Jamie Raskin, a constitutional law professor, recently wrote a very interesting article on the Citizens United decision. The irony of the Citizens United case is that the plaintiffs only wanted a ruling stating that the electioneering provisions of the McCain-Feingold campaign finance reform law didn’t apply to them. “But the conservatives sent the parties back to brief and argue the paradigm-shifting constitutional question they were so keen to decide. As dissenting Justice John Paul Stevens observed, the justices in the majority ‘changed the case to give themselves an opportunity to change the law.'”
Raskin states that the influx of money spent by super PACs and dark money 501(c)4 groups in the 2010 election changed the focus of that year’s election from the continuing effects of the subprime mortgage crisis, the BP oil spill, and the Massey Energy coal mine disaster to the urgent importance of deregulating corporations (and, of course, repealing Obamacare). He discusses how, after 200 years of precedent, the Supreme Court changed its views of corporations from an “artificial entity” and “mere creation of the law” to one of personhood.
Raskin describes how corporations are now actually more protected than individuals and small businesses. Defenders say that “corporations should be free to keep their political spending secret because they may face intimidation and even — God forbid — boycotts from consumers who dislike their politics.” Small businesses are at a disadvantage since they don’t have the kind of money to spend that large corporations do in order to have their voices heard.
In another ruling against democratic principles, the Supreme Court overturned a provision of Arizona’s law on public campaign financing, a law that was passed by referendum by its citizens. “The Court ruled that privately financed candidates backed by wealthy interests not only have a right to spend to the heavens to win office but also a right, in states with public financing laws, to lock in their massive financial advantage over publicly financed candidates, whose campaign speech may not be even modestly amplified by public funding when they get outspent. The First Amendment becomes not the guardian of democratic discussion but the guarantee of unequal protection for well-born and wealth-backed politicians. Today corporations can saturate the airwaves and billionaires can spend to their hearts’ content, but government cannot create even a modest megaphone to help poorer candidates be heard.”
Here are excerpts from the article:
In Citizens United (2010), the Court held that private corporations, which are nowhere mentioned in the Constitution and are not political membership organizations, enjoy the same political free speech rights as people under the First Amendment and may draw on the wealth of their treasuries to spend unlimited sums promoting or disparaging candidates for public office. The billions of dollars thus turned loose for campaign purposes at the direction of corporate managers not only can be, but — under the terms of corporate law — must be spent to increase profits. If businesses choose to exercise their newly minted political “money speech” rights, they must work to install officials who will act as corporate tools.
The petitioner, Citizens United, sought only a ruling that the electioneering provisions of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) didn’t apply to its on-demand movie about Hillary Clinton. But the conservatives sent the parties back to brief and argue the paradigm-shifting constitutional question they were so keen to decide. As dissenting Justice John Paul Stevens observed, the justices in the majority “changed the case to give themselves an opportunity to change the law.”
For two centuries, the Court had always regarded the corporation not as a citizen with constitutional rights, but as an “artificial entity” chartered by the states and endowed with extraordinary privileges in order to serve society’s economic purposes. The great conservative Chief Justice John Marshall wrote in the Dartmouth College case (1819), “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence.”
This “artificial entity” understanding of corporate law prevailed until Big Tobacco lawyer and corporate-state visionary Lewis Powell, of Richmond, Virginia, joined the Court. In First National Bank of Boston v. Bellotti (1978), the key forerunner to Citizens United, Powell assembled a bare majority to give corporations and banks the right to spend without limit to influence public opinion in ballot issue campaigns.
The Bellotti decision cracked open the door of campaign finance law, and the Citizens United majority blew that door off its hinges. The Court announced that, when it comes to campaign spending rights, the “identity of the speaker” is irrelevant and an impermissible basis upon which to repress the flow of money speech. What matters is the “speech” itself, never the speaker — a doctrine that would have come in handy for the public employees, public school students, whistleblowers, prisoners and minor-party candidates whose free-speech rights have been crushed by the conservative Court because of their identity as (disfavored) speakers.
Citizens United did not accomplish this feat alone; it had a junior partner in SpeechNow.org v. FEC. This decision came from the US Court of Appeals for the DC Circuit, which struck down limits on what individuals can give to independent expenditure campaigns, a ruling that turbo-charged the super PACs. While Citizens United freed the corporations, SpeechNow.org emancipated billionaires like Sheldon Adelson, the casino king who bets large on right-wing causes.
Moreover, right-wing lawyers are now challenging campaign finance disclosure requirements as unconstitutional compelled speech, like making Jehovah’s Witness schoolchildren pledge allegiance to the flag. They argue that corporations should be free to keep their political spending secret because they may face intimidation and even — God forbid — boycotts from consumers who dislike their politics. In other words, corporations have a right to speak because they are like people, but they should be completely insulated from the speech reactions of natural persons.
Building a public financing system that makes participating candidates at least minimally competitive with privately financed candidates is an interest that the Roberts Court has trashed, in cases like Davis v. FEC (2008) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011). In these decisions, the Court, in essence, ruled that privately financed candidates backed by wealthy interests not only have a right to spend to the heavens to win office but also a right, in states with public financing laws, to lock in their massive financial advantage over publicly financed candidates, whose campaign speech may not be even modestly amplified by public funding when they get outspent. Here, as distorted beyond recognition by the Roberts Court, the First Amendment becomes not the guardian of democratic discussion but the guarantee of unequal protection for well-born and wealth-backed politicians. Today corporations can saturate the airwaves and billionaires can spend to their hearts’ content, but government cannot create even a modest megaphone to help poorer candidates be heard.
Defenders of our new plutocracy point out that there are many thousands of corporations in America, most of them small, but this bit of faux small-business populism is an irrelevant distraction from how the corporate “wealth primary” works in the real world. Major industries that have an “extractive” character and a parasitic relationship with government — Wall Street, Big Oil, Big Pharma, the military-industrial complex — have cultivated a pervasive financial dependency in elected officials that permits them to continue the exploitative symbiosis that economists call “rent-seeking.” Avoiding the hazardous risks of innovation, investment and competition, many conglomerates prefer playing power politics in Washington. They don’t increase the pie; they just grab ever larger slices of it.
These arrangements operate on a simple return-on-investment basis: corporations devote millions to electing and lobbying politicians and then collect hundreds of millions in tax breaks, corporate welfare, sweetheart contracts, bailouts, deregulation and inside deals. This squalid form of “public policy,” which even Republicans are calling “crony capitalism” (in the primaries anyway), works splendidly for those involved but dismally for everyone else, including businesses that lack the finance capital to invest in the political system. A plutocratic state denies us both political justice and a fair economy.