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U.S. Supreme Court v. Democracy: Crucial Battle Underway

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Century-old precedent barring direct corporate spending to control election outcomes is under attack

Last updated November 30, 2009

After hearing arguments during its last term in the case of Citizens United v FEC, the Supreme Court took unusual action by inviting re-argument of the case to evaluate long-standing law (and recent Supreme Court decisions upholding these laws) that prevent corporations from directly spending company funds to influence election outcomes.

ReclaimDemocracy.org chose not to engage in an amicus curiae (friend of the court) brief in this case as we have in two related cases in recent years (Randall v. Sorrell and Nike v. Kasky). We knew some of our close allies (see below) would engage and we believe there is benefit in different organizations delivering the consistent message about the illegitimacy of corporations wielding political “rights.”

At least two amicus briefs filed in support of the appellee (the FEC) directly raise arguments against corporate personhood. It is the centerpiece of one written by Jeffrey Clements on behalf of the Program on Corporations, Law & Democracy; Women’s International League for Peace & Democracy; Democracy Unlimited of Humboldt County, et al. Read their press release here.

Image source: Wall Street Journal

The other brief was submitted by Demos on behalf of the American Independent Business Alliance. AMIBA’s participation illuminates the stark contrast between a group truly representing America’s small businesses and the U.S. Chamber of Commerce, representing global corporations. The Chamber argues for letting corporations dominate elections even more thoroughly. AMIBA’s press release offers an idea of the main argument, or see the full brief.

A ruling is likely by January of 2010.

Notable coverage from other sources (prior to Sept 8)

Read more on the underlying issue of Corporate Personhood

Keep My Investments Out Of Politics

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By Ciara Torres-Spelliscy
First Published September 3, 2009

Like many Americans, I’m but a small-time investor, with investments in my 401(k) account, and that’s about it. I doubt the CEOs of the various corporations in which I own stock see eye-to-eye on many political questions. In Citizens United, a momentous case that is scheduled for re-argument on Sept. 9, the Supreme Court may hold that a corporation has a First Amendment right to spend its shareholders’ money on campaign advertisements that advance its own political agenda, without the knowledge or consent of ordinary shareholders like me. My retirement savings could be used to defeat health care reform, resist new regulations on financial instruments or combat environmental controls; other than liquidating my 401(k) holdings, there would be almost nothing I could do to prevent this.

Over 100 years of federal campaign finance laws kept money from investors like me out of federal politics. Existing laws require corporate managers to make political expenditures through corporate PACs so shareholders, officers and managers who would like the corporation to advance a political agenda can designate funds through options like the best bitcoin wallet for that particular purpose. The Supreme Court itself stated in 1948 that “corporate officials [have] no moral right to use corporate funds for contribution to political parties without the consent of the stockholders.” And, as recently as 1990, Justice Brennan wrote in Austin that the corporate PAC requirement “protects dissenting shareholders of business corporations.”

The Citizens United Supreme Court re-argument, however, makes it plain: Long-standing laws that require corporations to pay for political expenditures through corporate PACs are under attack. Worse, the Supreme Court may use Citizens United as an opportunity to turn back the clock to a time when managers could spend corporate money for political expenditures. If this happens, shareholders will need new protections to guard against self-interested political spending by corporate managers.

Even if the Supreme Court does not use Citizens United to rewrite the prohibitions against the use of corporate treasury money to influence federal elections, there is already a significant amount of corporate money that is making its way into politics. Sound public policy demands that reforms be devised to better protect shareholders’ interests.

Today’s shareholders lack any real ability to consent to political spending by American corporations. Gaps between corporate and campaign finance law make it possible for U.S. corporations to make all kinds of political expenditures without notifying shareholders. In the 28 states that lack federal-style election rules, corporations can give political donations directly from their corporate treasuries to pay for legislative, executive and judicial elections.

Corporate political spending–and all corporate decisions–are designed to advance the bottom line. Yet corporate political spending may well be as troubling to shareholders’ wallets as well as to their political sensibilities.

A recent study of over 12,000 U.S. firms and their political giving before passage of 2002 McCain-Feingold law, entitled “Corporate Political Contributions: Investment or Agency?” (2009) by Aggarwal, Meschke and Wang at the University of Minnesota’s Carlson School of Management, found that large corporate political expenditures are linked with lower shareholder value and less effective corporate management. This study, which included soft money contributions directly from corporate treasury funds that were permissible prior to the 2002 McCain Feingold law, suggests that when managers use corporate funds to make political donations, the donations may advance their political views and own careers–not the interests of the corporations they manage.

In most instances, corporate managers are not required to disclose political spending, so donations pour out under the radar of regulators, shareholders and corporate boards. If corporations were required to disclose such spending, shareholders would, in the face of inappropriate expenditures, have but two blunt and unsatisfactory instruments with which to respond: (1) voting out the board or (2) selling their shares. Instead, we need either prophylactic rules to prevent corporate managers from spending investor money on politics in the first place, or we need to give shareholders a mechanism through which they can register their consent to corporate political spending.

The current Supreme Court, under the leadership of Chief Justice John Roberts, appears ready to change the law–to make explicit what has been implicit in a series of recent rulings–that the “free speech” rights of corporations prevents Congress from regulating corporate political expenditures. Such a ruling could leave corporate managers free to advance their own agendas using other people’s money. Instead, the Court should use the Citizens United case to recognize that the First Amendment protects the free speech interests of shareholders, who should not have their 401(k) accounts diverted in order to fund a candidate or policy they don’t know, don’t like or may even oppose.

Ciara Torres-Spelliscy is counsel at the Brennan Center for Justice at NYU School of Law and co-author of Electoral Competition and Low Contribution Limits.

© 2009 Ciara Torres-Spelliscy

Tactics Being Used to Undermine Citizen Lawmaking

Ballot initiatives are a form of citizen lawmaking enjoyed by citizens in 26 states, with 24 of those enabling proactive measures and two allowing direct democracy only to overturn laws passed by the legislature. Created through voter petition drives, initiatives give voters the opportunity to enact policy on issues on which elected legislatures refuse to act or make laws rejected by most voters. As of 2022, 18 states enable initiatives to amend state constitutions and 23 states allow initiatives to enact statutes. These initiatives may be direct (initiative organizers craft the language the goes to the ballot) or indirect (legislators are charged with crafting the legal to implement voters’ will).

Ballot initiatives provide a crucial opportunity for citizens to step in when legislators ignore issues of importance to many citizens, or when elected officials rule contrary to the wishes of those who elected them. Attacks on citizen lawmaking have escalated in recent years as citizens increasingly pass laws to decriminalize recreational drugs, increase tax equity, raise minimum wages, and more. In most cases, it’s “red state” Republicans seeking to squelch the power of citizens (many of whom identify as Republican, but who favor some progressive or libertarian policies). Here are the tactics we’ve identified that are currently being pushed to obstruct or undermine citizen lawmaking.

I. Prevent or Impede Initiatives from Reaching Voters

  1. Constrain Signature Gatherers
  2. Refuse to Bring to a Vote
  3. Extreme Signature Requirements
  4. Disqualify Initiatives Based on Technicalities
  5. Delay Approval of Petition Language
  6. Ban Residents from Signing a Petition Across State Lines

II. Erect Barriers to Passage

  1. Require Supermajorities
  2. Manipulate Voting Dates

III. Prevent or Sabotage Implementation

  1. Delay or Defund
  2. Preempt or Refuse to Implement
  3. Override Citizen Votes
  4. Alter Intent of Successful Initiatives

I. Prevent or Impede Initiatives from Reaching Voters

1. Constrain Signature Gatherers
After the State legislature failed to act, Utah citizens adopted a series of progressive laws through ballot initiatives and referendums. In response, legislators passed a law making signature gathering more difficult, by mandating hourly pay for signature gatherers and requiring these organizers to wear badges, prompting worries of harassment by dissenters. The bill was funded by an out-of-state, dark money group and dramatically inflates costs to qualify ballot measures. In 2021, Arkansas legislator adopted a bill to bar petition circulators with “disqualifying convictions,” circumventing an earlier background check requirement for signature gatherers that was struck down by the state Supreme Court.

2. Refuse to Bring to a Vote
In 2022, Arkansas Board of Election Commissioners blocked a ballot proposal legalizing recreational marijuana for the fall ballot (voters already approved a constitutional amendment legalizing medical marijuana in 2016). The panel refused the measure, as they didn’t believe the ballot title fully explained to voters the impact of the amendment.

Also in 2022, Michigan GOP officials blocked two ballot measures (the Reproductive Freedom initiative and a voting rights initiative) based on technicalities they had no authority to address. On appeal, the Michigan Supreme Court ordered the questions be placed on the November ballot.

In South Dakota in 2023, a Republican Representative introduced a bill for a constitutional amendment to outlaw future ballot measures if they are “too similar” to measures rejected in the past. Of course, legislators reintroduce similar bills every session.

3. Extreme Signature Requirements
An Ohio bill introduced in 2023 would require signatures from all 88 counties instead of the current 44, making signature gathering impossible without major financial backing. In 2021, Idaho’s Supreme Court blocked a law requiring signatures from 6% of registered voters across all 35 legislative districts to qualify a ballot question. A virtually identical bill is pending as of March 2023 which also shrinks the window to collect those signatures to two months, effectively eliminating citizen lawmaking. Two similar signature distribution bills were defeated in Montana in 2021. Just one year later, the Eight Circuit U.S. Appeals Court let stand a similarly onerous requirement in Nebraska.

A 2021 law passed in South Dakota requires canvassers to collect signatures on a single sheet of paper that includes the full text of the initiative in 14-point font, creating documents as large as beach towels.

4. Disqualify Initiatives Based on Technicalities
In August 2022, Republicans on Michigan’s Board of State Canvassers barred an abortion rights initiative that garnered a record 735,000 petition signatures, based on typography. The same officials used another technicality to deny a 2022 voting rights initiative. On Sep. 8, 2022, the Michigan Supreme Court ruled the Board lacked authority to reject the measures and ordered them onto the ballot, where both measures passed.

Also in 2022, the Arkansas State Board of Election Commissioners disqualified a marijuana legalization initiative because the ballot title did not convey all impacts of the initiative. An appeal to the State Supreme Court was pending as of Sep. 9).

5. Delay Approval of Petition Language
In Missouri in 2019, opponents of a law restricting abortions sought to repeal it via ballot initiative. GOP Secretary of State Jay Ashcroft stalled vetting the language, leaving an impossibly short two-week window to gather signatures. The initiative backers sued and won when a court ruled Ashcroft’s obstruction was unconstitutional.

6. Ban Residents from Signing a Petition Across State Lines
Vetoed by the governor in 2021, an Idaho bill prevented people from signing petitions outside of Idaho, would impact students, active military members, and religious missionaries.

Map courtesy of Ballotpedia

II. Erect Barriers to Passage

7. Require Supermajorities
After a series of progressive policies adopted via ballot initiative, Arizona legislators introduced bills requiring a 60% supermajority to pass future initiatives and an extreme 67% supermajority for future tax laws. Though these bills failed, legislators placed a referendum on the 2022 ballot requiring 60% approval for tax initiatives, which passed by a one percent margin. Similar bills requiring supermajorities for ballot initiatives were defeated by voters in 2022 in Arkansas and South Dakota. Supermajority requirements are in effect in Florida, Mississippi, and Nevada.

8. Manipulate Voting Dates
After Oklahomans successfully petitioned for an initiative to legalize marijuana, Governor Kevin Stitt (R) called a special election for the cannabis measure in March of 2023, even though the state already had elections scheduled on both Feb. 14 and  April 4.  The measure was rejected by a 22-point margin. Though it clearly was not a decisive factor, such stand-alone elections typically skew toward older, whiter voters.

III. Prevent or Sabotage Implementation

9. Delay or Defund
After Missouri voters expanded Medicaid in 2020, state Republicans continue attempting to defund the expansion, even as program delays prompts federal regulator intervention and maternal mortality in the state sores. Missouri lawmakers also sought to delay minimum wage increases adopted by voters in 2018, which benefits low-income and minority workers.

10. Preempt or Refuse to Implement
In Idaho, state legislators passed a law preempting an initiative on the fall ballot, causing the initiative’s organizers to pull the bill. The legislators’ new law would repeal the initiative if it were adopted by Idaho voters.

In 2021, Missouri legislators refused to implement a Medicaid expansion law passed via voter initiative the previous year. In 2018, Maine Republican Governor Paul LePage refused to implement a voter-adopted Medicaid expansion package, which was overwhelmingly approved by an 18-point margin. LePage defied a State Supreme Court directive to implement the initiative. Only after the governorship changed two years later was the initiative implemented.

11. Override Citizen Votes 
Just six years after Montanans voted overwhelmingly to keep Election Day registration, Republican legislators rendered these votes meaningless by doing away with the practice in 2021.

More than 12,000 voters used Election Day registration in 2016, comprising 2.3% of the statewide vote. In Arizona, Republicans bucked voters who increased taxes to fund education via ballot initiative in 2020 by seeking to exempt some businesses from this tax increase.

A Kansas bill introduced in 2023 would allow local municipalities to restrict abortion, after courts protected the right in 2019 and voters preserved the right again in 2022 by striking down a restrictive ballot measure.

12. Alter the Intent of Successful Initiatives
After paying their dues for a conviction, 20 people across Florida applied for and were granted voter registration under Amendment 4, a constitutional amendment restoring voting rights of most felons, which was adopted by 65% of Florida voters in 2018. After exercising their supposedly restored right, they were arrested by state law enforcement for voter fraud, as Florida Republicans hamstrung voters’ choice and slipped additional language into the amendment stating fees and restitution must also be paid. There exists no database to check for unpaid liabilities, leaving an estimated 85,000 Floridians in voting limbo. A judge called the fiasco an “administrative nightmare.”

In 2020, Montanans passed a recreational marijuana initiative. State Republicans changed voters’ intent, to benefit state conservation programs, and instead directed revenue into addiction recovery and economic development.

In 2018, Utah citizens voted to expand Medicare via ballot initiative; a year later, Republican legislators replaced the voter-adopted proposition with their own bill, which is estimated to cost five times more than the original proposition.

When Arizona legislators sought to pass Proposition 128 in 2022, allowing state lawmakers to amend voter-approved ballot initiatives, nearly two-thirds of voters rejected the proposal.

Related Reading

The Escalating Attacks on Citizen Lawmaking commentary by Reclaim Democracy! founder for Governing

Recommended Resources

Jeff Milchen, Founder

Jeff Milchen founded Reclaim Democracy! and served as its first Executive Director. He also co-founded and co-directed the American Independent Business Alliance (AMIBA). He currently serves as a board member, periodically facilitates “From Here to Democracy” workshops, and writes often on voting rights and political reform.

Milchen’s reporting and commentaries have appeared in dozens of publications all over the political spectrum, including the San Francisco Chronicle, The Baltimore Sun, The Ecologist, The Chicago Tribune, The Washington Post, Washington Times, La Prensa and many more. He also authored the standard reference for communities organizing “buy local” coalitions. He’s helped facilitate amicus briefs to the U.S. Supreme court in five cases: Nike v Kasky, Randall v Sorrell (for Reclaim Democracy!) Citizens United v FEC (cited by Justice Stevens in his dissent), ATP v Bullock, and Masterpiece Cake Shop v Colorado. The latter briefs were submitted on behalf of AMIBA. Milchen lives in Bozeman, Montana.

Jeff Milchen
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A Leap Forward for Democracy Is Within Our Grasp

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But Our Chance to Preempt Voter Suppression Could Expire at Any Moment

Editor’s note: for more recent reporting on pending federal voter protection bills, see this update.

March 17, 2021

When the U.S. House of Representatives passed the For the People Act (H.R. 1 in the House, S. 1 in the Senate) on March 3, all but one Democrat voted in favor. Every Republican vote opposed it. 

Passing the voter protections of the For the People Act is the only path for democracy advocates to halt many of the 250-plus voter suppression bills stacked up in state capitols around the country. Republican vote suppressors have an easier task: they need only delay passage of S. 1 while more of those state bills become law — putting the onus on voting rights defenders to overturn laws in court, even if S. 1 passes. 

Each passing day also brings another chance for Senate control to flip back to Republicans. Many Democratic elders hail from states where, in the event of their death, a Republican governor would select their replacement or the seat would remain vacant until a special election is held. Such an event would almost certainly flip Senate control to Republicans by at least a 50-49 margin and doom strong voter protection. Democrats don’t have the luxury of moving methodically.

The urgency also comes from the potency of the For the People Act. If passed, S. 1 would be the greatest forward leap for democracy in generations. While voting rights are central to the bill, it also would secure election processes and take vital steps to neutralize the power of big money to determine our choices and control politicians. This includes a 6 to 1 match for small donor candidate contributions, giving candidates a huge incentive to increase time spent engaging normal people, rather than courting megadonors. 

Regarding the 2010 Citizens United v FEC ruling, the For the People Act says, “The Supreme Court’s misinterpretation of the Constitution to empower monied interests at the expense of the American people in elections has seriously eroded over 100 years of congressional action to promote fairness and protect elections from the toxic influence of money.” S. 1 backs up the words with tough controls over corporate electioneering. Corporate executives would be barred from using shareholders’ money for political spending without first demonstrating shareholder support — a step few corporations would attempt.

Filling hundreds of pages, the For the People Act is vast, largely due to its thoroughness. The Brennan Center for Justice created an excellent guide to the Act for those who want to dive deep. To help understand what the Act would do, we summarized the provisions and placed them in 3 groupings.

Preventing Disenfranchisement & Making Voting Easier
  • Establish two weeks of in-person early voting, including Sundays and during non-business hours;
  • Require states to create nonpartisan redistricting commissions (for US Congressional districts) and quantifiable criteria for district drawing (addresses district gerrymandering);
  • Ends prison gerrymandering by counting people as residents of where they last lived for apportioning representation, not where they’re incarcerated;
  • Make it a crime to mislead voters with the intention of preventing them from voting;
  • Allow 16 and 17-year olds to pre-register so they’ll be on voter rolls when they turn 18;
Increasing Election Integrity
Reducing the Power of Money Over Candidates & Elections
  • Improve campaign finance disclosure rules;
  • Ban corporations from spending on campaigns unless they have a process to determine the political will of shareholders;
  • Require presidential candidates to disclose their tax returns;
  • Provide public financing for House campaigns by matching small donations at a 6:1 rate, so your $10 donation yields $70 for the candidate. This measure would incentivize candidates to seek out small donations from every constituent, rather than focusing on the wealthy. It also would lead to a more diverse candidate pool since access to wealthy donors would no longer be a prerequisite. The program would not use tax revenue — it will be funded by a surcharge on criminal and civil penalties paid by corporations to the federal government.

What the Act Leaves Undone
The For the People Act does not fully eliminate the need to pass the John Lewis Voting Rights Advancement Act and fix earlier damage to the Voting Rights Act by the U.S. Supreme Court. The Washington, D.C. Admission Act (HR. 51) is needed to grant full political rights to citizens in our capital and The Vote at Home Act advances vote-by-mail protections. Enacting the For the People Act also will not eliminate the need to drive an affirmative right to vote into our Constitution. Finally, the bill passed by the House needs cleanup to purge overly prescriptive language re election administration (e.g. micromanaging local election officials).

But the For the People Act would transform U.S. elections for the better. It will improve security, transparency, voter access, and protect citizens from the barrage of voter suppression bills encompassing more than 45 distinct tactics across 43 state legislatures.

To be clear, there are some unnecessary, inappropriate and potentially unconstitutional provisions in HR. 1, as passed by the House. Making Election Day a holiday would undermine the importance of opening a two week window to spread out voting and diminish the opportunity to disrupt voters. And the service workers most challenged for time to vote don’t get a day off just because it’s a holiday. The bill also contains measures unrelated to voting (e.g. new ethics rules for the U.S. Supreme Court) that, regardless of merit, should be expunged to remove easy lines of attack from opponents. Election law expert Rick Hasen wrote (Wa. Post account required) the best good-faith critique of HR. 1 we’ve seen. Jessica Huseman critiques the timeline for demands thrust upon election administrators in the bill (as passed by the House) and the Brennan Center published a thorough response to these critiques.

While expanding democracy should be a non-partisan cause, Republican Senators also have signaled their opposition. So passage of S. 1 will depend on the 48 Democratic and two Independent Senators valuing our voting rights enough to reform (or eliminate) the filibuster and force a vote on the merits of the bill. Democracy advocates received a boost on March 16 when President Biden announced his support for filibuster reform after months of proclaiming Republicans were capable of good faith negotiation.

Failing to pass the For the People Act will enable a wave of state-level voter suppression laws that could lock Republicans into control of (at least) the House of Representatives and many state legislatures for years to come. Let’s contact our Senators’ offices to urge reforming the filibuster and demand that S. 1  receive a hearing and vote. Along with direct communication to Senators, sending a letter to the editor of your local paper and calling in to talk radio shows are key ways to influence your Senators.

By Reclaim Democracy! staff. Research by Brittany Trushel.

Thanks to Stephen Wolf’s Voting Rights Roundup newsletter from Daily Kos for helping follow and understand state and federal voting rights bills. To fully grasp the scope of voter suppression tactics in play, see 50 Ways to Disenfranchise and Suppress Voters.

Pass For the People Act., HR1

Related Reclaim Democracy Resources

Time to Reverse Corporate “Constitutional Rights”

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By Representative Pramila Jayapal
February 5, 2020

This past fall, Amazon challenged the proudly progressive character of my home city, Seattle, pouring $1.5 million into its City Council elections.

In doing so, Amazon placed not just a thumb but also a fistful of cash on the scales of our democracy. Thanks to immediate organizing on the ground and the speaking out of elected officials, the cynical and last-minute corporate spending on elections backfired: Nearly all of the Amazon-backed candidates lost their races.

However, on this 10th anniversary of the US Supreme Court ruling in Citizens United v. Federal Election Commission that catalyzed our current era of super PACs and corporate power, the clear danger posed by money in politics is real. Citizens United vastly expanded the rights of corporate entities and the super-wealthy to spend or invest their money to influence political elections and deepened the corrupting electoral influence of big money.

In the 10 years since Citizens United, we’ve seen newly created super PACs and “dark money” political nonprofits spend staggering sums, taking in unlimited donations without having to disclose them. While they cannot coordinate their spending with specific candidate campaigns, they can spend on political attack ads and other forms of political influence. From 2010 to 2018, super PACs spent roughly $2.9 billion on federal elections while dark-money spending rose from $129 million in the period from 2000 to 2008 to $964 million from 2010 to 2018.

It is important to note that Citizens United was not the first time political money in elections has been equated with “free speech” and corporations have been equated with people with constitutionally protected rights. The claim that corporate entities are legal persons with constitutional “rights” has been around for over a century.

Political money as free speech originated in the 1976 Buckley v. Valeo decision, while corporate political free speech rights began with the 1978 First National Bank v. Bellotti ruling.

But corporate constitutional rights extend beyond First Amendment free speech rights. Corporate constitutional rights began in the 1880s when Supreme Court Justices hijacked the Bill of Rights and the 14th Amendment—intended to guarantee equal protections for black Americans—claiming the rights of people also applied to corporate entities. Courts also interpreted sections of the original Constitution to protect corporate “rights” over those of people and communities, even though corporate entities are not mentioned anywhere in our Constitution.

The collective consequences of this have been devastating.

The corporate First Amendment “right not to speak” means that consumers may end up knowing less about what’s in the food they eat. The corporate First Amendment religious “right” granted in the 2014 Hobby Lobby decision gives a for-profit corporation the right to deny reproductive health care coverage based on religious belief.

The corporate Fourth Amendment search and seizure “rights” prevents warrantless inspections of many businesses to ensure safe working and environmental protections.

The corporate Fifth Amendment takings “rights” defines certain corporate regulations that protect private land as a “taking,” with the corporation being justly compensated for lost current and/or future profits.

Therefore, any full remedy to the questions of money into elections must address not only the immediate effects of Citizens United but also the entirety of corporate constitutional rights.

That is why in 2019, I introduced House Resolution 48, the We the People Amendment calling for ending all corporate constitutional rights—as well as political money as free speech.

The flood of money into elections following Citizens United and other court decisions has eroded public trust in our elected leaders to seriously address issues like health care, climate change, wealth inequality, guns, and infrastructure. Only by ending all of these corporate constitutional rights and the corrupting influence of political money as “free speech” can we have a government that represents all of us rather than only the interests of the super-wealthy.

The We the People Amendment (HJR 48), co-sponsored by 67 of my House colleagues, enjoys widespread support with the American public. The national group Move to Amend has been educating and organizing citizens across the country, building an authentic, grassroots movement seeking a systemic solution to address the harms of Citizens United.

The American people urgently want us to return our government back to the people instead of the highest bidders. It’s up to all of us to make that happen.

Pramila Jayapal represents Washington’s 7th District in the United States House of Representatives.