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.
Shady PACs
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.
The below is about an
amendment that won’t pass
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?”
ABOUT THIS AUTHOR
Sady Doyle is an In These Times Staff Writer. She's also an
award-winning social media activist and the founder of the anti-sexist blog Tiger Beatdown
(tigerbeatdown.com).
