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The Supreme Court's 5-to-4 decision last week giving American corporations the right to unlimited political spending was an astonishing display of judicial arrogance, overreach and unjustified activism.
Turning its back on a century of practice and decades of precedent, a narrow right-wing majority on the court decided to change the American political system by tilting it decisively in favor of corporate interests.
An unusually blunt headline in Friday's print edition of The New York Times told the story succinctly: "Lobbies' New Power: Cross Us, and Our Cash Will Bury You."
Think of this rather persuasive moment in a chat between a corporate lobbyist and a senator: "Are you going to block that taxpayer bailout we want? Well, I'm really sorry, but we're going to have to run $2 million worth of really vicious ads against you." The same exchange might take place on tax breaks, consumer protections, environmental rules and worker safeguards.
Defenders of this vast expansion of corporate influence piously claim it's about "free speech." But since when is a corporation, a creation of laws passed by governments, entitled to the same rights as an individual citizen? This ruling will give large business entities far more power than any individual, unless you happen to be Michael Bloomberg or Bill Gates.
The only proper response to this distortion of our political system by ideologically driven justices is a popular revolt. It would be a revolt of a sort deeply rooted in the American political tradition. The most vibrant reform alliances in our history have involved coalitions between populists (who stand up for the interests and values of average citizens) and progressives (who fight against corruption in government and for institutional changes to improve the workings of our democracy). It's time for a new populist-progressive alliance.
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Next will come legislation to turn back the Supreme Court's effort to undermine American democracy. Sen. Charles E. Schumer and Rep. Chris Van Hollen are working with the White House on a measure to rein in the reach of the Supreme Court ruling.
Their bill is still being written, but the ideas they're considering include prohibiting political spending by corporations that receive government money, hire lobbyists or make most of their income abroad.
And shouldn't shareholders have the right to vote before a corporation spends money on politics? Do we want foreign-owned corporations, especially those owned by foreign governments, to exercise an undue influence in our politics? Imagine what an enterprise owned or influenced by the Chinese or Russian governments might try to do to a politician who campaigns too ardently for human rights?
My favorite idea: Requiring chief executives to appear in ads their corporations sponsor, exactly as politicians have to do. ("I'm Joe Smith, the chief executive of Acme Consolidated Megacorporation, and I approve this message.")
The Philadelphia Inquirer Jan. 25, 2010, Editorial: Corporate blunder
Congress must immediately blunt the impact of the Supreme Court's disastrous decision allowing unlimited corporate spending on elections.
A 5-4 majority of the court ruled that the Constitution's guarantee of free speech means corporations can spend whatever they want to support or defeat an individual candidate. The ruling overturns a century of limits that kept firms from using profits to directly affect political campaigns.
If you thought lobbyists and corporate fat cats already dominated politics, just wait. The decision assures that powerful special interests, such as the insurance industry and drug manufacturers, will enjoy a playing field tilted heavily in their favor in Washington. The losers will be average citizens and consumers whose donations can't compete with the Chamber of Commerce's war chest.
Although the court did not address explicitly spending by labor unions, the decision almost certainly will allow labor to spend freely as well. There's already too much money in campaigns. The answer is not a new arms race.
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The court reversed its own rulings of 1990 and 2003, which upheld campaign-finance restrictions. Not only did Chief Justice John G. Roberts Jr., Justice Samuel Alito, et al. overturn recent precedent, but they overreached to broaden the impact of this case far beyond its original question.
So much for judicial restraint by the court's conservatives. It's a glaring case of judicial activism.
The majority's twisted reasoning is that corporations are entitled to the same free-speech rights as people. The court overlooked the fact that corporations and unions had not been banned from participating in elections previously. They were allowed to spend on elections through political action committees, which raise money from employees and dues-paying members.
The only bright spot was the requirement for corporations to disclose their contributions. Without it, audiences wouldn't know who was paying for the new flood of negative ads you'll be seeing.
Rep. Bob Brady (D., Pa.) and other lawmakers with jurisdiction on the matter pledge to do what they can soon to mitigate this awful ruling. They could require stronger rules against campaigns' coordinating with outside groups, or require publicly traded firms to get approval from shareholders before spending on elections.
Congress also needs to fix the public-financing system for presidential elections, a cure that was needed even before the new ruling. The harm from this court decision can't be overstated.
NY Times, Editorial The Court’s Blow to Democracy, January 21, 2010
With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.
Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.
As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.
The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)
The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.
In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.
This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.
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The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.
The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.
After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.
In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.” History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.
Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns. It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.
These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned. The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.
In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.
Many of those commenting on the decision in Citizens United v. Federal Election Commission have focused on the power-grab part. I agree with them. It was unnecessary for the court to go so far when there were several less-radical grounds available. It was audacious to seize the opportunity to overrule precedents when the parties had not pressed this issue and the lower courts had not considered it. It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process. […]
First, the majority flung about dark warnings of "censorship" and "banned" speech as if upholding the existing rules would leave corporations and labor unions with no voice in the political process. Untrue. Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by their political action committees from employees and members. This is hardly banning speech.
Second, in the face of logic and history, the majority acted as if there could be no constitutional distinction between a corporation and a human being. Untrue. The Supreme Court has long held that corporations are considered "persons" under the Constitution and are therefore entitled to its protections. For more than a century, Congress has barred corporations from making direct contributions to political candidates, with no suggestion that it must treat corporate persons the same as real ones; that prohibition stands, at least for now. The "conceit" of corporate personhood, as Stevens called it, does not mandate absolute equivalence. That corporations enjoy free-speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?
Third, misreading its precedents and cherry-picking quotations, the majority acted as if the chief case it overturned was an outlier.
Stampede Toward Democracy, By JAN WITOLD BARAN, NYTimes, January 25, 2010
Because of the 1990 ruling, corporations and unions have been limited to so-called issue ads, which usually end with statements like “call Candidate Jones and tell her” — take your choice — “to stop raising taxes/ support health care reform/ support alternative energy sources.” Now that Citizens United has overturned Austin, corporations and unions can run independent ads that contain words of express advocacy. So instead of “Call Candidate Jones and demand that she not raise taxes,” it can be: “Vote for Candidate Smith because Candidate Jones wants to raise taxes.”
There is also no factual basis to predict that there will be a “stampede” of additional spending. As the court noted, 26 states and the District of Columbia already permit independent corporate and union campaign spending. There have been no stampedes in those states’ elections. Having a constitutional right is not the same as requiring one to exercise it, and there are many reasons businesses and unions may not spend much more on politics than they already do. As such, the effect of Citizens United on the 2010 campaigns is debatable.
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While this may be disheartening to Washington lawyers and lawmakers, it should be a breath of fresh air to everyone else. The greatest benefit of Citizens United is that it will restrain Congress from flooding us with arcane, burdensome, convoluted campaign laws that discourage political participation.
[…]In striking down a federal statute and explicitly overturning prior decisions, the court has changed the nature of elections in the United States. At the same time, the conservative justices have demonstrated that decades of conservative criticism of judicial activism was nonsense. Conservative justices are happy to be activists when it serves their ideological agenda.
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For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government. No such deference was evident when the court's five most conservative justices struck down this provision of the McCain-Feingold law on Thursday.
Nor did the decision defer to judicial precedent. In 2003, in McConnell vs. Federal Election Commission, the Supreme Court in a 5-4 decision upheld this same law. In fact, in an earlier case in 1990, the court said that legislatures may restrict corporate spending in election campaigns. The court's decision on Thursday expressly overruled these decisions.
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Newsweek, Stuart Taylor Jr., The End of Restraint,Published Jan 22, 2010
[…]So the court's decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all five of the more conservative justices are "judicial activists," the same imprecation that conservatives have for so long—and often justifiably—hurled at liberal justices.
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To be sure, two types of corporations have compelling arguments for exemption from the ban on corporate campaign spending. Congress has long exempted media corporations. The First Amendment explicitly protects freedom "of the press" as well as of speech. Those who buy stock in media companies know of, and implicitly consent to, their roles in supporting and opposing candidates. The other group consists of nonprofit ideological corporations whose members pool their money precisely for the purpose of influencing policy. Examples are the Sierra Club, the NRA, and the ACLU. Since 2002 Congress has banned these corporations from election spending—not to prevent corruption by these groups, but rather to stifle "negative attack ads" criticizing members of Congress and other candidates.
The court could, and should, have exempted nonprofit ideological groups without disturbing the ban on business corporations and union campaign spending. But all nine justices passed up the opportunity to carve out such a pragmatic, principled decision. The liberals thereby demonstrated that they are all too ready to sacrifice the First Amendment rights of real citizens who want to pool their money for election spending. But the conservatives—all too eager to expand the political power of big business in the guise of protecting First Amendment rights—are in the driver's seat.
Jonathan Alter, High-Court Hypocrisy, From the Newsweek magazine issue dated Feb 1, 2010
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What's the remedy? A constitutional amendment is tempting, but tampering with the First Amendment is a bad idea. The best option is Sen. Dick Durbin's ingenious campaign-reform bill. The idea, which already works well in New York City and other localities, is to set up a public-financing system that rewards candidates who attract small donors. House candidates, for example, who raise at least $50,000 in donations of $100 or less would be eligible for $900,000 in public money. The president must move the bill to the center of his agenda and mobilize his 13 million 2008 contributors to pressure Congress to enact it.
New laws regulating corporate governance are also essential. Britain requires shareholders to vote on corporate political expenditures. We should do the same, and adopt Arlen Specter's bill banning political contributions from corporations that contract with the government.
As of last week, the latter is probably unconstitutional. Until one of these hypocrites retires, we can't expect the judiciary to protect average citizens from the power of big money. "I hope we shall crush in its birth the aristocracy of our moneyed corporations," Thomas Jefferson wrote, in a line that Antonin Scalia and others who claim to be guided by the Founders ignore. Jefferson was too hard on corporations, which create wealth and employ people (though the vast majority work for small businesses). But for 100 years, the Supreme Court ruled that our Constitution permitted restraints on concentrated power. Today's Roberts Court Radicals don't believe in restraint, especially when it comes to themselves.
Ronald Dworkin, NYRblog, The "Devastating" Decision, January 28, 2010
[…]The Court has given lobbyists, already much too powerful, a nuclear weapon. Some lawyers have predicted that corporations will not take full advantage of it: they will want to keep their money for their business. But that would still permit carefully targeted threats. What legislator tempted to vote for health care reform or Obama’s banking reorganization would be indifferent to the prospect that his reelection campaign could be swamped in a tsunami of expensive negative advertising? How many corporations fearful of environmental or product liability litigation would pass up the chance to tip the balance in a state judicial election?
On the most generous understanding the decision displays the five justices’ instinctive favoritism of corporate interests. But some commentators, including The New York Times, have suggested a darker interpretation. The five justices may have assumed that allowing corporations to spend freely against candidates would favor Republicans; perhaps they overruled long-established laws and precedents out of partisan zeal. If so, their decision would stand beside the Court’s 2000 decision in Bush v. Gore as an unprincipled political act with terrible consequences for the nation.
We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised.
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The main theoretical flaw in Kennedy’s opinion is different, however. The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument—-that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.
Kennedy’s opinion left Americans very little room to protect themselves against this further degradation of their democracy. But it did leave some. He acknowledged that the ruling does not prevent Congress from requiring reasonable disclosures and disclaimers in corporate advertising. I believe Congress should require a prominent statement in every such ad disclosing any corporate sponsors and declaring that their support represents the opinion of the corporation’s officers, who have a duty to promote the corporation’s own interests, and not necessarily the opinion of any of their shareholders who are actually paying for the ad.
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TI-USA statement to U.S. Supreme Court’s ruling in Citizens United v. FEC, Washington, D.C. January 25, 2010
The Supreme Court decision in Citizens United v. FEC, which finds no difference between a corporate person and a real person and allows unlimited corporate spending in elections, may have significant negative implications for the U.S. political system as well as political finance reform efforts around the world.
TI-USA joined an amicus curiae brief submitted by Justice at Stake in the Citizens United case, arguing against Citizen United’s position and warning of the harmful impact the Court’s ruling could have on judicial selection in states in which judges are elected, which is the majority of states. […]
The Court’s sweeping decision increases the likelihood that politicians will accept campaign funding from corporations in exchange for policy favors and that candidates will feel indebted to corporations that engage in large independent spending in their favor or against their opponents. […] Although the Court ruled that Congress can require corporations to disclose their spending and run disclaimers with their advertisements, prompt disclosure has not yet effectively mitigated the potentially corrupting effect of money in politics.
The ruling could have an adverse impact on campaign reform efforts if the United States is perceived to backpedaling efforts to address on the corrupting influence of money in politics.
