Jan. 21, 2010
Shed a Tear for Democracy: Supreme Court’s Citizens United Will Unleash Flood of Corporate Money in Elections; Public Citizen Calls for Constitutional Amendment to Reverse Decision
Statement of Robert Weissman, President, Public Citizen
Note: Public Citizen played a key role in the Citizens United case; Public Citizen attorney Scott Nelson was a member of the legal team that represented the key congressional sponsors of the McCain-Feingold law.
Shed a tear for our democracy.
Today, in the case Citizens United v. FEC, the U.S. Supreme Court has ruled that corporations have a First Amendment right to spend unlimited amounts of money to influence election outcomes.
Money from Exxon, Goldman Sachs, Pfizer and the rest of the Fortune 500 is already corroding the policy making process in Washington, state capitals and city halls. Today, the Supreme Court tells these corporate giants that they have a constitutional right to trample our democracy.
In eviscerating longstanding rules prohibiting corporations from using their own monies to influence elections, the court invites giant corporations to open up their treasuries to buy election outcomes. Corporations are sure to accept the invitation.
The predictable result will be corporate money flooding the election process; huge targeted campaigns by corporations and their front groups attacking principled candidates who challenge parochial corporate interests; and a chilling effect on candidates and election officials, who will be deterred from advocating and implementing policies that advance the public interest but injure deep-pocket corporations.
Because today’s decision is made on First Amendment constitutional grounds, the impact will be felt not only at the federal level, but in the states and localities, including in state judicial elections.
In one sense, today’s decision was a long time in coming. Over the past 30 years, the Supreme Court has created and steadily expanded the First Amendment protections that it has afforded for-profit corporations.
But in another sense, the decision is a startling break from Supreme Court tradition. Even as it has mistakenly equated money with speech in the political context, the court has long upheld regulations on corporate spending in the electoral context. The Citizens United decision is also an astonishing overreach by the court. No one thought the issue of corporations’ purported right to spend money to influence election outcomes was at stake in this case until the Supreme Court so decreed. The case had been argued in lower courts, and was originally argued before the Supreme Court, on narrow grounds related to application of the McCain-Feingold campaign finance law.
The court has invented the idea that corporations have First Amendment rights to influence election outcomes out of whole cloth. There is surely no originalist interpretation to support this outcome, since the court created the rights only in recent decades. Nor can the outcome be justified in light of the underlying purpose and spirit of the First Amendment. Corporations are state-created entities, not real people. They do not have expressive interests like humans; and, unlike humans, they are uniquely motivated by a singular focus on their economic bottom line. Corporate spending on elections defeats rather than advances the democratic thrust of the First Amendment.
We, the People cannot allow this decision to go unchallenged. We, the People cannot allow corporations to take control of our democracy.
Public Citizen is going to do everything we can to mitigate the damage from today’s decision, and to overturn this misguided ruling.
First, we must have public financing of elections. Public financing will give independent candidates a base from which they may be able to compete against candidates benefiting from corporate expenditures. We will intensify our efforts to win rapid passage of the Fair Elections Now Act, which would provide congressional candidates with an alternative to corporate-funded campaigns before fundraising for the 2010 election is in full swing. Sponsored by Sen. Richard Durbin (D.-Ill.) and Rep. John Larson (D.-Conn.), the bill would encourage unlimited small-dollar donations from individuals and provide candidates with public funding in exchange for refusing corporate contributions or private contributions in amounts of more than $100. The proposal has broad support, including more than 110 co-sponsors in the House.
In the wake of the court’s decision, it is also essential that the presidential public financing system be made viable again. Cities and states will also need to enact public financing of elections.
Second, we will urge Congress to ensure that corporate CEOs do not use corporate funds for political purposes, against the wishes of shareholders. We will support legislation requiring an absolute majority of shares to be voted in favor, before any corporate political expenditure is permitted.
These mitigating measures will not be enough to offset today’s decision, however. The decision itself must be overturned.
Public Citizen will aggressively work in support of a constitutional amendment specifying that for-profit corporations are not entitled to First Amendment protections, except for freedom of the press. We do not lightly call for a constitutional amendment. But today’s decision so imperils our democratic well-being, and so severely distorts the rightful purpose of the First Amendment, that a constitutional corrective is demanded.
We are formulating language for possible amendments, asking members of the public to sign a petition to affirm their support for the idea of constitutional change, and planning to convene leading thinkers in the areas of constitutional law and corporate accountability to begin a series of in-depth conversations about winning a constitutional amendment.
The Supreme Court has lost its way today. Democracy is rule of the people – real, live humans, not artificial entity corporations. Now it’s time for the people to reassert their rights.
Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.