A recent Supreme Court decision may mark a turning point for our democracy.
The decision on Citizens United vs. Federal Elections Commission could have been relatively limited. When it first arrived at the Supreme Court, it only required the Court to decide whether feature-length films on Pay-Per-View were subject to the provisions of campaign finance regulations.
But the Court, over the course of many months, expanded the scope of the case to radically transform not just politics, but the democratic system itself.
Instead of ruling on the limited question that the case actually raised, the Court, led by relatively new Chief Justice John Roberts, demolished a premise that is more than a century old: that Congress has the lawful authority to restrict corporate spending in elections. In a 5-4 decision, the Court ruled that corporations have the same free-speech rights as human beings, and that it’s unconstitutional for Congress to regulate their independent expenditures in elections. Put in plain English, that means enormous corporations can pour unlimited amounts of money into supporting—or defeating—particular candidates.
And the amount of money that could be unleashed is mind-boggling. Exxon Mobil earned $45.2 billion in profits in 2008. Just 2 percent of that would be more than the combined costs of the McCain and Obama presidential campaigns. If Exxon Mobil decided to spend just that small sliver of its profits on behalf of one candidate, it could upend the election to select the leader of the free world.
Of course, Exxon Mobil doesn’t need to spend that much money to have an impact on our country. The ability to spend it is enough.
Imagine that our senators faced a decision on whether or not to sponsor climate change legislation in the next few months. The legislation might be good for their constituents, but bad for Big Oil. If they fail to sponsor it, they’ll get some angry phone calls from constituents who care about the environment. But if they do sponsor it, they could easily face tens of millions of dollars' worth of attack ads. Which do we think they’ll choose? The legislation will go unsponsored and Exxon Mobil won’t have to spend a dime.
The results will be disastrous. Elected officials will swiftly become answerable to giant corporations instead of to ordinary voters. The point isn’t that it will hurt progressives or conservatives. Regardless of whether or not you approve of the decisions your elected officials make, those decisions won’t be made to please you—they’ll be made to further corporate interests.
Already various legislative solutions have been proposed, and they should be considered seriously. But there are only two ways to completely fix the damage done by this decision: change the Supreme Court or change the Constitution.
We need to do both.
In the coming years, justices will leave the Court and presidents will nominate replacements. It’s absolutely crucial that, whoever the president, Americans demand he or she nominate justices who put the rights of individual Americans above the rights of corporations.
And because of the potentially cataclysmic impact of the decision, we need to move forward with a constitutional amendment restoring Congress’s ability to limit corporate influence on elections.
As the leader of an organization dedicated to defending the Constitution and, especially, the First Amendment, I don’t think this is a solution that we should embrace lightly. But the Supreme Court’s disastrous decision requires an appropriate response.
The Court’s ruling isn’t a vindication of the First Amendment, it’s a perversion. The Court has established a situation in which the free speech rights of individual Americans are rendered meaningless by the speech of corporations—even thought corporations are not people and are only constructed for economic purposes.
In Citizens United, the Court did great harm to our Constitution. And it will take a bold effort to undo that. But together, it’s a challenge we can undoubtedly overcome.