Citizens United v. FEC

Citizens of Boulder, Colorado voted last night to pass a ballot measure calling for a constitutional amendment stating that corporations are not people and do not have the same rights as people to influence elections. The campaign was a grassroots effort organized by Move to Amend, a national coalition dedicated to abolishing corporate personhood and reversing the Supreme Court’s deeply flawed decision in Citizens United v. FEC.

“From Occupy Wall Street to Boulder, Colorado and every town in between, Americans are fed up with corporate dominance of our political system,” said Kaitlin Sopoci-Belknap, a national spokesperson for Move to Amend. “Local resolution campaigns are an opportunity for citizens to speak up and let it be known that we won’t accept the corporate takeover of our government lying down. We urge communities across the country to join the Move to Amend campaign and raise your voices.”

The national movement supporting a constitutional amendment is picking up steam. Yesterday, Senators Tom Udall and Michael Bennet (with additional cosponsors) introduced an amendment that would reverse the effects of the Citizens United decision, a move which according to PFAW’s Marge Baker, will will help ensure that “the American people – not deep pocketed corporations – [will] be the loudest voice when we choose our leaders.”

Voters in Madison and Dane Counties, Wisconsin approved a similar measure earlier this year, and voters in Missoula, Montana will have a chance to do so next week.

The ballot measures may be scattered across the country, but the message is clear: corporations are not people, and the flood of special-interest money that has hijacked our democracy needs to be stopped.

A complete list of all resolutions passed so far is available here.

Last year, the Supreme Court ruled that corporations have a First Amendment right to spend as much as they want to influence elections. Yesterday, the Court ruled that wealthy candidates and campaign donors have the First Amendment right not to have their spending matched by their opponents.

Welcome to the new logic of free speech in elections.

In a 5-4 decision today, the Supreme Court ruled that a crucial provision of Arizona’s landmark clean elections law, which provides matching funds to publicly financed candidates who are up against particularly well-financed opponents, to be unconstitutional. Why? Because the provision to put publicly financed candidates on even footing with their privately financed opponents “chills” the speech of wealthy individuals and groups who want to pour money into elections.

Yes, if you’re a wealthy person or interest group looking to buy an impact in an election, you might be put off by knowing that, because of matching funds, you would never be able to overwhelm a publicly funded opponent into comparative silence. But, looking at it from the other side, if you’re a candidate who wants to spend your campaign talking to voters rather than donors, you might hesitate to take public financing if you knew you would never be able to even come close the funds of your opponent – without matching funds, the public financing system is all but useless. By taking away the mechanism by which a greater number of candidates can make their voices heard, the Court has stifled speech, rather than protected it.

Justice Elena Kagan, in a zinger-laden dissent, took on the majority’s “more speech is less speech” argument:

The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."

People For’s Marge Baker had this to say:

The Roberts Court has once again twisted the Constitution to benefit the wealthy and powerful while leaving ordinary Americans with a diminished voice. Like in Citizens United v. FEC, which prohibited legislatures from limiting corporate spending to influence elections, the Court’s majority has strayed from the text and history of the Constitution in order to prevent citizens from maintaining control over our democracy. The Roberts Court would do well to remember that the Constitution was written to protect democracy for all people, not just the rich and powerful. Today it has ruled not only that the wealthy have a right to spend more but that they have a right that everyone else spend less.

While the Supreme Court’s decision in Citizens United overturned decades of precedent by granting corporations the right to spend money from their corporate treasuries to help elect or defeat candidates, many pro-corporate activists believe that the ruling didn’t go far enough and seek to eviscerate even more restrictions on corporate money in elections. Opponents of campaign finance reform are spearheading efforts to allow corporations to contribute directly to candidates for office, permit political groups to keep the identity of their donors a secret, and loosen restrictions on foreigners contributing to candidates. The Supreme Court is also set to consider a major case on the constitutionality of Arizona’s clean elections laws that provide public financing for qualifying candidates. Politico reports on the Right’s “sustained assault” on campaign laws:

Not satisfied by the 2010 Supreme Court ruling that opened the floodgates to corporate-sponsored election ads, conservative opponents of campaign finance regulations have opened up a series of new legal fronts in their effort to eliminate the remaining laws restricting the flow of money into politics.

They have taken to Congress, state legislatures and the lower courts to target almost every type of regulation on the books: disclosure requirements, bans on foreign and corporate contributions and – in a pair of cases the Supreme Court will consider this month – party spending limits and public financing of campaigns.

The sustained assault, combined with the Supreme Court’s rightward tilt on the issue, has some advocates for reducing the role of money in politics fretting about the possibility of an irreversible shift in the way campaigns are regulated and funded that would favor Republicans and corporate interests in the 2012 presidential race and beyond.

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“Depending on its scope, an adverse ruling from the high court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections,” warns a memo by Gerry Hebert and Tara Malloy, lawyers at the pro-regulation Campaign Legal Center, which filed a brief defending the Arizona law.

“Just a year after the controversial decision in Citizens United v. FEC, the Court is once again poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy,” their memo predicted.

Opponents of campaign rules argue that removing restrictions allows more voices to compete in the political marketplace. And they have a slew of other suits pending that could dramatically alter the political money landscape, including one challenging a rule that limited how much the Republican National Committee could spend supporting the unsuccessful 2010 reelection campaign of former Rep. Joseph Cao (R-La.).

The Supreme Court is set to decide on Friday whether to hear the case which is being handled by Jim Bopp, a Republican lawyer and leading opponent of campaign restrictions. The impact of the Cao case “could be real big,” if the court overturns the so-called coordination limits at issue, predicted Bopp, who has dozens of cases pending in courts around the country.

One seeks to advance the Citizens United ruling by challenging an Iowa law banning direct corporate contributions to state candidates, while a pair of others dispute whether non-profit groups called the Committee for Truth in Politics and The Real Truth About Obama that aired ads critical of then-candidate Barack Obama had to disclose their donors or activity.

The Story of Stuff Project has made a new video telling the story of Citizens United v. FEC. Take a look:

For more information on the influence that corporate spending had in the 2010 elections, read PFAW's report, Citizens Blindsided.

In the year since the Supreme Court’s decision in Citizens United v. FEC, there has been new scrutiny on the increasingly cozy relationship between corporate funders of elections and national policy makers. Exemplifying that relationship have been the Koch brothers, billionaires whose dollars have helped to fund right-wing organizations and campaigns for years, and who were behind one of the most powerful outside groups in the 2010 elections, Americans For Prosperity. The brothers also hold twice-yearly meetings of influential donors, pundits, and politicians—past guests have included Glenn Beck, Sens. Jim Demint and Tom Coburn, and even Supreme Court Justices Antonin Scalia and Clarence Thomas (both of whom were in the Citizens United majority).

The Kochs held their most recent strategy meeting at a spa in Palm Springs this weekend. Attending the secretive event was House Republican Leader Eric Cantor, among other undisclosed guests. Outside were 800-1,000 protestors, 25 of whom were arrested for trespassing. The LA Times reports:

Protest organizers said they hoped to raise awareness about the Koch brothers and what activists portray as their shadowy attempts to weaken environmental protection laws and undercut campaign contribution limits.

The brothers control Koch Industries, the nation's second-largest privately held company. They have funded groups pushing a limited-government, libertarian agenda, helped organize "tea party" groups and contributed $1 million to a failed ballot initiative to suspend California's law to curb greenhouse gases.

"We cannot have democracy unless everyone has a voice," said Cathy Riddle, a Temecula website developer who held a sign reading "Corporations are not people." Donors like the Koch brothers are "drowning us out," she said. "Their voices are louder."

The protest, organized by Common Cause, included some members of People For the American Way. It came one week after activists, in events around the country, marked the first anniversary of Citizens United and called for a constitutional amendment to reverse it. Watch PFAW’s video explaining the decision and its impact:
 

Friday is the first anniversary of the Supreme Court’s 5-4 ruling in Citizens United v. FEC, which helped unleash massive corporate spending in the 2010 elections, and more voices have emerged to denounce the Court’s wrongheaded and extreme ruling. The decision’s impact on public policy debates became more apparent today as the House of Representatives prepares to vote to repeal the health care reform law after pro-corporate groups spent handsomely to discredit the law with bogus charges and attack Congressmen which supported reform.

Ben Cohen and Jerry Greenfield of Ben & Jerry’s ice cream, along with companies like Patagonia, Stonyfield Farms and Honest Tea, have launched Business for Democracy, “a coalition of like-minded businesses to protest a Supreme Court ruling that struck down limits on corporate campaign spending in candidate elections.” The Wall Street Journal reports that “members of ‘Business for Democracy’ believe ‘the decision is inconsistent with the basic ideal of ‘government of the people, by the people, for the people,’" and support a constitutional amendment to reverse the decision.

In today’s Washington Post, Katrina vanden Heuvel discussed how the vast corporate spending to influence the midterm elections was “just an experiment” compared to how corporations plan to sway the 2012 election. But despite the push by pro-corporate groups to keep spending by businesses in elections unchecked, the efforts for legislative remedies and the push for a constitutional amendment to overturn Citizens United persevere:

According to Bill de Blasio, New York City's public advocate, Citizens United spending - that is, spending that was only made possible by the court's ruling - accounted for 15 percent of the roughly $4 billion spent on the 2010 midterm elections. Eighty-five million dollars of Citizens United money was spent on U.S. Senate races alone. Worse, 30 percent of all spending by outside groups was funded by anonymous donations, an illegal action prior to the ruling. Forty million of the dollars spent on Senate races came from sources that might never be revealed.

But as striking as these consequences might be, the 2010 election was just an experiment, the first opportunity to test the new law. In future elections, corporations and shadowy organizations will have a clearer understanding of the boundaries they are operating within, a reality that is sure to translate into more undisclosed cash. And the savvier corporate players know that the mere threat of a corporate onslaught of funding for or against a candidate is enough to win legislative favor, in effect blunting prospects for sound regulation, consumer protection and fair tax policies. As former senator Russ Feingold (D-Wis.), himself a victim of Citizens United spending, said, "It is going to be worse in 2012 unless we do something - much worse."

Yet even as we lament this decision, we should recognize the opportunity it presents. Justice Roberts and his allies overreached so brazenly that they have created an opening for genuine reform.

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The clearest and boldest counter to the court's ruling would be a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. Rep. Donna Edwards (D-Md.) introduced such an amendment to counter Citizens United during the last session of Congress and views it as the only sure way to beat back the court. "Justice Brandeis got it right," she noted last February. " 'We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both.' "

Campaigns for constitutional amendments demand a great deal of patience and tenacity. But as Jamie Raskin, a Democratic Maryland state senator and professor of constitutional law at American University, notes, "American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy's enemies." Not only is a push for an amendment a worthy act, it also provides a unique opportunity to educate the broader public, raise the profile of this important issue and force elected officials to go on record as to where they stand. The campaign could create enormous pressure on state legislatures and Congress, prompting changes to campaign finance even before an amendment is ratified.

Success will require a coalition that transcends party. In this case, there is promising news. An August 2010 Survey USA poll found that 77 percent of all voters - including 70 percent of Republicans and 73 percent of independents - view corporate spending in elections as akin to bribery. Broad majorities favor limiting corporate control over our political lives. A coordinated effort, executed right, could unite progressives, good-government reformers and conservative libertarians in a fight to restore democracy.

In a wide-ranging interview with NPR’s Nina Totenberg this week, former Justice John Paul Stevens touched on his strong opposition to the Supreme Court’s decision in Citizens United v. FEC, to which he wrote an adamant dissenting opinion.

As for the court's recent ruling allowing corporations and unions to spend unlimited amounts on candidate elections, Stevens thinks it was dead wrong — and, indeed, still doesn't think that money is the same thing as speech. "Can you hear it talk? Can you read it? [Money is] simply not speech," he says. "And I have to confess that my own views are that there is an interest in trying to have any debate conducted according to fair rules that treat both sides with an adequate opportunity to express their view. We certainly wouldn't, in our arguments in this court, give one side a little more time because they could pay higher fees to hire their lawyers, or something like that."

Stevens is hardly alone among legal luminaries in thinking that the decision in Citizens United was flat-out wrong. On Monday, People For and the fair elections group Free Speech For People sent a letter signed by over 50 prominent lawyers and law professors urging Congress to consider amending the Constitution to undo Citizens United.

Corporate political expenditure regulations do not infringe any speech rights of the American people whatsoever. Rather, such regulations reflect the power of the American people to regulate corporations and the rules that govern such entities as the people and our representatives see fit. Justice John Paul Stevens’ dissent rightly calls the majority opinion a “radical departure from what has been settled First Amendment law.”

You can read the full letter here.
 

Since the Supreme Court’s decision in Citizens United v. FEC, state-level laws regulating corporate election spending have been crumbling. Today, yet another bit the dust:

An agreement between Ohio elections officials and an anti-abortion group voids a state ban that kept businesses and unions from funding pre-election broadcast ads in support of specific candidates.

The Wednesday agreement in U.S. District Court in Columbus settles part of a 2008 lawsuit brought by Ohio Right to Life Society Inc. against the Ohio Elections Commission and Secretary of State Jennifer Brunner. It follows a January U.S. Supreme Court decision that strikes down a similar federal ban.
 

When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.

Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.

The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”

Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.

Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”

In Congress, Rep. Alan Grayson added, a corporate lobbyist “can walk into your and office, say ‘I have $5 million, and I can spend it for you or against you.’…this really is a threat to our democracy.”

All of the panelists, including Public Citizen’s Robert Weissman, Lisa Graves of the Center for Media and Democracy, and People For’s Marge Baker, agreed that passing a Constitutional Amendment wouldn’t be easy, but is necessary.

Baker called the Citizens United decision “radical, dangerous, and pernicious,” and emphasized the opportunity it creates for progressives to reclaim the debate over the courts as we work to reverse it.

“Citizens United is one of the all time worst Supreme Court decisions in the history of the United States,” Weissman said, “It’s certain that it’s going to be overturned. The question is, are we going to overturn it in the next 4-5 years, or wait 50 years.”

Graves added that Americans have managed to amend the Constitution throughout our history. “They did it with the Pony Express,” she said, “and we have Web 2.0”

Grayson and Edwards have both agreed to sign the Pledge to Protect America’s Democracy, a pro-amendment effort organized by People For and Public Citizen. Urge your candidates and elected officials to do the same, at www.pledgefordemocracy.org.

UPDATE: Netroots Nation has posted a video of the discussion: