Features » February 22, 2012
United Citizens vs. Citizens United
Two years after the infamous ruling, support builds for a constitutional amendment.
The ramifications of the Citizens United decision are complex. Having the issue boiled down into a slogan may seem helpful, but it doesn't do so much to educate those who haven't already made up their minds.
Reader: I have a confession to make. I am not a lawyer. Nor am I a constitutional law scholar, a person who has studied in great detail the differences in disclosure requirements between nonprofits and for-profit corporations, or a person who reads articles with the word “finance” in the first paragraph. My chief interest with money lies in whether I have enough of it to survive. In this, I am not unlike many Americans, all of whom are affected by the 2010 Supreme Court decision, Citizens United v. FEC. All of us have good reason to be invested in the fight to overturn that decision and ensure that corporate money does not control our election system.
The Citizens United ruling is notorious. Its immediate effect was to nullify key portions of the bipartisan campaign reform law known as “McCain-Feingold,” which regulated spending by outside special interest groups trying to influence elections. The Court held that such spending by corporations – whether for-profit or nonprofit – constitutes political “speech” that cannot be restrained under the First Amendment. So, Congress cannot limit spending in elections, such as to support or denounce candidates, even though corporations cannot give money directly to a candidate. As for the long-term impact… well, that’s where we leave simplicity behind.
One example of popular resistance to the Citizens United ruling comes from Rep. Ted Deutch (D-Fla.) and Sen. Bernie Sanders (I-Vt.). They have proposed the same constitutional amendment in their respective houses – Deutch’s “Outlawing Corporate Cash Undermining the Public Interest in Our Elections and Democracy” amendment, introduced in November; and Sanders’ “Saving American Democracy” amendment, introduced in December – both of them brief, identical and deceptively simple.
Every word of these proposed amendments is important. The ramifications of the Citizens United decision are so complex that an average American voter can easily become lost trying to understand what’s at stake. Having the issue boiled down into a slogan may seem helpful, but it doesn’t do so much to educate those who haven’t already made up their minds. So, let’s start, as any good conversation should, with why those of us who are uninitiated should care.
You cannot give more than $2,500 directly to a political candidate. The corporation you work for cannot give any money directly. The reason is simple: When someone gives you money, you tend to avoid upsetting them. Politicians are implicitly discouraged from passing laws that negatively affect powerful donors, just like you are implicitly discouraged from yelling at your boss. If corporations can buy politicians, they will.
But Citizens United gave corporations the power to “speak” (spend money) on behalf of candidates or about “issues.” One ramification is that they can make what are known as “issue ads”: Without using the words “vote for,” “support,” “oppose” or “elect,” they can broadcast an ad telling you that the candidate they oppose is pure evil. Apparently the assumption of the five guys in the majority on the Court was that corporations would do this openly: Hallmark, for example, could air an ad telling you Barack Obama never sends cards on Secretary’s Day, because he is hateful. That would be shady. But not nearly so shady as what has happened.
What has happened is that candidates are nominally splitting up from their own advisors, so that those advisors can start political action committees – “Super PACs” – which can receive and spend unlimited amounts of money. Romney’s Super PAC, for example, is run by three former advisors of his 2008 campaign; Obama’s Super PAC is run by former aide Bill Burton. In other words, through surrogates, politicians have effectively found a way to receive and spend unlimited amounts of money. If corporations – or wealthy individuals, like casino magnate Sheldon Adelson, who’s given Newt Gingrich’s Super PAC $10 million, 4,000 times his $2,500 direct contribution limit – can buy politicians, they will.
To define a ‘person’
The Sanders-Deutch amendment has four points: First, that “the rights protected by the Constitution” are reserved for “natural persons,” and not “for-profit corporations.” Second, that private business entities are subject to government regulation. Third, that said entities shall be prohibited from making any contribution to any political campaign. And, fourth, that Congress and the states shall have the right “to regulate and set limits on all election contributions and expenditures,” and to authorize political committees to “publicly disclose the sources of those expenditures.”
These points are carefully chosen, but not universally embraced even among opponents of the Citizens United ruling. Stripping personhood specifically from “for-profit corporations” leaves nonprofits – for example, the right-wing 501(c)(4) nonprofit known as Citizens United, which helped start this mess – uncovered from the first clause of the amendment. Given that such organizations may participate in lobbying and political activity without having to disclose their donors and that they can effectively launder unlimited money in ways comparable to Super PACs, they can exercise tremendous influence without ever telling us who is pulling their strings.
But stripping nonprofits of constitutional rights could also render good organizations vulnerable. One thing a “Corporations Are Not People” placard doesn’t teach you is that the idea of corporations having First Amendment rights was instrumental in determining the right of the NAACP (a nonprofit corporation) to protect its membership lists and to bring lawsuits on behalf of racial integration. The decision in NAACP v. Button reads: “The activities of petitioner, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit. … Although petitioner is a corporation, it may assert its right and that of its members and lawyers to associate.” So that decision rested not just on whether members of NAACP had constitutional rights, but on whether the NAACP itself had them.
Making the distinction between nonprofits and for-profits serves one other crucial group, too: unions. The AFL-CIO actually filed a brief in the Citizens United v. FEC case, arguing for the Court to invalidate a ruling that upheld the constitutionality of restrictions on “electioneering communications” because it too runs ads in election seasons, despite significant differences between corporate treasuries and union funding. Which, as several left-wing columnists have pointed out, was a really smart decision – provided a union has as much money to spend on elections as Exxon. (It doesn’t. It didn’t. And never will.)
Therefore, the amendment would strip “speech” rights from Exxon and other mega-corporations, but not from unions or nonprofts. That different treatment would be consistent with other judicial decisions. However, leaving 501(c)(4) nonprofits uncovered means that corporations could still influence elections in a very real way through those groups. In a battle of the bank accounts between unions and for-profit corporations, a union win is distinctly unlikely.
The good news, advocates say, is that the rest of the amendment substantially closes this loophole by allowing Congress to regulate corporate expenditures and require full disclosure. The amendment may not use the precise language preferred by every opponent of Citizens United, but its approach is remarkably tough and comprehensive.
Then there’s the fact that it does not just strip for-profit corporations of First Amendment rights. It strips them of all constitutional protections accorded to “natural persons.” Given that businesses have long used the Constitution to shield themselves against regulation, this is unlikely to be an easy fight to win. Corporate personhood has been invoked to defend the right of 19th-century railroads not to pay corporation-specific taxes (the Fourteenth Amendment; equal protection under the law), the right of Nike to willingly lie about working conditions in its factories (the First Amendment; freedom of speech), and the right of the Riverdale Mills wire-mesh manufacturing company not to have EPA-collected water test results used against it in court (the Fourth Amendment; protection against unreasonable search and seizure).
Stripping all businesses of nifty get-out-of-consequences-free cards would rouse a tremendous amount of ire, backed by a tremendous amount of money. Granted, it would also give consumers and the state greater power to protect themselves against such corporate malfeasance. But then, that’s the point; for-profit corporations are not known to be cuddly, public-minded entities, especially not when it comes to the matter of being regulated or sued.
The rest of the amendment, on the other hand, focuses on rejecting the idea of expenditure as “speech,” by any person, corporation of any kind, or union, and placing campaign funding and expenditure under congressional and state regulation. Anyone not interested in personally buying a congressman could reasonably agree to this provision.
How to win?
The question of “how to win” is, again, deceptively simple. Obviously, one wins by getting 75 percent of state legislatures to ratify the amendment (within the next seven years), if an amendment were approved by two-thirds of Congress, or two-thirds of states demanded a constitutional convention. Also obvious: This is unlikely in the short term.
That said: Look at the title of Deutch’s proposal, which differs from the Sanders proposal only in its name: It translates into the very placard-friendly OCCUPIED Amendment. Reminding the 99% that the rich have more say than we do in determining the political agenda reliably, and increasingly, gets people’s attention.
There’s organized resistance to the Citizens United ruling; the constellation group United for the People lists 70 “supporting organizations” on its website. Not all of them agree on tactics, but they’re willing to do what it takes to overturn the ruling. Politicians who need those nonwealthy voters have good reason to pay attention.
“Dozens of members of Congress have stood in support of one of the array of new amendments to address spending in elections and help overturn Citizens United,” says Lisa Graves, of United for the People. “And, the Move to Amend coalition, working in concert with other groups, organized events in over 150 cities to protest the anniversary of the decision. Between the groups in the constellation and the other efforts in Congress, well over a million Americans have signed on to overturning the decision.”
It’s fair to say that this opposition is popular enough to command the Legislature’s attention. And attention is what we are getting: Although Sen. Sanders is far from the first congressman to stand up against Citizens United, he is one of the most delightfully fiery. Witness Sanders decrying the financial involvement of the Koch brothers in funding conservative campaign groups:
What do we think? Do we think that American democracy is about a couple of wealthy billionaires putting hundreds of millions of dollars into campaigns without disclosure? Is that really the democracy that Americans fought and died for in war after war? I think not.
His and Deutch’s amendment may not need to pass quickly – or at all, in its present incarnation – in order for those of us opposed to Citizens United to win. But “winning” may simply mean that the next time voters see an attack ad on TV, they might take a moment to wonder: “Who wrote that check?”
Sady Doyle is an In These Times contributor. She is the author of Trainwreck: The Women We Love to Hate, Mock, and Fear... and Why (Melville House, 2016) and was the founder of the blog Tiger Beatdown. You can follow her on Twitter at @sadydoyle, or e-mail her at sady