Wisconsin Governor Scott Walker called 7th Circuit Judge Diane Sykes “one of our favorite jurists.”
ON FEBRUARY 16, ABOUT 200 people gathered on the steps of the Wisconsin state capitol. “It’s fitting that we stand out in the cold,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign. “That’s where the Supreme Court has left us.”
He was referring to the court’s recent decision in Citizens United v. Federal Election Commission, which granted corporations the right to spend unlimited funds on so-called independent expenditures to influence the outcome of elections. The crowd heartily agreed with McCabe. Signs said: “No Corporate Takeover of Elections,” “Free Speech, Not Fee Speech,” “Money Is Not Speech, Corporations Are Not Persons.” And a chant went up: “Overrule the Court.”
Ben Manski, executive director of the Liberty Tree Foundation, drew the crowd in with a historical analogy.
“Susan B. Anthony, the great suffragist and abolitionist, was born” on February 15, 1820, he said. “Were she alive now, she would be here, celebrating with us, marching to overrule the Court. On a future day, a multitude will gather on these same steps and look back at what we here dare to do, and they will thank you.”
What the crowd was daring to do was nothing less than kick off a nationwide grassroots campaign to amend the Constitution not only to overturn the court’s reckless decision but also to state, once and for all, that corporations do not have the same rights as persons.
Make no mistake about it: The court’s ruling in Citizens United, if left to stand, will destroy whatever hope we may ever have had of democracy in this country. It will entrench corporate power as never before. And the promise of America will be dashed.
Fighting Bob La Follette, the great Senator from Wisconsin and the founder of this magazine, warned throughout his career about the looming threat posed by corporate power. When he ran for President in 1924, he said: “Democracy cannot live side by side with the control of government by private monopoly. We must choose, on the one hand, between representative government, with its guarantee of peace, liberty, and economic freedom and prosperity for all the people, and on the other, war, tyranny, and the impoverishment of the many for the enrichment of the favored few.”
Yes, we must choose.
And we must choose now.
To read the 5-4 majority decision in Citizens United is to look at a fun-house mirror. The case, most narrowly, concerned whether the rightwing nonprofit group Citizens United, which is partially funded by corporations, could run an anti-Hillary Clinton documentary on cable and whether it could promote the film with ads on TV close to election time. The McCain-Feingold law prohibited corporate-funded independent ads during such a timeframe, and Citizens United challenged the constitutionality of the law as it applied to this particular instance.
But the Court’s majority was not interested in ruling narrowly. Justice Anthony Kennedy, writing for the majority, threw out decades of Supreme Court precedents. Writing in the most sweeping way, he declared that “political speech of corporations or other associations” cannot “be treated differently under the First Amendment simply because such associations are not ‘natural persons.’ ”
The logic of the Court’s argument would throw out all restrictions on corporate expenditures. “Political speech must prevail against laws that would suppress it, whether by design or inadvertence,” it said. This seems to justify unlimited direct gifts to candidates, though the majority didn’t quite go there. But it went everywhere else.
The decision asserted, astonishingly and without evidence, that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” It added: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” And it asserted that “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”
Justice John Paul Stevens, at eighty-nine writing eloquently in dissent, warned: “Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.” The Court’s decision, he added, undermines the integrity of our democratic institutions and “will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process.”
Stevens cut to the heart of the matter and laid out why corporations should not be treated as persons. “In the context of election to public office, the distinction between corporate and human speakers is significant,” he argued. “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. . . . Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.” Later, he added, witheringly: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
Stevens also invoked our Founders. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind,” he wrote. “Thomas Jefferson famously fretted that corporations would subvert the Republic,” Stevens observed, and in a footnote, he provided the quotation from Jefferson from 1816: “I hope we shall
. . . crush in [its] birth the aristocracy of our monied corporations.”
By an overwhelming margin, the American people have sided with Justice Stevens and against the Court’s majority. According to a Washington Post-ABC News poll, 80 percent of the American people oppose the Court’s decision, and 65 percent “strongly” oppose it. “The poll shows remarkably strong agreement about the ruling across all demographic groups,” noted Dan Eggen of the Post. “The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent), and independents (81 percent).”
This represents a huge base of support for overturning the decision.
But how to do it?
Some members of Congress are hoping to blunt the effect of the decision legislatively. Senator Sherrod Brown of Ohio introduced a bill that would require corporations to get prior approval of their shareholders before launching political ads. And Senator Charles Schumer of New York and Representative Chris Van Hollen of Maryland began circulating drafts of legislation that would ban independent campaign expenditures by corporations that are more than 20 percent foreign owned. They would also ban such expenditures by any company that receives taxpayer support through either the Troubled Asset Relief Program or through federal contracts. And their bills would require a great deal more disclosure.
“If we don’t act quickly, the Court’s ruling will have an immediate and disastrous impact on the 2010 elections,” Schumer said. “Our goal is to advance the legislation quickly, otherwise the Supreme Court will have predetermined winners of next November’s election—it won’t be Republicans, it won’t be Democrats, it will be corporate America.”
But the Democrats in Congress aren’t acting quickly on this. And even if they did, they’d run into an unmovable object: The Supreme Court’s decision is now the law of the land. The Court would likely strike down any legislation that went against it.
“These are noble efforts on the Hill, but they misdiagnose the problem,” says Lisa Graves, executive director of the Center for Media and Democracy. “We shouldn’t waste energy on legislation that won’t pass a filibuster or won’t pass muster with this five-member majority on the court.” (Graves, by the way, calls Citizens United “Bush v. Gore on steroids. That decision affected only one, or at most two, elections. This will affect many elections to come.”)
There’s another approach, floated by Ralph Nader and by Robert Weissman, the new president of Public Citizen. While they support legislative efforts, they say the President could issue an executive order refusing to “contract with or provide subsidies, handouts, and bailouts to any company that spends money directly in the electoral arena.”
But the Supreme Court could invalidate such an order, as well.
Nader and Weissman also recommend that shareholders pass resolutions requiring their corporations to receive majority permission before spending money on elections.
Ultimately, however, Nader and Weissman favor amending the Constitution. “In the absence of a future court overturning Citizens United,” they wrote in The Wall Street Journal on February 10, “the fundamental response should be a constitutional amendment. We must exclude all commercial corporations and other artificial commercial entities from participating in political activities. Such constitutional rights should be reserved for real people.”
On February 2, Representative Donna Edwards, Democrat of Maryland, became the first member of Congress to offer up a constitutional amendment aimed at Citizens United. She introduced the following: “The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.” It was co-sponsored by Representatives André Carson, John Conyers, Keith Ellison, Raúl Grijalva, Jesse Jackson Jr., Barbara Lee, Ed Markey, Jim McGovern, Eleanor Holmes Norton, Chellie Pingree, and Betty Sutton.
We need to “take matters into our own hands to enact a constitutional amendment that once and for all declares that we the people govern our elections and our campaigns, not we the corporations,” Edwards said, in a great video on the website freespeechforpeople.org. “Imagine a world where corporations could spend the never-ending source of their corporations’ treasuries on elections and campaigns and public policy. The people would completely lose our voice. . . . It would be gone.”
To illustrate Edwards’s point, Jamie Raskin, a Maryland state senator and a law professor at American University, provided the following example on that same video. “In 2008, the Fortune 100 corporations had $600 billion in profits,” Raskin said. “Now imagine that those top 100 companies decided to spend a modest 1 percent of their profits to intervene in our politics and to get their way. That would mean $6 billion, or double what the Obama campaign spent, the McCain campaign spent, and every candidate for House and Senate.”
On February 24, Senator Chris Dodd of Connecticut introduced his own constitutional amendment, which was co-sponsored by Senator Tom Udall of New Mexico. The amendment would “authorize Congress to regulate the raising and spending of money for federal political campaigns, including independent expenditures, and allow states to regulate such spending at their level,” according to a statement from Dodd’s office.
“Ultimately, we must cut through the underbrush and go directly to the heart of the problem,” said Dodd. “And that is why I am proposing this constitutional amendment: because constitutional questions need constitutional answers. I believe it is the best way to save our democratic system of government from the continued corrosion of special interest influence.”
Two progressive coalitions are pushing the effort to amend the Constitution. One is at freespeechforpeople.org. According to the website, “this is a campaign sponsored by Voter Action (voteraction.org), Public Citizen (citizen.org), the Center for Corporate Policy (corporatepolicy.org), and American Independent Business Alliance (amiba.net) to restore the First Amendment’s free speech guarantees for the people, and to preserve and promote democracy and self-government. We are joined by a growing wave of people around the country.”
The other is movetoamend.org. (Disclosure: I signed its petition.) It’s a little broader in scope than just overturning Citizens United. Here’s how it spells out its goals: “We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United, and move to amend our Constitution to:
“Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
“Guarantee the right to vote and to participate, and to have our votes and participation count.
“Protect local communities, their economies, and democracies against illegitimate ‘preemption’ actions by global, national, and state governments.”
Some of the prime movers behind it are the Liberty Tree Foundation, the Center for Media and Democracy, and the Independent Progressive Politics Network. And it is endorsed by the National Lawyers Guild, Progressive Democrats of America, Women’s International League for Peace and Freedom, and the Program on Corporations, Law, and Democracy.
There are two ways to amend the Constitution. One is to start with Congress, pass the amendment by a two-thirds margin in both houses, and then get three-quarters of the states to ratify it. The other way, which has almost never been used, is to get two-thirds of the states to call a constitutional convention, and then get three-quarters to ratify.
The Free Speech for People group favors the traditional way, while some in the Move to Amend coalition lean more toward a constitutional convention.
“I certainly think it would be more effective to build up from the states,” says Manski. “It may be that in the process of winning state legislatures over, we’ll change the political climate and Congress will respond by taking action. But I’m not going to rely on Congress. For myself, the safest route is to put all of our energy into the state initiatives and go the constitutional convention route.”
John Bonifaz, the legal director of Voter Action, believes it would be “dangerous to go down that road.” A constitutional convention, he fears, could be a disaster for minority rights. He believes that the right wing might successfully organize to pass an amendment declaring marriage as solely between a man and a woman or anointing English as the official language of the United States.
“What we’re about is reclaiming our democracy and advancing the franchise, not moving backwards,” he says.
The groups are getting along, fortunately, and working together. And they sense the urgency of the moment.
“The Supreme Court has had its say,” Raskin said. “Now it’s our turn. Now is the time for us to put in motion a great popular movement to defend democracy against the champions of corporate plutocracy.”
But no one has any illusions that it will be easy, as anyone who experienced the heartbreak of the Equal Rights Amendment can attest.
“It’s certainly an uphill fight,” says Weissman. The court’s decision “dealt a severe body blow to our democracy, and we’ll have to wait and see whether democracy can rise up or falls to the canvas.”
Senator Russ Feingold of Wisconsin calls the ruling “one of the most lawless in the history of the Supreme Court.” But ever idiosyncratic, Feingold opposes a constitutional amendment as a remedy. “I think that’s unwise, but I certainly understand the sentiment,” he told The Progressive. “The best thing to do is to get new justices, different justices, who will do the right thing.”
That may be a shortcut—and it may not.
“Based on the age of some of the justices in the majority, that’s suggesting we wait a very long time,” says Bonifaz, who has litigated the campaign finance issue at the Supreme Court. “And while a constitutional amendment can take a long time, there have been instances where it took only a few years.”
There’s one other drawback to hoping for a more enlightened composition of justices, because that leaves the question of corporate personhood up for grabs every time there is a new formation on the Supreme Court.
We need to slay the dragon of corporate personhood once and for all.
To do that, it seems to me, we’ll have to put our Susan B. Anthony hats on and get to work.
Matthew Rothschild is the editor of The Progressive magazine.