‘On This Day’ 2010: US Supreme Court Rules Corporations are People; Money is Speech
A year ago today, the justices of the United States Supreme Court voted to allow unlimited corporate and special interest spending on “electioneering communications.” The 5-4 ruling in Citizens United v. Federal Election Commission was by far the most important Supreme Court decision in decades. It dealt a disastrous blow to American democracy, which was already besieged by the insidious influence of monied special interests.
Citizens United freed corporations, unions and other monied interests from longstanding restraints on political donations by allowing them to spend unlimited amounts of money to influence the outcome of American elections. The decision overruled two significant precedents, Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003), an affirmation of the important McCain-Feingold campaign reform law. Citizens United eviscerated more than a century of restrictions on corporate influence on our nation’s electoral process, effectively turning back the clock to the era of 19th century robber barons and wild capitalism.
The Supreme Court’s perversely twisted logic boiled down to this: under the First Amendment, corporations are people and money is constitutionally protected free speech. Any attempt to limit corporate spending was, therefore, a violation of corporations’ free speech rights. In writing the majority opinion, Justice Anthony Kennedy called existing campaign finance laws a form of censorship that have a “substantial, nationwide chilling effect” on political speech.
What Justice Kennedy was obviously overlooking is the fact that the real chilling effect occurs when deep-pocketed corporations force their will upon the citizenry simply by virtue of their newly-endowed unlimited spending powers. Because individual citizens obviously do not have the financial resources that big business does, Citizens United effectively gives corporations rights that ordinary citizens do not enjoy. This odious ruling is anathema to true democracy. In his stirring 90-page dissenting opinion, Justice John Paul Stevens wrote that “the Court’s ruling threatens to undermine the integrity of elected institutions across the nation. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process.”
President Barack Obama called the decision “a green light to a new stampede of special interest money in our politics… a major victory for Big Oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
If corporations are indeed people and money, as free speech, is their voice, this begs the question of equality: if a corporation or special interest group has more money than an individual, will not the more monied voices be heard much more often and much louder than those who lack limitless finances?
Just as important as the money spent by special interests is the money not spent: imagine the chilling effect if some corporation either openly or implicitly told a Congressional candidate “look, we’ve got a million bucks to spend on your particular race. We can either spend it for you or against you.” Do you think that candidate won’t bend over backwards to make sure they don’t run afoul of that company?
The impact of Citizens United was almost immediate. The ruling perfectly coincided with the beginning of campaigning for the 2010 mid-term elections. With the 100 largest corporations having combined assets of more than $13 trillion, it was open season on influence buying. Ordinary Americans didn’t stand a chance. A report by Bill de Blasio, the public advocate for the city of New York, found that Citizens United “led to a significant uptick in spending on elections,” “significantly increased anonymous spending” and “created a more negative electoral environment.” Particularly troubling are the $130 million in anonymous donations by unknown groups.
Much of this massive funding came from the US Chamber of Commerce, which vowed to spend $75 million to defeat Democratic candidates in the 2010 mid-terms. The Chamber aired over 8,000 ads supporting Republican Senate candidates alone. Much of this unprecedented political spending spree is funded by foreign corporations and interests. The Chamber actively solicits foreign firms for donations which it then spends on influencing the outcome of American elections.
The Chamber masquerades as a body that is, as its website declares, “fighting for your business.” That’s true, especially if your business is Big Business. Fully 40 percent of the Chamber’s 2008 funding came from just 26 mega-corporations, including some of the most irresponsible, destructive companies on the planet.
“When BP was publicly promising to do everything in its power to fix the massive oil disaster it created in the Gulf of Mexico, it was also funneling money to the US Chamber of Commerce,” noted Zach Carter, a fellow at Campaign for America’s Future, a progressive advocacy group. “And what was the Chamber up to? It was lobbying furiously to protect BP from new rules that would force the company to pay for oil disaster clean-up. The Wall Street banks did the same thing as financial reform legislation moved through Congress, and companies never have to disclose these expenditures to the public.”
Carter points out that the Chamber responded to the Citizens United ruling by immediately boosting political spending by 40 percent, and then by 50 percent again, with 93 percent of campaign ads funded by the Chamber favoring Republican candidates.
It should come as no surprise, then, that the five Supreme Court justices who voted on the side of the corporations in Citizens United were the five most conservative members of the Court. But what will come as a surprise is that there is a potential conflict of interest between two of the justices, Clarence Thomas and Antonin Scalia, that could disqualify them from the Citizens United case. Common Cause, a nonprofit, nonpartisan citizen’s lobbying organization promoting open, honest and accountable government, claims that Justices Thomas and Scalia were paid guests at a Palm Springs retreat hosted by the billionaire Koch brothers, leading financiers of conservative Congressional campaigns.
It wouldn’t be the first time that these Supreme Court justices were embroiled in a conflict of interest scandal that ought to have disqualified them from a landmark case– Thomas and Scalia voted in favor of George W. Bush in 2000’s Bush v. Gore, in which the Court ruled 5-4 to stop valid votes from being properly counted and thus ensuring Bush’s election. Thomas’ wife worked reviewing resumes for potential Bush appointees. Two of Scalia’s sons worked for a law firm that represented Bush in the recount. The justices ought to have recused themselves from this case, as they should have in Citizens United, but they didn’t. Instead they made a mockery of the Supreme Court and their purported aversion to overreaching judicial activism.
Historians may very well look back at Citizens United as one of the final nails in the coffin of American democracy and one of the pivotal events in the emergence of what can only be described as the coming corporatocracy— a moment when “We the People” metastasized into “We the Corporations,” when “of the People, by the People, for the People” got twisted into “of the Corporations, by the Corporations, for the Corporations.”
Only time will tell. There have been efforts to mitigate the harm done by the ruling. So far, these have been woefully unsuccessful. Sen. Bernie Sanders (I-VT), a self-described socialist who has made campaign finance reform a cornerstone of his congressional career, has introduced a constitutional amendment banning corporate personhood. Rep. Christopher Van Hollen (D-MD) and Senator Russ Feingold (D-WI) sponsored the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, which would have required corporations to disclose all political contributions and forced front groups to reveal the identities and contribution amounts of all donors. DISCLOSE was, as you might expect, killed by Republican filibuster in the Senate.
The battle continues. Grassroots organizations like FreeSpeechForPeople.org, MoveToAmend.org and FixCongressFirst.org are leading the way. But they can’t hold a candle to the enormous and growing clout of the corporations. Only a radical rethink of the very nature of American corporatism and its relationship with the electoral process can curb the out-of-control influence of this supremely destructive force.
It doesn’t look like it’s going to happen anytime soon.
Tagged 2010 midterm elections, Antonin Scalia, Austin v Michigan Chamber of Commerce, Bush v Gore, campaign finance laws, campaign finance reform, Citizens United, Citizens United v. Federal Election Commission, Clarence Thomas, corporations are people, corporatism, corporatocracy, Democrats, DISCLOSE Act, Justice Anthony Kennedy, Justice John Paul Stevens, Koch brothers, McCain Feingold, McConnell v Federal Election Commission, of the corporations by the corporations for the corporations, President Barack Obama, Republicans, Russ Feingold, special interests, US Chamber of Commerce, US Supreme Court