount a multi-front assault to limit the effects of the court’s historic misjudgment.

Calls for a constitutional amendment

The call for a constitutional amendment is emerging from places as far flung as the oval office, city councils, state legislatures, and state supreme courts. From New York to Los Angeles to Boulder, Pueblo, Duluth, Missoula, Oakland, Albany, Burlington, Portland, Oregon, and Portland, Maine, resolutions are being brought to the floor calling on congressional delegations to support an amendment to the Constitution to abolish corporate personhood and legally define the word persons as human beings.

Vermont Senator Bernie Sanders is one of those leading the charge. Sanders recently introduced a bill called the Saving America Democracy Amendment.  It would establish that:

Corporations are not persons with constitutional rights equal to real people

Corporations are subject to regulation by the people

Corporations may not make campaign contributions or any election expenditures

Congress and states have the power to regulate campaign finances

Proponents of a constitutional amendment know that passage is a long-term goal—with some predicting a ten-year battle—that will not ameliorate in the short term the effects of the court’s decision. They acknowledge that the bar was set intentionally high for passage of a constitutional amendment, guaranteeing that an amendment would have to meet criteria of national import and consensus.   In order to gain passage, such an amendment would have to gain approval of two-thirds of Congress and then an affirmative vote from three-quarters of the states. (The last time an amendment was successful was in 1971 when the voting age was lowered from twenty-one to eighteen.) For short-term fixes, opponents are pursuing other avenues.

State laws, expansion of shareholders’ rights, and the courts

There is an effort afoot in states to pass legislation calling for setting disclosure requirements, disclaimers, and increased transparency. Another approach being discussed would remedy the issue of secrecy through revisions to corporate governance. That approach would expand the rights of shareholders to require management to inform investors of their intention to donate monies to political-action groups and to obtain prior approval before proceeding with campaign donations.

David Cobb, head of the Move to Amend campaign, explains the nuts and bolts of the shareholder approach.

 A model version, introduced last year in Maryland, would prohibit a corporation from publishing or distributing campaign material in the state unless it is true and require approval from the board of directors who would decide whether such expenditures are in the best interests of the corporation. The law would also mandate stockholder approval of the content of campaign material and advertising expenditures.

The fight is also being pursued in the courts. In December 2011 the Montana Supreme Court upheld Montana’s Corrupt Practices Act, the state’s century-old ban on corporate money in elections.  This represents the first direct legal challenge to the Citizens United decision.

Taking action now

Two senatorial candidates, locked in a difficult and tight contest, are not waiting for long-term solutions. Republican Scott Brown and Democrat Elizabeth Warren have taken the matter into their own hands by publicly rejecting the support of super PACS.  Massachusetts voters should take great pride in this unexpected and, yes, courageous show of bipartisanship.  The two opponents call their agreement the People’s Pledge.

Last week Brown and Warren laid down their challenge to each other in an announcement to their supporters:

 Scott Brown and Elizabeth Warren are joining together to ask outside groups to stay out, and we’re making it clear that they won’t be helping their favored candidate if they get in.  That’s why we’ve agreed to the People’s Pledge.

Here’s how it works:  If an independent third party group spends money on TV, radio, or online supporting a candidate, that candidate has agreed to pay 50% of the cost of airing that ad to a charity of the other candidate’s choice.

For her part, Elizabeth Warren has acknowledged that she is uncertain whether this pledge will stick.  However, for this disillusioned voter trying to make sense of the Supreme Court’s frightening assault on our democracy, the fact that these two candidates are leading the way by openly acknowledging the problem and proposing even a flawed solution is grounds for optimism.