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.
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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?