Nel's New Day

January 6, 2012

Elected Officials Fight Citizens United

In the 21st century everything gets named “super” from Coca-Cola to politics. Super-PACs are a fine example of the bloating that results from “super” things. Unleashed in early 2010 by the U.S. Supreme Court ruling of Citizens United v. Federal Election Commission, these monsters can raise and spend unlimited funding for candidates. Donors aren’t disclosed until after the presidential primaries or caucuses in early states.

Republican candidates may have approved of these in the beginning, but now some of them are beginning to whine about others’ advantages. Newt Gingrich, targeted by almost one-third of the over $14 million super-PAC advertising before the Iowa caucus, called on Mitt Romney to pull these ads in Iowa; Romney responded, correctly, that he cannot have anything to do with these super-PACs. (According to the ruling, a candidate can have no involvement in this advertising.) Then Gingrich, the man who wanted no negative campaigning on the Republican side, called Romney “a liar” on CBS’s Early Show.

People across the country are getting riled with the ruling. Montana, a state that may have anticipated the problems a century ago, passed a law in 1912 to fight Gilded Age corporate control over its government. The Montana Supreme Court has upheld this law that states, “[A] corporation may not make … an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party.” States rights will come into play here because Citizens United overturned a similar federal statute when a majority of justices claimed that independent electoral spending by corporations “do not give rise to corruption or the appearance of corruption” that such laws were enacted to combat.

By a 5-2 vote, the Montana Supreme Court refused the ruling that Citizens United barring all laws limiting independent electoral spending. Chief Justice Mike McGrath cited the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption. Over 100 years ago, the ruling in Western Tradition Partnership v. Attorney General came during a time when Montana’s robber barons, the “Copper Kings,” so effectively politically and economically dominated the state that it lost its authority. According to Mark Twain, one Copper King “bought legislatures and judges as other men buy food and raiment.”

To reverse the Montana Supreme Court, the U.S. Supreme Court would, according to  Professor Rick Hasen of the University of California-Irvine Law School, have to have said something like, “We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.” They didn’t, however, so the Justices will have to explain how the Montana Supreme Court was wrong to consider the factual record in justifying corporate spending limits in campaign finance laws.

The 2nd U.S. Circuit Court of Appeals took a similar stand when, in late December, it upheld a 2006 New York City law that, among other things, bans lobbyists from giving gifts to City officials and requires them to disclose all fundraising and consulting activities. Judge Guido Calabresi agrees that corporate expenditures need to be contained: “If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue.”

Calabresi added that the desire for a functioning democracy “is, I believe, something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine, I do not know. But it will happen.” Calabresi justified his ruling by saying, “Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption.”

A number of cities across the United States from New York to Los Angeles are requesting that Congress pass a constitutional amendment to overturn Citizens United. The New York City Council suggests that the amendment state  “that corporations are not entitled to the entirety of protections or ‘rights’ of natural persons, specifically so that the expenditure of corporate money to influence the electoral process is no longer a form of constitutionally protected speech.”

California lawmakers have introduced a resolution calling for Congress to “propose and send to the states for ratification a constitutional amendment to overturn Citizens United.” All this is following the large number of small towns that began to protest Citizens United months ago and the Occupy Movement protesters against this ruling.

At this time, the Supreme Court’s ruling that money is constitutionally protected free speech and corporations are legal persons entitled to these protections, will probably overturn Montana’s Supreme Court. That’s the reason that other political entities are taking a different approach.

According to the Constitution, 34 state legislatures can call for a constitutional convention which could create an amendment banning corporate funding from elections. A year ago this didn’t look possible because Republicans seemed to be the only ones benefiting from the misguided Citizens United ruling: now Republicans are hurting too.

Even beyond the very peculiar “free speech, personhood” piece of the ruling is the difference in rules for corporations and unions. According to Citizens United, both corporations and unions are allowed to spend freely on campaigns, but corporations are permitted to stockpile funds whereas unions are refused this provision for corporations. In addition, employees may opt out of funding union political activities, but shareholders are forced to participate in corporate political spending. The difference in treatment of the two groups is very likely unconstitutional, but the judicial branch determines constitutionality. So much for following the Founding Fathers’ wishes!

The advertising industry predicts as much as $4 billion in spending across all the campaigns, including those for president, Senate, House and governorships. Much of this will come from corporations.

In Citizens United, Justice John Paul Stevens wrote a 90-page dissenting opinion, arguing that “[t]he conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” Stevens added, “[a]lthough they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office.”

According to Stevens, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

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