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 determining the winners of elections? Yes, after a decade of data, research shows that the candidate who has more money, wins more often.

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.

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.

Citizens United gave this toaster first amendment rights

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 600 cities and towns have passed resolutions or ordinances calling to end corporate personhood or have serious efforts underway.

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. Your gift is 100% 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.

Roots of Rebellion: Why Montana is the Only State to Reject Citizens United

September 3, 2012 by staff

By Jeff Milchen
First published by New West, March 8, 2012

“Campaigns were conducted by simply the opening of a barrel, and sowing the state from one end to the other with corporation money—the largest barrel winning in the end. This extravagant campaigning prevented the election of any but the wealthy or those supported by special interests.” –from the Terry (Montana) Tribune, February 1910.

There’s no end to the colorful stories of corporate corruption in Montana during the years preceding passage of our now-endangered Corrupt Practices Act, which banned direct corporate electioneering.

Montana has the dubious honor of helping provoke passage of the 17th Amendment to the U.S. Constitution, which changed selection of U.S. senators from a vote by state legislators to popular election. The Amendment responded in part to the 1899 scandal of copper baron and U.S. Senate hopeful William Clark bribing state legislators for their vote.

Montanans began retaliating, not by merely defending against one assault at a time, but by changing the rules of engagement. After amending the State Constitution in 1906 to empower citizens with the ballot initiative, Montanans organized for long-term solutions to runaway corporate power.

Their work paid off when 77 percent of voters passed the Corrupt Practices Act via ballot initiative in 1912. The Act banned corporations from spending their funds on direct electoral advocacy for a century until the U.S. Supreme Court suspended the law in February, pending appeal of a Montana Supreme Court ruling. The Montana Court upheld the law in December 2012 after Western Tradition Partnership (now American Tradition Partnership) challenged the law’s constitutionality following the U.S. Supreme Court’s Citizens United v. FEC ruling.

But 24 states had laws many presumed were rendered unconstitutional by Citizens United. What led state Attorney General Steve Bullock to defend Montana ‘s law aggressively when other states promptly caved? And what might inspire a decisive 5-2 victory at the state Supreme Court?

Notably, one of the two dissenting justices berated the Citizens United ruling even more forcefully than retired U.S. Supreme Court Justice Stevens, but felt the ruling obliged Montana to strike down the law.

The Corrupt Practices Act helped preserve the integrity of state elected offices, but by no means insulated Montanans from corporate abuses, including environmental and human health disasters like Butte’s Berkeley Pit and the WR Grace Corporation’s asbestos contamination in Libby. In the latter case, the lobbying power of leading asbestos-related corporations led to federal legislation permitting them to evade billions of dollars in liability to victims and others via sham bankruptcies.

Another formative event occurred in 1971 when the federal government published a study recommending eastern Montana be covered with coal strip mines and plants to provide electricity across the western states. Environmentalists, ranchers and others united effectively and eventually defeated the proposal, but only after diverting countless hours away from their jobs and personal lives.

Wary of continuing to drain time and energy in further defensive struggles, Montanans called a convention to rewrite the state constitution. Voters elected 100 delegates — none were state office-holders — who negotiated for 56 days (and many nights). They emerged with what would become the nation’s most human rights-centered constitution. (Chapter 21 of Montana: Stories of the Land, details the process.)

Among the proposed constitution’s distinctive protections:

Article II: the Declaration of Rights: “Neither the state nor any person, firm, corporation, or institution shall discriminate against any person…on account of race, color, sex, culture, social origin or condition, or political or religious ideas.”
Article IX: “The state and each person shall maintain and improve a clean and healthful environment…” (Though the Libby asbestos tragedy was yet unknown, previous corporate mining debacles drove the provision.)
Strong “right to know” laws and privacy protections were included, resulting from Montana ‘s unusual mix of libertarianism and populism.

Though most rural residents opposed it, the people of Montana ratified the new constitution in June 1972. It passed by a margin of 2,532 votes from 230,000 cast in a state that voted for the Republican presidential nominee that year and each of the following four elections.

Despite strong protections against corporate intrusion in state elections, Montanans still were forced to defend against corporate assaults at the ballot box. In 2004, Canyon Resources Inc. instigated a ballot initiative to attempt overturning a state ban on the practice of extracting gold via spraying cyanide over ore piles. Thanks to the 1978 U.S. Supreme Court ruling in First National Bank of Boston v. Bellotti, the corporation was free to spend more than $2 million promoting its own agenda. Every one of 22 donors to the pro-cyanide campaign apparently was a corporation.

Montanans narrowly upheld the cyanide ban, but at great cost to grassroots organizations. All of this helps explain Montana ‘s tenacious refusal to kill the Corrupt Practices Act. In defending the Act at the Montana Court, the state presented extensive evidence of actual corruption in elections, which the U.S. Supreme Court found lacking in Citizens United.

The justices also noted that Citizens United did not address non-partisan and judicial elections and quoted the U.S. Supreme Court’s own ruling in Caperton v. Massey Coal (2009). In Caperton, Justice Kennedy’s majority opinion said, “Judicial integrity [is] a state interest of the highest order,” and large independent expenditures on behalf of a judicial candidate creates “a serious, objective risk of actual bias” that could violate litigants’ due process rights.

Just months later, Justice Kennedy asserted the opposite in Citizens United, “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

Given these incoherent opinions, many citizens suspect the five-man majority placed personal ideology above their duty to honestly interpret the constitution. Not surprisingly, public approval of the Court dropped from 61 percent pre- Citizens United, to 46 percent by last fall.

The forthcoming appeal of the Montana Supreme Court ruling presents those justices an opportunity to weigh recent evidence (like the enormous growth and power of super PACs) and mitigate damage already inflicted. If they fail to self-correct, the Court’s legitimacy may be marred for decades and surely will fuel the growing movement to revoke the Court’s creation of “corporate personhood” via constitutional amendment.

Rather than sit and wait, other Americans might learn from Montana’s history. While relatively few states have experienced such severe corporate exploitation, we all can choose to shift our time and money from reactive measures and electoral politics to proactive, movement-building initiatives and organizations.

Rather than merely hoping Justice Kennedy flops back to the side of reason, Montanans again are seizing the initiative, building support for a constitutional amendment to overrule the Supreme Court, with support from national groups like Move to Amend, Free Speech for People, and Reclaim Democracy! A statewide ballot initiative to call for such an amendment may provide national precedent.

We may never spend 56 days discussing democracy with a broad cross-section of fellow citizens, but we should consider the lessons of Montana ‘s remarkable constitutional convention. Perhaps we should invite personal dialogue with those whose politics differs from ours and explore our common ground.

Desire for self-governance and freedom from corporate corruption defy any partisan loyalties. George Harper, a delegate to the Montana constitutional convention, recalled, “Most of the time I had no idea if the person making a proposal was a Democrat or a Republican…that’s what I loved about it.”

Jeff Milchen is the founder of ReclaimDemocracy.org. At the time of writing, he directed the American Independent Business Alliance and submitted briefs in both Citizens United and WTP v. Montana, arguing that limiting corporate political power is necessary to enable democracy and genuine market competition.

For background, see our comprehensive introduction to Citizens United.

Photos by Jeff Milchen