8 Words That Could Save Our Country
Continued from previous page
In 2007 in a case based on the same provision of the same law as Citizens United, the Court held that corporate and union ads were constitutionally protected so long as they did not explicitly endorse or oppose candidates. Citizens United expanded that constitutional protection. David Kairys, Professor of Law at Temple University wryly observes, “before Citizens United, a corporation or union could sponsor ads with its treasury funds that said ‘Tell Congressman Smith to stop destroying America.’ After Citizens United, they can add at the end ‘and, by the way, don't vote for him.’”
Nathaniel Persily, Director of the Center for Law and Politics at Columbia predicts that Citizens United will not be the Supreme Court’s last obeisance to corporations. “… the ban on soft money, which prevents corporate and union contributions to political parties and candidates, might be the next restriction to fall. If corporations are like individuals, how can Congress completely ban soft-money contributions from one while letting the other give within limits? The case RNC v. FEC, now working its way up to the court, poses a very similar question. Given the tone of Citizens United, we should expect a bold response.”
Heather Gerken, Professor of Law at Yale Law School believes the impact of Citizens United goes even further to undermine democracy by dramatically narrowing the definition of political corruption. “For many years, the Court had gradually expanded the corruption rationale to extend beyond quid pro quo corruption (donor dollars for legislative votes). It had licensed Congress to regulate even when the threat was simply that large donors had better access to politicians or that politicians had become ‘too compliant with the[ir] wishes’. Indeed, at times the Court went so far as to say that even the mere appearance of ‘undue influence’ or the public's ‘cynical assumption that large donors call the tune’ was enough to justify regulation. That is true no longer.” As the Court announced in Citizens United, "ingratiation and access . . . are not corruption” and "The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. ...”.
The Roberts Court has ruled that Congress cannot intervene to make elections fairer by reducing the campaign advantage of a billionaire candidate. It has denied Congress the power to intervene to make elections fairer by reducing corporation influence. And it has intimated that Congress cannot even intervene to eliminate the potential for money-related corruption.
It is time for a four word Constitutional Amendment: “Money is not speech.”
Happily many groups are working for a constitutional amendment that strips corporations of personhood and ends the free speech rights of unlimited campaign spending. Most are small and poorly financed. Some like Public Citizen’s www.dontgetrolled.org focus on getting names on a petition urging Congress to act. Others like the coalitions around www.movetoamend.org and www.freespeechforpeople.org are proposing the actual text of amendments.
In February Representative Donna Edwards (D-MD), introduced a resolution to amend the U.S. Constitution. It reads, “The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.”
This is a step in the right direction but I worry about the wording. First of all, a national campaign to give Congress the right to regulate may end up putting the spotlight on Congress, the only institution that has a lower approval rating than Goldman Sachs. Secondly, the amendment does not get to the heart of the issue by challenging the personhood of corporations and cutting the link between money and free speech rights.