Search Results for: citizens united

Citizens United is Just the Tip of the Iceberg

January 25, 2013 by Nick Bentley

By Kaitlin Sopoci-Belknap

It’s been three years since the Supreme Court issued its outrageous decision in Citizens United vs. FEC, overturning the flimsy campaign finance protections afforded under McCain-Feingold law. The case opened the floodgates to billions of dollars perverting our elections, much of it completely unreported, and some amount even coming from foreign corporations and governments. The Court literally legalized bribery, and wealthy individuals and special interests took full advantage of it.

As shameful as that decision is, we must confront the sobering reality that it is only the tip of the iceberg. A small ruling elite (often succinctly described as the 1%) have stolen control of the country, and they are ruling over us. They use the façade of elections to legitimize the theft. And even when decent legislation is enacted, they use the Courts to overturn those laws. Citizens United vs. FEC is merely a deepening of the crisis of corporate rule.

At the crux of the crisis are two core legal doctrines. One is “corporate personhood,” a court-created precedent that illegitimately gives corporations rights that were intended for human beings. The other is “money equals free speech.”

An amendment to the US Constitution is the only lasting solution to this problem. The only amendment worth fighting for MUST address both doctrines. As a quick refresher, here is are some examples of we must abolish ALL corporate constitutional rights:

1st Amendment Free Speech rights. Corporations use these rights, meant to protect human beings from the power of the state, to influence elections through political “contributions” (more like “investments”); to advertise for guns, tobacco and other dangerous products over the objections of communities; to avoid having to label genetically modified foods or food laced with hormones.

4th Amendment Search and Seizure rights. Corporations have used these rights to avoid subpoenas for unlawful trade and price fixing, and to prevent citizens, communities and regulatory agencies from stopping corporate pollution and other assaults on people and communities.

5th Amendment Takings, Double Jeopardy and Due Process corporate rights. Corporations must be compensated for property value lost (e.g. future profits) when regulations are established to protect homeowners or communities. Corporations cannot be retried after a judgment of acquittal in court. The granting of property to a corporation by a public official cannot be unilaterally revoked by a subsequent public official or Act of Congress.

14th Amendment Due Process and Equal Protection corporate rights. These rights, originally enacted to guarantee equal protection for African Americans, were gradually extended to corporations by the courts. Corporations have used these rights to build chain stores and erect cell towers against the will of communities; oppose tax and other public policies supporting local businesses over multinational corporations; and resist democratic efforts to prevent corporate mergers and revoke corporate charters through citizen initiatives.

Commerce Clause-related corporate rights. Corporations have used this section of the Constitution (Art 1, Sec 8) to ship toxic waste from one state to another over the “health, safety, and welfare” objections of communities – claiming the waste isn’t actually “waste” but “commerce.”

Contracts Clause-related corporate rights. The Supreme Court ruled in Dartmouth vs. Woodward (1819) that a corporation is as a party in a private contract based on the Contracts Clause (Art 1, Sec 10) rather than being a creature of public law. Even though the state creates a corporation when it issues a charter, that state is not sovereign over the charter, merely a party to the contract. Thus, corporations became “private contracts” with the state and, therefore, shielded from many forms of control by We the People.

Since the problem of corporate constitutional rights is multidimensional, the solution must be comprehensive.

One hundred and sixty years ago, those who believed the section of the Constitution (Art 4, Sec 2) defining people as property (slavery) was fundamentally immoral didn’t call for ending one or two dimensions of slavery. They didn’t organize to establish legislation through Congress, or a Slavery Protection Agency, nor ask slaveholders to sign a voluntary code of conduct to treat slaves a little less harshly. They called for abolition of the institution of slavery.

And today, the Move To Amend coalition suggests that we should not limit our vision and actions. Yes corporate money in elections is a problem. So let’s make sure our solution actually gets to the root causes.

Let’s set out to amend the constitution in a way that abolishes all rights wrongly granted to the corporate form over the last two centuries. Let’s put an end to the institution of corporate constitutional rights itself.

Nothing less is worth the considerable time and learning, grit and energy, required to amend the Constitution.

Why not make the result worth the effort?

Kaitlin Sopoci-Belknap serves on the Executive Committee Move to Amend. She is Field Organizing Coordinator for the campaign.

photo courtesy dnkemontoh

What is Citizens United? | An Introduction

December 17, 2012 by Nick Bentley

What is Citizens United? The short answer is it’s two different but related things: a Political Action Committee (PAC) in Washington, D.C., and a Supreme Court case about election spending in which the aforementioned PAC was the plaintiff. Both lie at the center of a debate over the role corporations play in society. Read on for the long answer.

US Supreme Court Justices - Portrait — The Justices who decided the Citizens United Supreme Court case.

It’s a Political Action Committee

Citizens United’s Logo

Citizens United, the PAC, was founded in 1988 by Floyd Brown, a longtime Washington political consultant, with major funding from the Koch brothers (industrialists who own “the second largest privately owned company in the United States”). The group promotes corporate interests, socially conservative causes and candidates who advance their goals, which it says are “…limited government, freedom of enterprise, strong families, and national sovereignty and security.” It gained fame in 2009 for suing the Federal Election Commission, leading to a controversial Supreme Court case (now also commonly known as Citizens United) eliminating some restrictions on how corporations can spend money in elections.

It’s a Supreme Court Case

In the 2008 election season, Citizens United the PAC sought to broadcast TV ads for a video-on-demand film criticizing presidential candidate Hilary Rodham Clinton, but doing so would violate the 2002 Bipartisan Campaign Reform Act (known also as the McCain–Feingold Act), which barred corporations and unions from paying for media that mentioned any candidate in periods immediately preceding elections.

Citizens United challenged the law, suing the Federal Election Commission (which sets campaign finance laws and election rules), and the case made its way through lower courts until an appeal was granted by the U.S. Supreme Court.

In a 5-4 ruling, the Justices declared unconstitutional the government restriction on “independent” political spending by corporations and unions, and determined the anti-Clinton broadcast should have been allowed. The decision overturned century-old precedent allowing the government to regulate such spending. As a result, Citizens United has greatly affected the way corporations and unions can spend on elections (more on that below).

The Court majority (Justices Kennedy, Roberts, Alito, Scalia, and Thomas) argued:

barring independent political spending amounts to squelching free speech protected by the First Amendment.
the First Amendment protects not just a person’s right to speak, but the act of speech itself, regardless of the speaker. Therefore the First Amendment protects the speech of corporations and unions, whether we consider them people or not.
although government has the authority to prevent corruption or “the appearance of corruption,” it has no place in determining whether large political expenditures are either of those things, so it may not impose spending limits on that basis.
the public has the right to hear all available information, and spending limits prevent information from reaching the public.

The Court minority (Justices Stevens, Ginsburg, Breyer, and Sotomayor) argued:

the First Amendment protects only individual speech.
government may prevent corruption, and campaign spending can be corrupt when it buys influence over legislators. Therefore government may impose spending limits on corporations and unions.
government may prevent the appearance of corruption, which undermines public confidence in democracy. Limits on corporate and union political spending are an expression of that authority.
the public has the right to hear all available information, and when corporations spend money individuals can’t match, messages from corporations drown out messages from others, and that information fails to reach the public.

Initial Public Response

The decision was controversial and set off a ferocious debate which continues to this day.

Some celebrated the decision, claiming it advanced free speech and allowed any company to compete on equal footing with media organizations that already “freely disseminate their opinions about candidates using corporate treasury funds.”
Some were neutral, arguing the decision would only boost the volume of political ads, which wouldn’t affect public discourse or governance for better or worse.
Others were critical. For example, President Barack Obama said the decision “gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates.”

Effects of Citizens United

An explosion in independent political spending ensued in the decision’s aftermath, as this chart from the Center for Responsive Politics illustrates:

Spending was on the rise even before Citizens United, but the post-decision increase was dramatic. The 2012 presidential election was the first following Citizens United, with more than twice the political spending as any previous election. Independent political spending of the kind Citizens United allows accounted for all of that increase.

Is this new spending determining the winners of elections? Most analysis suggests it’s not (at least not much), but by no means is the spending benign, as we argue below.

What’s Reclaim Democracy’s Position?

We oppose the Court’s Citizens United ruling, for the following reasons:

Given the strong restrictions our country’s founders imposed on corporate activities, they clearly didn’t intend for corporations to enjoy constitutional protections.
The government has the authority to prevent corruption or the appearance of it, but the Citizens United majority opinion says the government has no right to decide whether independent political spending drives those things. We argue government can’t prevent corruption without the ability to identify the causes. This isn’t just a theoretical problem, because evidence suggests both government-corporate relations appear corrupt to the electorate, and those relations are in fact corrupt.
The majority’s claim that spending limits prevent full information from reaching the public ignores reality. We’re bombarded by information. We register only a fraction of it, and money (spent on advertising and promotions) strongly determines what ends up in that fraction. When wealthy groups can spend whatever they want, they can make sure their messaging drowns out other voices and limits the information reaching the public.
The Court had to overturn one of its own decisions to decide Citizens United as it did. The Court normally honors a custom called Stare Decisis, which means it tries not to overturn its own decisions if it can avoid doing so, by deciding a case on narrower grounds. In this case, the path was clear: the Court could have ruled the McCain-Feingold law doesn’t apply to video-on-demand, a decision which would have aligned better with previous decisions. The Justices went far beyond what Citizens United’s own lawyers asked for!

Beyond the legal objections, unlimited political spending by corporations and unions causes several problems:

It prevents a “meritocracy of ideas.” Unlimited political spending allows ideas to dominate not by merit, but by their supporters’ ability to broadcast them.
It has influence far beyond the ads it pays for. The more money a politician needs to compete for office, the more she must court the wealthy, leaving less time to govern and less contact with average citizens. Another consequence is that legislators’ lives get tied up with wealthy supporters in ways that have led to widespread corruption in both parties.
The kind of unlimited political spending Citizens United allows (mostly on attack ads) creates a crude, counterproductive form of political dialogue, which breeds unthinking partisanship and oversimplified discussion via sound bytes. We need to create a culture in which thoughtful political discussion can flourish, but the unregulated flood of money that Citizens United unleashed makes it harder to do so.
It gives large corporations anti-competitive advantages over small businesses.

We believe citizens and their elected representatives must have the right to limit the influence of money on candidates and elections in order to protect the integrity of elections and government. This includes the ability to implement public financing systems that match private spending.

The Big Picture

Citizens United isn’t an isolated problem. It’s a symptom of a bigger, longstanding threat: for decades the largest corporations have been building power over our political process — power that comes at the expense of citizens.

One of the main instruments of this influence is the legal concept of “corporate personhood,” wherein corporations receive the same Constitutional protections as individuals. Corporations use these protections to claim the “right” to lie to the public, for example, or to influence elections in various ways. Corporations have lobbied for and received these protections for decades, despite our country’s founders intending no such thing. The Citizens United decision is just the latest in a long line of decisions granting Constitutional rights to corporations.

An important note: Citizens United isn’t technically an extension of corporate personhood. The Court majority didn’t say corporations have free speech rights because they’re people, but instead stated non-persons have free speech rights. If your toaster could talk, it would have those rights too.

The case clarified, however, that a Constitutional Amendment is the only way to strip corporations of “constitutional rights.” Moreover, many kinds of electoral reform, such as public campaign financing that truly levels the playing field, are legal impossibilities without first amending the Constitution (as a subsequent Supreme Court decision on campaign finance vividly demonstrates). For these reasons, there’s now a rapidly growing grassroots movement afoot to do so.

At the head of this Movement is Move to Amend, a broad national coalition with more than 150 chapters nationwide and nearly 250,000 endorsers (Reclaim Democracy is a co-founder). More than 400 cities and towns have passed resolutions or ordinances calling to end corporate personhood or have serious efforts underway. The measures typically pass by huge margins.

Even more impressive, 10 states now have passed measures in opposition to Citizens United. Most recently, Colorado and Montana voters did so in early November 2012. Montana’s measure opposed not just Citizens United but also the Supreme Court’s creations of corporate personhood and “money=speech” (Buckley v Valeo), and passed by an overwhelming 75%-25% margin. See here for more on these successes.

Get Involved

If ever a time existed to get involved in the effort to revoke illegitimate corporate power, that time is now. We have the precious resource of real momentum, and the best way to protect that resource is through more participation. If you agree that corporations wield illegitimate power that we the people must take back, start or join a chapter of Move to Amend.

We also encourage you to help us keep broadening public awareness, reshaping public debate and providing more resources like this by donating to Reclaim Democracy (tax deductible).

Other Groups Working to Revoke Illegitimate Corporate Power

Surprise! Citizens United Legal Reasoning Doesn’t Rely on Corporate Personhood

November 11, 2012 by Nick Bentley

By Nick Bentley
Published November 11, 2012

For anyone who opposes excessive corporate influence over government, these are encouraging days: there’s now a widespread groundswell of support across the country to overturn Citizens United and deprive corporations of their improper status as “people”.

However, we’ve noticed a misconception spreading that Citizens United is an extension of corporate personhood. It’s not.

It’s true that Citizens United strengthened First Amendment protections for corporations. But the basis for that protection isn’t corporate personhood. Rather, the court’s decision rests on two other assumptions:

That money equals speech; and
That non-persons have the right to speech.

That second point is the kicker. If corporate personhood ended tomorrow, it wouldn’t affect Citizens United at all, because non-persons have speech rights now too. If your underpants could talk, they would be protected by the First Amendment.

How do we know this? First, look at some relevant text in the majority opinion, written by Justice Kennedy:

Premised on mistrust of governmental power, the First Amendment stands against attempts to… distinguish among different speakers, which may be a means to control content.

In other words: the identity of the speaker is irrelevant. Justice Scalia drives this point home in his concurrence:

The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment.

Justice Scalia stresses that the First Amendment doesn’t exclude “any category of speaker,” The First Amendment protects anything that speaks, whether it’s legally a person or not.

This is a key point for those of us who hope to reign in excessive corporate influence through a constitutional amendment. It’s not enough to merely revoke corporate personhood. To overturn Citizens United, we also have to overturn the two assumptions listed above.

Luckily it’s not difficult get the language right. Both Reclaim Democracy and Move to Amend have proposed amendments which would do so. For example, rather than simply establish that “Corporations are not people,” Reclaim Democracy’s amendment specifies that “the U.S. Constitution protects only the rights of living human beings.”

It’s a small difference in language with big implications. Let’s make sure that all who advocate for an amendment understand the distinction.

Resources

Citizens United pig courtesy WWYD
Underpants photo courtesy Enrique_L.