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As The Anti-Citizens United Movement Grows, The Plutocrats Will Surely Attack

Democracy reformers can surmount the coming corporatist attacks.

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But it left a large gap—because a candidate could not bribe herself, limits on what a millionaire candidate could spend on her own campaign were rejected.  That kind of spending was seen as permissible free speech. And just because one candidate spent more than another didn’t mean she was bribed, so limits on candidate spending were rejected.  In further cases, the courts extended this logic to ballot measure campaigns, throwing out limits on contributions or spending because there was no candidate to be corrupted.  The final straw came in Citizens United (and the follow-up federal court ruling in Speech v. FEC) where five justices convinced themselves (but few others) that spending done on a candidate’s behalf but “independently” of their campaign could not possibly be corrupting.

An additional and better justification for limits on political campaign spending and contributions would be political equality.  Voters can make better decisions if we hear somewhat equally from different points of view, rather than hearing from one side nine times more frequently than another.  And yet this rationale was explicitly rejected by the Buckley court, which said “it is wholly foreign to the First Amendment” to restrict the speech of some elements of our society in order to enhance the relative voice of others.  This was the Buckley court’s crucial error.

It is not “wholly foreign” to the First Amendment for the Commission on Presidential Debates to set rules limiting each candidate to 90 second responses to a question, or otherwise ensuring that one candidate’s speech is restricted in order to ensure that voters can hear equally from the other.  It is not “wholly foreign” to the First Amendment to limit citizens to two minutes of public comment at the beginning of a city council meeting or a legislative hearing in order to ensure that everyone has a chance to speak.  It is not “wholly foreign” to the First Amendment for the Supreme Court to set page limits on the briefs of litigants, or to give lawyers only 30 minutes each to present their case.

Rather than establishing that political spending has zero protections, or authorizing Congress to set any limits it wants, a constitutional amendment should establish an equality rationale as a compelling interest to justify limits on political contributions and spending. This is the key to overturning Buckley

Just as reformers need to go beyond simply saying money is not speech, we also need to further elaborate the argument that corporations aren’t people.  It’s painfully obvious that they are not—corporations are pieces of paper known as charters that establish legal agreements between people, their assets and the government.  Corporate charters are created by government to grant certain privileges to people that encourage their collaboration on economic or social projects. 

Lawyers and judges have defined corporations as “persons” under the law so that they can enter into contracts and be subject to laws and regulations passed by government.  This aspect of “personhood” is not problematic in practice, albeit poorly named.  They key problem occurs when courts grant corporate “persons” constitutional rights.

Fine-Tuning The Corporate Personhood Argument

Yet reformers need to more clearly acknowledge that the people who form corporations do have rights that are neither diminished nor enhanced by incorporating.  Ending the use of corporate treasury funds in elections will not remove all power from corporate interests in our elections because businessmen and women will continue to be heavily involved in politics.  By failing to articulate this, and by overpromising on what an end to corporate constitutional rights could bring, we fuel unnecessary opposition.  Further, in claiming that ending corporate constitutional rights will entirely prevent courts from throwing out consumer or environmental laws, we make an amendment to end the fiction of corporate constitutional rights to be stronger than it really is, building unnecessary opposition.  We need to be clearer on what problems arise out of abuse of the privileges granted to corporations compared to the inherent rights of an association of people, and what problems come from other problematic judicial activism.