citizens united one year later by paul schlieben

8/7/2019 Citizens United One Year Later by Paul Schlieben

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CITIZENS UNITED v FEC: One Year Later

Paul Schlieben - 1 - synaptia.blogspot.com

t was one year ago this January that the

Supreme Court decided the case known as

Citizens United v FEC. By now, most

Americans have forgotten about what I believe

to be one of the worst Supreme Court decisions

sinceDred Scott(the name commonly given to

the 1857 decision affirming the Fugitive Slave

Recover Act),Plessey v Ferguson (the 1896

Separate but Equal decision) and, least we

forget, the 2000Bush v. Gore decision. Only

time will tell whether this characterization is

justified. Some feel that it will not make any

difference its no big deal but this may be only because corporations so dominate public

discourse and government policy already that this decision is just a continuation down the

slippery slope of corporate dominance of government affairs. Theres only one more step to the

bottom; direct corporation contributions to campaigns.

At the heart of the Courts (5-4) decision extending First Amendment rights to corporations is

the belief that our legislators and leaders are somehow immune from corruption. Im relieved to

discover that the Courts majority finds quid pro quo corruption in other words, verifiable,

out-and-out bribery objectionable. However, apparently, everything else is just an exercise of

free speechthe free, uninhibited flow of ideas. Donations to campaigns (wink, wink) that

result in favorable treatment later on, is access, not corruption. A junket to attend, say, a

pharmaceutical sponsored event at Hilton Head, dine with corporate leaders, and play lots of golf

is OK. If this looks and smells like corruption, well, thats just a misperception the public will

have to get over. After all, free speech is absoluteNO exceptions. (More about that later.)

Stanley Fish, law professor and New York Times columnist provides an excellent analysis of the

conflicting views of the majority and minority Court. Fish points out that the word that best

describes the majority view is chill, as in, any restriction of corporate speech has a chilling

effect. The word that best describes the concerns of the minority is corrupt, reflecting a belief

that corporate speech and money have a corrupting effect. Therein lies the irreconcilable divide

I


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of the First Amendment absolutists, on the one hand, and consequentialists on the other.1 I

recommend reading Professor Fishs article and many of the almost six hundred online

comments logged in response to it. [Note that you can select the Highlights tab or sort them

by clicking the Readers recommendations tab to read a sampling of comments.] Many are

extraordinarily insightful.

As for the Supreme Court decision itself, the most persuasive argument comes not from the

majority opinion, but from the minority opinion written by Associate Justice John Paul Stevens.

This ninety-page dissent is both clear and persuasive reasoning, and brilliant writing. When I

read it, the first question I asked myself is, why did he put so much effort into this? After all,

the vote has been taken; it was 5 to 4. Hes arguing for the minority. At eighty-nine and ready

to retire, it seemed a Herculean effort. Ive come up with three possible explanations: he thought

his dissent itself might persuade one of those who had voted with the majority to change sides

(unlikely, since the only likely swing vote, Justice Kennedy, wrote for the majority); that this

was his last decision and he wanted it to be memorable (it is); and/or, he felt that he was laying

the groundwork for a reversal, at some future date. His dissent provides all the fuel a future

Court would need to override this decision; one that disregards over one hundred years of

precedent.2

While I dont intend to address each of the Courts arguments (Justice Stevens does that best,)heres a summary of the most important points.

y The assault on common sense and the Constitution: Corporations are not people. (Forthe benefit of strict Constitutional constructionists, the word corporation does not

appear even once in the Constitution or its Amendments. Do a word search. Go ahead.)

y The money equals speech argument. Again, most Americans find this an assault oncommon sense and fairness. The ability of one class of people to so dominate the

bandwidth as to drown out all other voices suppresses rather than advances free speech.

1 See Stanley Fish Citizens United v FEC article2 This decision including J.P. Stevens dissent can be read by going to this webpage -- Supreme Court 2009-10Decisions and downloading the .pdf of the Citizens United vs. Federal Election Commn decision (number 19 inthe list).


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Reasonable limits on campaign contributions should be retained to ensure all voices are

heard.

y Erosion of prohibitions on corporate influence. This is just the latest in a series ofdecisions expanding corporate political rights.

y The myopia of the court as evidenced by the majority statements on corruption. Whatplanet are they from? Or, what boardroom.

y The Well, newspapers are corporations arent they? argument. Yes, but as a class, theyare granted an explicit protection in the first amendment. They are the essential fourth

branch of government.

y The Free speech is absolute and should be unrestrained argument. No one issuggesting individuals be muzzled that includes corporate leaders; they should just do it

on their own dime.

y The Court blithely ignored the international makeup and allegiance of corporate officers.y The Court ignored precedents and case law. The text of the decision and the dissent are

the best place for this level of analysis. Im not a lawyer, but a few landmarks are worth

noting (below).

y Chief Justice John Roberts made numerous statements regarding stare decisis (theimportance of precedents in law) during his confirmation hearings. I wont go into this

aspect of the case other than to note here that during the Roberts hearings, he

emphasized this belief to stare decisis many, many times.

y The Court ignored the inevitable consequences of 1) its decision and 2) the effects of theexpansion of corporate influence. In doing so, it also ignored clear evidence that

Congress unearthed during many long hours of hearingsevidence that informed the

legislation it passed.

y Will restricting the speech of Exxon-Mobil, Coke or GE have a chilling effect on thefree exchange of ideas?

y Remedies: Just for fun, what would a Constitutional Amendment look like?


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I wont be addressing all of these here, but I have included this list as food for thought. Lets just

examine a few of them.

The Supposed Incorruptibility of Congress

As I mentioned at the outset, at its heart, stripped of all other pretense, the majority decision rests

on these two highly questionable assertions: 1) this Court now concludes that independent

expenditures, including those made by corporations, do not give rise to corruption or the

appearance of corruption. That speakers may have influence overor access to elected officials

does not mean that those officials are corrupt. And the appearance of influence or access will not

cause the electorate to lose faith in this democracy. and, 2) The hallmark of corruption is the

financial quid pro quo: dollars for political favors. (italics are mine.)

The first dont worry, be happy statement flies in the face of centuries of evidence to the

contrary. Take the clause That speakers may have influence over What is corruption if not

inappropriate influence over a government official? I agree, access does not mean that

corruption is afoot. But, financial contributions certainly raise the appearance of corruption.

One must ask, why would corporations donate funds if not to influence or corrupt?

Did the Court hold hearings before reaching these conclusions? Is the Courts assertion that

expenditures do not give rise to corruption based on evidence or academic research? Did it

base it on any evidence? Is it based on historical precedent? No and No it is simply based on

five Justices opinion. Maybe they conducted a private poll of legislators: Have you ever been

swayed by corporate contributions, or the threat of a corporation withholding a contribution?

No sir. Certainly not! At the least, you would think that the Court could site studies or

evidence to support their opinion but nothing. Have the justices not noticed whats been going

on in Washington? Have they never heard of K Street?

Faced with criticism of this decision, Clarence Thomas responded that the NY Times and

Washington Post are corporations. Assuming that this was a serious response, what does that

mean? That the decision was a swipe at these two papers? Certainly this statement reflects the

antagonism some members of the Court feel towards the two publications, but it flies in the face

of the Constitution and the First Amendment, which extends freedom of speech to the Press, not


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to Exxon-Mobil, Walmart, GE or Wendys. (The decision to allow GE or Disney or whoever to

buy media organizations is worth revisiting.)

The notion that limiting the speech of corporations somehow limits the free flow of information

is absurd no one is limiting the speech of the individuals who make up corporations. Within

the constraints of the law, they are free to speak.

So. One has to ask, from what oxygen-deprived bubble did these five Supreme Court Justices

emerge? We can read about the pernicious effects of corruption and the appearance of

corruption practically every day3. Are they so ill informed? Maybe they should spend more

time reading the Times or the Post.

3 One brief example: Ten years ago, private for-profit colleges were minor players. Today, organizations like the University of Phoenix (ownedby the Apollo Group) and the Kaplan College Company (owned by the Washington Post Company) garner 91.5% of the sixty-five billion dollars

($65 Billion) of all moneys allocated by the Federal Government to higher education. These companies prey on the least qualified applicants andreturning vets. They use deceptive practices to recruit and retain students. How did this come about? One of those organizations (and not the onlyone), Kaplan Colleges, has increased their political donations and lobbying dramatically over the same period. Coincidence? An oversight? This

is just one not-so-small example of how corporate special interests dominate the legislative process and profit from it. Their foot is firmly in thedoor; dont expect them to go away. This is just one example of hundreds of similarly well-financed industries writing the rules in their favor.[To read a series of articles on For-profit Colleges, click hereNY Times For-profits College articles] Quid pro quo corruption? You decide. As

we witness the debate to bring our National budget in balance, this is something to keep in mind.

New Yorker Jan 31, 2011


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The Courts Assault in Common Sense and the Constitution

The majority of Americans4 find the notions that corporations are people and that money

equals free speech offensive. As corporations gain a stranglehold on the popular culture and

government policy through advertising, PACs and their lobbyists, common sense suggests

something is seriously amiss. The courts decision seems to fly in the face of the widely held

perception that corporate influence needs to be restrained, not expanded. As Justice Stevens says

in his final paragraph, While American democracy is imperfect, few outside the majority of

this Court wouldhave thought its flaws includeda dearth of corporate money in politics.

Occasionally, a decision or action violates a universal and deeply held sense of right and wrong.

This decision appears to have crossed that line. Polls indicate that 80% of the population thinks

this decision was wronga majority of Republicans, Democrats and Independents. While I tend

to believe common sense is just another ay of saying lowest common denominated, in the case

of Citizens United, it is backed up by lots of supporting not-so-common evidence.

First, as I noted earlier, the word corporation does not appear anywhere in the Constitution or

its Amendments. Not once. Second, corporations are defined by state statutes and operate under

the laws of the various states in which they are registered. They are legal persons, not natural

persons. (More about that distinction later.) Third, the Federal role regulating corporations is

derived almost exclusively from the Commerce Clause of the Constitution (Article I, Section

8). Since most corporations operate across national and/or state boundaries, most are subject to

federal laws and regulations.

While a very few corporations existed in the late 18th

Century, corporations grew rapidly in the

mid-19th century, spurred on by the Civil War and Reconstruction. Naturally, laws governing

their influence lagged behind and corruption became commonplace. For decades, Robber

Barons called the shots. Corporations bought and sold legislators. Since legislators werebeholden to people like JP Morgan, Jay Gould, John D. Rockefeller, Cornelius Vanderbilt, to

name a few, they were reluctant to pass any laws that would upset these oligarchs. Sound

familiar? It took Teddy Roosevelts stubborn, aggressive leadership and the trust-busting

legislation he championed to curtail their influence and establish a modicum of control.

4 See Article on ABC News/Washington Post polling


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Corporations are established by law to fulfill some commercial purpose. The law allows people

to join together under a legal framework that subjects the corporation to legal requirements and

holds the corporation itself accountable and liable, while shielding the corporate officers from

personal liability, except, in rare instances, for gross, personal misconduct.5 Unlike people,

corporations are immortal; they can exist in perpetuity.

Over time, the corporate governance model was extended to labor unions, non-profit

organizations such as charities, and to special interest groups organized to promote a political

point of view. While a case can be made for protecting the speech rights of some of these

groups, especially those established for a political purpose, in my view, there is room for treating

them as separate classes and legislating rules to govern each. (Nonsensically, some are required

to disclose their sources of financing while others are not.)

For more than one hundred years, the courts seem to have agreed there should be limits. The

first crack in the dam appeared in the 1976 decision Buckley vs. Valeo. While it allowed limits

on political contributions to stand, for the first time, the Court removed limits on expenditures,

allowing an individual candidate to spend as much of his or her own money as he or she wanted6.

Another case that same year was Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc. This decision extended First Amendment protection to commercial

speech. Other decisions that expanded corporate influence followed. (Again, I refer you toJustice Stevens dissent for a thorough legal analysis.)

Since the word Corporation does not appear in the Constitution, you would think that the

Congress would then have the power to define rules concerning corporations, as McCain-

Feingold gingerly attempts to do. An activist judge might think otherwise.

Unrestrained Speech

5 The most oft-sited phrase with respect to the relationship of individual officers to their corporation is corporate officers should not pierce thecorporate veil. For example, if the corporation purchased a car that was then used by a corporate officers spouse for personal transportation,

that would be a violation. While it is obvious that this rule is routinely ignored, especially at large corporations, it is a standard that most of uswould recognize as ethically and legally sound and one that a court would enforce, if challenged to do so.6 While not debated here, I have seen the effects of a financial imbalance during a gubernatorial race here in New Hampshire. One candidate,

Craig Benson (R), spent twelve million dollars or so of his own money. His opponent, Mark Fernald (D) spent less than ten percent of that. Notonly did this result in a one-sided media blitz in Bensons favor, but the media, itself the recipient of all this campaign cash, went easy on Benson,lobbing softball questions his way, while sending the hard questions Fernalds way, or ignoring him completely. When theres a resource

imbalance, media complicity is a hidden hazard. They are the silent opponents to campaign finance reform.


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The absolutist interpretation of the Constitution and Bill of Rights subscribes to the notion that

there should be no constraints on speech; to do so would have a chilling effect. Here are some

exceptions few would find objectionable:

y Yelling Fire in a crowded theatrey Divulging troop positions to the enemyy Outlawing briberyy Criminalizing the solicitation for sexy Conspiracy, such as planning a bank heisty Communications with terrorist organizationsy Prohibitions against obscenity, child pornographyy Laws against slandery Privacy protectionsy Copyright and patent lawy Ordinances against Noisey Non-profit 501(c)3 organizations are prohibited from participating in political activities.y Im sure Ive missed a few more.

Oh, Yes. Dont even think of joking about having a bomb in your briefcase at the airport.

The fact is the Court has recognized many restraints on speech and most of us accept these as

being in the public interest. There is no such thing as absolute free speech. That the Court failed

to recognize that unrestrained corporate speech is equally pernicious and deserving of restraint is

where, in my opinion, justice has come off the rails. When it comes to a closer examination of

free speech, the founders punted, and, tragically, the team that picked up the ball ran the wrong

way.

Certainly, laws that limit speech need to be debated and viewed with suspicion. But, the

unrestrained speech of entities created by the states solely for commercial purposes has no place

in our polity, whereas individuals who make up corporations have every right to speak and do so

freely. Viewed from that vantage point, one has to wonder if this is even a legitimate First

Amendment issue.

International Nature of Corporations Ignored by the Court

The largest and most powerful corporations are multinational. For example, GE, one of the

largest, derives sixty percent of its revenue from overseas. There is no prohibition in the current

law, or mention in the Courts decision, against non-citizens owning or controlling an American


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corporation. No government entity is charged with determining the nationality of a

corporation. Its not possible. Many corporations have interests that do not align with our

national interests; witness the outsourcing of manufacturing jobs or their pursuit of markets in

China. Multinational or not, a corporations goal is maximize profits, period. Granting

corporations the ability to sway elections or influence the electorate on critical national issues

extends their political influence beyond what is reasonable. Yet, except for Samuel Alitos

mouthing of Thats Not True at the 2010 State of the Union address, the Court does not

address this concern or suggest a remedy that would limit the influence of foreign-owned or

controlled corporations. If you are a free speech absolutist, your response might be, So what?

We dont care from where the free flow of ideas emanates an idea is an idea, right? Chill-out!

Stanley Fishs consequentialist might disagree, especially in light of the Courts prevailing

view that money is speech. Corporate money tilts the playing field; it buys elections.

I also find this troubling: If the logic of the court prevails that a corporation is a person then

this decision grants the corporation andthe people running it each the right to speak, magnifying

the voices of its officers who, incidentally, presume to speak for its stockholders. Does one

man, one vote extend to one man, one voice? Does a corporation officer now have one voice

or two?

A final thought on corporations. If I own stock in corporations (as I do through mutual funds,) Iown part of that corporation. When it expresses an opinion in the political arena, does it speak

for me? What gives the board or CEO of a company that right? No one asked me. As for the

notion, as some have suggested, that I can always sell my shares (have you ever waded through a

mutual fund report?) that reflects the never-never land in a galaxy far-far away from which this

decision came.

Does Muzzling Corporations Muzzle People?

No. There are no constraints on people who run corporations. I just dont want to give them

unlimited license to influence the outcome of elections or dominate public discourse to the extent

that they do. The individual members of corporations enjoy unrestrained free speech. One

respondent to Stanley Fishs NY Times article said it best: referring to corporations, to imply

that this necessary and useful entitys role can and should be extended to the political realm is


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both ridiculous and injurious. Shareholders who wish to take political stands on issues can and

should be able to donate their own money to politicians and political causes. Suggesting that

removing the corporate vehicle from the equation somehow infringes on their rights verges on

the ludicrous. (Comment from Zorro in Riverside, CA.)

So, to those who would argue that freedom of speech is absolute, I would argue that denying a

corporations rights does nothing to infringe on freedom of speech, since any individual can

exercise his or her free speech rights at any time.

The Court

The Supreme Courts role is to say what the law is, not to make laws. In the absence of

Constitutional language governing corporate speech, laws passed by the Congress should prevail.

Otherwise, its the Court making policy, not the U.S. Congress. The law in question in this case

was the McCain-Feingold Campaign Finance Reform Act7. This is the law that should have

governed this decision. The irony is that, were it not for the composition of the present Court,

dominated as it is by lawyers more sympathetic to corporate interests than to the publics, the

prohibitions in the law against corporate meddling in political speech would have been even

stronger.

What Can Be Done?

Other than initiation impeachment proceedings or waiting for the composition of the Court to

change and rearguing the case, there are few realistic remedies available. But two possibilities

admittedly remote are 1) an act of judicial nullification8 by the Congress and the President, or

2) a Constitutional Amendment. Good luck. There are dozens of Constitutional Amendments

submitted every year that never see the light of day, including at least one on this subject

submitted by former Representative Paul Hodes (D-NH). Nevertheless, its fun to contemplate

what one might look like; so here goes:

7 The role of the Court is also to decide cases and controversies brought before it. In this case, the Supreme Court went way beyond thecontroversy that was at issue. A reasonable person might question if that overreaching itself is Constitutional .8 While Im sure this idea is controversial in the extreme a snowballs chance in hell might not Congress, relying on its powers as defined in

Article III, Section 2 paragraph 2 of the Constitution, declare campaign finance or corporate governance out of judicial bounds? with suchExceptions, and under such Regulations as the Congress shall make. Hasnt Congress done something like this in declaring certain terroristdecisions by the Executive out of bounds? I suppose someone with a contempt for the rule of law, like Dick Cheney, would have no trouble

arguing this point, but would the Court then be able to declare the nullification itself unconstitutional?


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Resolved by the Senate and House of Representatives of the United Sates of America in Congress assembled (two-

thirds of each House concurring therein), that the following article, which may be cited as the Governance of

Corporate Speech Amendment is proposed as an amendment to the Constitution of the United States, which shall be

valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the

several States within seven years after the date of its submission for ratification:

Article

Section 1. a) Corporations in any form or variant are legal persons, not natural persons [Corporations are not people]

and; b) The Free Speech clause of the First Amendment applies exclusively to natural persons.

Section 2. The U.S. Congress is hereby empowered to regulate the activities of legal persons, including proscribing

and regulating their financial activities and their political and commercial speech.

Section 3. a) The rights of groups of natural persons forming a corporation for the sole purpose of disseminating

political opinion or endorsements shall not be abridged, in so far as b) its membership consists exclusively of natural

persons; c) its members approve pronouncements by majority vote and d) a individual member be permitted to

withhold his or her financial support freely, without prejudice, and; e) its source of funding be published at intervals to

be established by Congress.

citizens united one year later by paul schlieben

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