The Excesses of the Monied Interests: What Can We Do After Citizens United?

The Supreme Court decision on Citizens United
Thursday -- which greatly expanded the ability of corporations to
spend money to influence elections -- sent a collective gasp across the
public interest community.

If the last year has shown how easily vested interests can already shape -- some would say sabotage -- policy like health reform
and consumer protection, Citizens United has created a new political
environment even more vulnerable to what Thomas Jefferson called "the
excesses of the monied interests."*

After Citizens United, what weapons are left in the public's arsenal to protect against corruption and the undue influence of the wealthy?

First, a quick recap: In 2008, a conservative group named Citizens United
made a documentary attacking Hillary Clinton. The Federal Election
Commission said it couldn't be aired on cable because it violated a ban
on corporations spending money for "express advocacy" for or against a
candidate.

Citizens United appealed, saying the ad represented "free speech." Law professor Rick Hasen argues that the Supremes could have narrowly ruled on the statute involved,
but instead reached further to overturn previous decisions that had
placed limits on corporate spending to influence elections. [Follow the
case here.]

So
what next? In the wake of the decision, advocates are regrouping and
looking at new avenues to battle the growing influence of money in
politics:

* NEW LIFE FOR "VOTER-OWNED" ELECTIONS? Trying
to restrict campaign spending was often like pressing on a balloon --
push down in one place, and special interest money found a way to pop
up somewhere else. Some advocates are saying it's time for a new
paradigm: Leveling the playing field through publicly-financed
elections.

As Bob Hall of Democracy North Carolina says that such efforts for such "voter-owned" elections are critical now, post-Citizens:

Regulation of private money in politics has gotten much
more difficult. The decision ... points to the importance of creating
an alternative stream of clean money through a public financing option
for candidates who abide by a set of public-trust standards. Public
financing gives candidates the ability to compete and encourages them
to be accountable to voters, not wealthy narrow interests. As the
regulation of large wealthy interests becomes more impossible, it
becomes more necessary to boost the power of small donors and voters
through voluntary Voter-Owned Election programs.

Democracy NC was instrumental in passing such a program in North Carolina for judicial races -- which 78% of candidates used in the 2004 and 2008 races -- and piloted programs for other state and local offices.

* RESPECT THE LAW: One
of the most dangerous prospects now is the influence wealthy interests
will have to influence judicial elections and "buy" judges in their
favor. In 39 states at least some judges are elected, and special interests spent over $200 million between 1999 and 2008 to influence those contests (double what was spent in the previous decade).

In fact, the Supreme Court recently heard a case just about this issue: Massey v. Caperton, a case involving the CEO of Massey Energy spending $3 million to elect a judge
to West Virginia's Supreme Court of Appeals; the judge went on to
overturn a verdict against the coal conglomerate. The Supreme Court ruled against Massey in June, saying that judges had to recuse themselves when there's direct conflicts of interest.

Burt Brandenburg of Justice at Stake says the Supreme Court's latest decision will multiply the ability of wealthy interests to distort justice:

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United
could spawn. Remarkably, the money spent in the West Virginia election
all came out of the executive's private finances. Now it's likely that
he and other CEOs, as well as union chiefs, will ultimately turn
business treasuries into personal election-campaign piggy banks.

Brandenburg urges public interest groups to push for judicial campaigns to at least be excluded from Citizens United and a "special protective shield around elections involving the courts."

* LET THE SUN SHINE IN:
One thing the court did affirm in the decision was the need for full
and prompt disclosure of the special interests influencing elections.
In the majority opinion, Justice Kennedy argued:

With the advent of the Internet, prompt disclosure of expenditures can
provide shareholders and citizens with the information needed to hold
corporations and elected officials accountable for their positions and
supporters.

Ellen Miller of the Sunlight Foundation says the decision is a clarion call for government to step-up rules and systems for disclosure of campaign financing:

Today's decision underscores the necessity of creating comprehensive
real-time disclosure for all election spending - across the board --
from when and how often candidates, individuals and PACs report their
contributions and expenditures to those involved in independent
expenditures, issue ads or direct election advocacy.

But Miller also says that the "rapid and informative" disclosure system Kennedy calls for "doesn't exist yet."

She also acknowledges that disclosure alone won't do any good if journalists, advocates and elected officials don't act on the information:

While
we are supportive of Justice Kennedy's call for greater transparency,
we still believe and take issue with his belief that modern technology
and the ability to quickly release campaign finance data alone will
solve the problem. It is utopian to believe that making it easier to
track corporate electoral activity
even comes close to solving the problem of money in politics.

* ARE CORPORATIONS REALLY PEOPLE? For those who know about it, it's an infamous moment: In 1886, in the otherwise obscure case of Santa Clara County v. Southern Pacific Railroad Company, Supreme Court Justice Morrison Remick Waite made the following passing remark, without any supporting argument:

The
court does not wish to hear argument on the question whether the
provision in the Fourteenth Amendment to the Constitution, which
forbids a State to deny to any person within its jurisdiction the equal
protection of the laws, applies to these corporations. We are all of
opinion that it does.

The astonishing statement was duly recorded by the court
reporter (who likely misunderstood the scope of the justice's
comments), and the rest is history: From that moment on, U.S. law has
awarded the corporation, a legal fiction, the status of a living and
breathing "person," including First Amendment free speech rights.

There are numerous problems with the idea that corporations are people. For example, as David Korten has pointed out,
it creates an interesting legal contradiction: If a corporation is
legally owned by its shareholders, and therefore considered their
property, wouldn't that make corporations slaves, something prohibited
by the Thirteenth Amendment?

A campaign to change U.S. law and
stop regarding corporations as people has lived on the fringes of
political life for a while, but Citizens United -- one of the boldest decisions yet based on corporate personhood -- may revive interest in the idea.

A network of people and groups called Move to Amend
is spearheading just such an effort now, their first demand being that
Congress move to amend the constitution to "Firmly establish that money
is not speech, and that human beings, not corporations, are persons
entitled to constitutional rights."

Clearly, public interest
advocates see no simple road to reasserting the power of everyday
people versus those with more economic clout.

And now that Citizens United has opened the floodgates of corporate
influence in politics, the ability to elect leaders and pass
legislation that could reign in the "excesses of the monied interests"
has likely become even more difficult.

* UPDATE: Not many have mentioned it, but in the Citizens United decision [PDF],
the Supreme Court justices included a little back-and-forth on what the
founding fathers thought about corporations and their influence in the
political process.

For example, Justice Stevens noted in his
dissent (p. 123) that "Thomas Jefferson famously fretted that
corporations would subvert the republic," with a reference to this
footnote:

See Letter from Thomas Jefferson to Tom Logan (Nov. 12, 1816), in 12
The Works of Thomas Jefferson 42, 44 (P. Ford ed. 1905) ("I hope
we shall . . . crush in [its] birth the aristocracy of our monied
corporations which dare already to challenge our government to a trial
of strength and bid defiance to the laws of our country").

Justice Scalia, on the other hand, downplays these sentiments -- even dismissing Thomas Jefferson's comments thusly (pp. 81-82):

Even if we thought it proper to apply the dissent's approach of
excluding from First Amendment coverage what the Founders disliked, and
even if we agreed that the Founders disliked founding-era corporations;
modern corporations might not qualify for exclusion. Most of the
Founders' resentment towards corporations was directed at the
state-granted monopoly privileges that individually chartered
corporations enjoyed. Modern corporations do not have such privileges,
and would probably have been favored by most of our enterprising
Founders-- excluding, perhaps, Thomas Jefferson and others favoring
perpetuation of an agrarian society.

Did Scalia just call Jefferson a backwards hick?