The Uphill Battle Against Citizens United: Tricky Legal Terrain and No Easy Fixes
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These are some of the questions that are not being clearly discussed as many progressive groups are increasingly promoting punishing corporate America by revoking its constitutional rights. But raising these very questions, elevating the public discussion around them, and getting to specifics is precisely what is needed before any prospect for reform will be taken more seriously.
Democracy’s Nemesis: The Supreme Court
“Rarely have so few imposed so much damage on so many,” is how Bill Moyers refers to the Supreme Court’s deregulation of money in politics, in a forward to a new book on how decades of Court doctrine have increased political speech for corporations while leaving individuals’ rights unchanged and in some cases diminished. These rulings are not hard to understand. But they must be understood to coherently discuss what reforms and choices are available to Americans in 2012.
Today’s rules for raising and spending campaign cash go back to the post-Watergate era when Congress decreed that campaign donations and political spending could be regulated. With a few temporary exceptions, since 1976 the Court has been rolling back that proposition. In 1976, the Court held in Buckley v. Valeo that spending money was a form of political speech—not conduct—entitled to the highest First Amendment protection. Buckley ended congressional and state limits, and enabled wealthy individuals to spend unlimited sums from their own pockets in their runs for office.
But that was just the beginning. In 1978, in Bank of Boston v. Bellotti, a case involving a Massachusetts ballot referendum, the Court held that corporations could spend money in non-candidate elections. No candidate meant nobody could be corrupted by donations, it held. Bellotti invalidated laws in 30 states, prompting a subsequent explosion of corporate-financed ballot measures in states with that option, a significant factor in undermining the legislative process in those state capitals.
This campaign finance landscape essentially held until John Roberts became Chief Justice. In the intervening years, the Supreme Court continued to expand corporate speech rights, repeatedly ruling that commercial speech, including advertising and product labeling, was more deserving of First Amendment protection than public-interest efforts by local, state and federal governments.
The Supreme Court blocked efforts to include energy conservation notices in utility bills. Lower federal courts followed and subsequently rejected pro-consumer labels and health warnings on milk, tobacco and cellphones. Another ruling upheld pharmaceutical companies’ right to use medical records for commercial purposes, diminishing personal privacy. And another ruling held that corporations have constitutional protection against searches by federal agencies. Thus, in a range of rulings beyond elections, the federal judiciary expanded corporate constitutional rights and eroded legislated public protections.
“In the last few years, the Supreme Court and lower federal courts have shown a new hostility toward laws that regulate the economy and try to limit the effects of economic power,” wrote Jedediah Purdy in Democracy Journal’s Winter 2012 issue. “The First Amendment has helped the Supreme Court do for the consumer capitalism of the Information Age what freedoms of contract did for the Industrial Age: constitutionally protect certain transactions that lie at the core of the economy.”
The Court is not unable to distinguish corporations from people as many activists assume. The Roberts Court ruled in 2011, without dissent, that corporations are not entitled to a personal privacy right exemption to block Freedom of Information Act requests. Chief Justice Roberts, who wrote the opinion, concluded by saying the justices “trust that AT&T will not take it personally.” But this was not a constitutional decision. And in elections, the Court has blurred the distinctions between corporate and individual participants.