Campaign Financing after Citizens United v. Federal Elections Commission

Community Forum, First Unitarian Church of Cleveland, Shaker Heights, Ohio
January 23, 2011

Citizens United vs Federal Elections Commission is one of the worst decisions ever rendered by the US Supreme Court – right up there with upholding that slaves are property in Dred Scott (1857), asserting African Americans could be treated as separate but equal in Plessey vs Furguson (1896) and declaring money is speech in Buckley vs Valeo (1976).

It was a political decision trumped up as law rendered by five activist appointed-for-life justices based on a fraudulent, baseless, and bizarre notion that corporations are people possessing inalienable First Amendment Bill of Rights protections that were intended by this nation’s founders only for human beings – natural persons, real people.

The controversial decision permits corporate treasury funds to be spent for or against specific political candidates. Four times more money was spent in the 2010 midterm elections from outside groups than in the 2006 midterm elections ($296 million to $68 million – according to the Center for Responsive Politics). Much of this can be attributed to the decision.

I don’t particularly feel we had four times more democracy as a result. What we had instead were the election of more corporate friendly candidates who support the Republican Pledge to America and other corporate friendly rules, laws, budget giveaways and tax breaks.

Many claim the decision didn’t change very much. I actually tend to agree.

Corporations have been dominating our political system prior to Citizens United. The political speech of corporate PACs and lobbyists has drowned out the voices of people without money for decades.

Prior to Citizens United, did We the People control our elections? Our health care? Energy policies? Trade policies? Environmental policies? Our money and banking system? Were communities able to keep big box chain stores, cell phone towers or gas drillers out of our communities? Or toxic trash from being imported into our communities?

President Obama’s 2008 campaign raised $745 million under the old campaign finance rules. Among his largest contributors (or investors – depending on your perspective) was the FIRE (Finance, Insurance and Real Estate) industry. Wall Street gave $14.9 million to Obama’s election campaign, the most for any campaign in history, with Goldman Sachs alone chipping in $1 million. Nineteen of 22 members of the Senate Banking Committee of both major political parties received donations/investments from Wall Street in 2009. Each of those up for reelection in 2010 received large political investments.

In just the past two years, corporate cash accounted for watering down consumer and environmental protections and diluting health-care and financial reform. Remember Sen. Dick Durbin’s comment about the power of the big banks in the financial reform debate last year? “They frankly own the place,” he asserted. Though troubling, it was refreshingly honest.

Corporations have been largely running the place economically and politically for more than a century prior to Citizens United.

This is not to diminish the impact of the decision. Citizens United has reduced what was already more or less our democratic theme park – with many of the trappings of a real democracy but just not much substance.

Citizens United was not the first time corporations achieved the ridiculous distinction of having inherent constitutional rights – on par with human beings.

The Revolutionary War was in no small part a reaction against the Crown’s chartered corporations. The most (in)famous incident was the dumping of goods, including tea, in the colonies by the British East India Company.

Thomas Jefferson thought ill of corporations: “I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”

Corporations were intended by the nation’s founders to be an artificial creature of the law, with no additional powers than what its charter granted.

US Supreme Court Chief Justice John Marshall wrote in an 1819 case, "A corporation is an artificial being, invisible, intangible…It possesses only those properties which the charter of its creation confers upon it."

Nowhere in the constitution are corporations mentioned. Nowhere. We the People were sovereign. Corporations were created to be subordinate to humans. The nation’s founders feared corporations gaining too much power. That’s why they placed the defining powers to control them at the state level.

Charters were democratic instruments, issued by state legislatures one at a time. They rigidly established what corporations could and could not do. It was focused on business, period. Political or inalienable rights weren’t granted. Those were reserved solely for people.

Corporations couldn’t claim as they do now both constitutional rights of human beings as well as the special corporate privileges unavailable to human beings – such as limited liability.

The notion that corporations are people is a radical concept concocted by the Supreme Court based on a fraud.

The 1886 Santa Clara vs Southern Pacific Supreme Court decision is often attributed as the foundation, the pillar that all subsequent corporate rights case are built upon. Yet the court in its ruling never actually concluding that corporations were people. Chief Justice Morrison Waite (from Ohio) said at the time that the case had settled no constitutional issues. Nevertheless, that conclusion was placed by the Court Reporter in the headnotes, or brief summary, at the very beginning of the case. Many members of the court at the time agreed with the sentiment that corporations were persons but the text itself did not actually address corporate personhood. The case only dealt with the issue of taxes on railroad fences.

The fraudulent Santa Clara decision was consecrated in 1889 when the court cited the case as a precedent for corporate personhood in Minneapolis & St. Louis Railway Company v. Beckwith.

All subsequent corporate personhood cases are built on Santa Clara.

However in 1906 the court ruled in United States v. Detroit Timber and Lumber Co. that headnotes did not carry any legal weight.

This makes Santa Clara, the rock solid pillar of corporate constitutional rights, nothing more than a fraud and illegitimate -- a legal house of cards build on a pile of sand. By extension, Citizens United is a fraud and illegitimate.

Justice John Paul Stevens, dissenting in Citizens United, said, “… corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings…But they are not themselves members of “We the People” by whom and for whom our Constitution was established.”

Retired Supreme Court Justice Sandra Day O’Connor stated, “Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”

What sounds more reasonable? The above opinions of Stevens and O’Connor or these, the majority views from the Roberts court: "The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt," and the “appearance of influence will not undermine public faith in (American) democracy."

“Only if we pretend that corporations are ‘persons’ under the Constitution, is limiting corporate ‘speech’ a constitutional infringement,” says corporate anthropologist Jane Anne Morris

Only if we pretend that corporations are persons under the constitution are we faced with the dilemma that many of us many feel, as Morris explains: “Must we limit speech in order to have free and fair elections? Or, must we accept corporation-dominated political debate in order to preserve free speech? This false dilemma disappears if we reject corporate personhood.”

Slavery is the legal fiction that people are property. Corporate personhood is the legal fiction that property are people. The first was abolished. The second one needs to be.

Free speech is for people. Not corporations. Period.

Abolishing corporate political speech is essential. Overturning Citizens United…and in fact, all so-called inherent corporate constitutional rights, the goal of the Move to Amend campaign, is also essential to protect what little is left of our democratic republic.

While this decision was a democratic disaster, its blatant overreach presents a unique opportunity to seek profound change.

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 can unite progressives, good-government reformers and conservative libertarians in a fight to restore democracy.

But it’s not enough. Even without corporate constitutional rights, campaign financing would be skewed. We can’t have a political democracy is a nation that defines money as speech. Defining money as speech means those with the most money have the most speech. Elections have become sales. That’s not a prescription for democracy but of a plutocracy.

According to sociologist William Domhoff, as of 2007, 1% of people in this country possess 43% of its financial wealth, the next 4% - 29%, the next 5% - 11%, the next 10%, 10%. That leaves the bottom 80% owning a mere 7% of the wealth in this country.

Ours is much closer to a plutocracy than democracy. The only way out is to break the link between economic and political inequality is to abolish the doctrine that money is speech. Without it, campaigns like voluntary systems of public financing or limiting the size of individual contributions, while helpful, are mere examples of triage. They keep what’s left of our democracy barely alive but little more.

Is all this radical? Is democracy radical? People in this nation fought a revolution for real self-governance. People of color and women organized social movements to drive themselves into the constitution to be recognized as persons. All this now is fundamentally at risk is in a political system were money is speech, elections are for sale, and corporations are people.

It’s time once more to become part of a social movement for real self-governance. What’s left of our democracy is at stake.