Court "Conservatives" Suggest Readiness to Overturn 100 year-old Democratic Principles: Justice Sotomayor Suggests More Conservative Approach

Today's argument in Citizens United v. FEC suggests that the Roberts
Court is poised to sweep aside century-old restraints on corporate
domination of the political marketplace--unless the wisdom of the
Court's newest member proves persuasive when the decision is ultimately
written.

As Justice Sotomayor listened to some of her colleagues encourage
Ted Olson's argument for overruling key Supreme Court precedents
preventing the use of corporate general treasury funds in elections,
she intervened to ask a pointed question of Olson: "Are you giving up
on your earlier arguments that there are narrower, nonconstitutional
grounds for deciding your case"? And Mr. Olson had to say "no." This
question by the newest Justice was a pointed reminder that if
overruling key precedents is a form of judicial activism, doing so when
there clearly are more narrow, statutory grounds for deciding the case
is a truly extreme example of judicial activism.

As explained in a blog post
by Demos' Democracy Program Director Brenda Wright, the two key
precedents the Court appears intent on overturning--Austin v. Michigan
Chamber of Commerce and McConnell v. FEC--affirmed that Congress and
the states may require corporate political speech to be funded by
donations from persons who agree with the corporation's message rather
than by corporate general treasury funds that were not accumulated for
political purposes. A majority of the current Court, however, appears
ready to hold that corporations must enjoy an unfettered right to
dominate electoral politics by using their huge corporate general
treasury funds in electoral campaigns--regardless of the political
views of shareholders.

"The general treasury funds of large for-profit corporations
entirely dwarf the resources available for political expenditures from
individual citizens, and thus will provide a virtually irresistible
target for political actors clawing for advantage in federal elections
if Austin and McConnell are overruled," said Wright. "Democracy should
not be a wholly owned corporate subsidiary, but today's argument
suggests that is where the Roberts Court may be headed."

Jeff Milchen, the co-founder of the American Independent Business
Alliance, reacted to Justice Scalia's repeated questions about
protecting the rights of small businesses: "For ten years, I've spoken
with dozens of business owners every week and often discuss their
concerns with government policy. Not once has an owner raised concern
about restrictions on their ability to make political contributions.
For Justice Scalia to invoke concern for small business owners to
advance his agenda of expanding the power of giant corporations simply
is laughable."

Demos joined with the American Independent Business Alliance, a
non-profit organization helping communities design and implement
programs to support independent locally-owned businesses, to file a
friend-of-the-court brief arguing that elevating corporations to the
status of citizens has no constitutional basis and would harm not only
citizens, but America's small businesses.

The amicus brief on behalf of American Independent Business Alliance
was prepared by attorneys with Demos, a national, non-partisan
organization that works to ensure broad political participation and a
vibrant democracy; and by Daniel Greenwood, a professor at Hofstra
University School of Law who has written extensively about the
intersection of corporate law and democracy.

For more information, visit www.demos.org or www.amiba.net.