As The Anti-Citizens United Movement Grows, The Plutocrats Will Surely Attack
23 November 2012
Fresh off some overwhelming victories at the ballot box in Montana and Colorado, proponents of a constitutional amendment have some wind in our sails. By margins of three to one, voters in these states, and in more than 175 cities and towns, explicitly instructed their congressional delegation to support an amendment to mend the damage to our Constitution wrought by the Supreme Court’s misguided ruling in Citizens United v. FEC.
These victories may mark a turning point for the issue that ironically may lead to a new onslaught of opposition. As Mahatma Gandhi noted, “First they ignore you, then they ridicule you, then they fight you, then you win.” We will soon move from the stage of ridicule to fight, which means that to be taken seriously supporters of an amendment to roll back the encroachments of the Supreme Court upon self government must now begin answering some serious questions.
Before addressing those questions, however, it is worth reflecting on just how far this movement has come. In the aftermath of the 1976 ruling Buckley v. Valeo, which struck down mandatory limits on candidate campaign spending that Congress had enacted in response to Watergate, Democratic Senator Fritz Hollings of South Carolina began a lonely crusade to overturn the Court. He was joined by then-Republican Senator Arlen Specter of Pennsylvania.
The high watermark for their effort came in 1993 when 53 Senators, including six Republicans, voted in favor of a sense of the Senate resolution stating “Congress should adopt a joint resolution proposing an amendment to the Constitution that would empower Congress and the States to set reasonable limits on campaign expenditures.” They were ignored. No advocacy organizations backed their efforts. No newspapers covered this fairly remarkable vote.
Hollings persisted undeterred, only to face ridicule and scorn. By 1997, one organization (U.S.PIRG) began backing the amendment, but others such as Common Cause, Public Citizen, and the League of Women Voters kept their distance. The argument then, still made by some today, was that an amendment was so difficult to pass that it amounted to a harmful distraction from goals that were more achievable in the short term. Most reformers have now abandoned this zero sum logic and realized that a vibrant effort on all fronts will help to pass disclosure requirements, ethics laws, public financing of campaigns, and a constitutional amendment rather than any proposal serving as a distraction from the others.
But back in 1997, Republican Senator Mitch McConnell was more than happy to use the lack of support among a broader reform community to ridicule Hollings on the Senate floor. “This ought to be a no brainer,” McConnell jeered. “Even Common Cause is against this proposal. Even the Washington Post is against this proposal... In short, this proposal doesn’t have any constituency. Even the reform groups are not for it.” Support dropped to 38 Senators. By 2000, it was down to 33.
By overreaching so egregiously in Citizens United, the Supreme Court breathed new life into the movement for a campaign finance amendment and revived a discussion about corporate constitutional rights. When 75 percent of voters in a conservative state like Montana or a presidential battleground state like Colorado cast official ballots backing a constitutional amendment, we have moved past the stage of ridicule. Beyond the two states where voters have explicitly instructed Congress to support an amendment to respond to the Citizens United ruling, a majority of legislators in nine other states have formally endorsed the idea. More than 400 cities and towns are on record in support of an amendment either through their city councils, town meetings, or direct votes of the people. House Democratic Leader Nancy Pelosi and President Barack Obama have both said we need an amendment process to overrule Citizens United.
But as the movement gains credibility, so too can we expect it to gain more vocal opposition. And to move beyond the “fighting” stage to winning, we will need more sophisticated answers to critics than the bumper sticker slogans of “money is not speech” and “corporations are not people” that accurately describe the core values at stake but also leave room for ill-founded counter attack.
Is Spending Money The Same As Free Speech?
We could begin by noting that while it is entirely true that money is not speech, the Supreme Court never said that it was. What the court majority said in Buckley was that “virtually all meaningful political communications in the modern setting involve the expenditure of money.” The flaw in this logic is not that dissemination of ideas requires resources, but that the Court then presumed that it was always the speaker that needed to spend the money, when to the contrary much our most important speech is instead paid for by the listener.
For example, when Occupy activists occupied Zucotti Park near Wall Street in the fall of 2011, they didn’t expend many funds. But, people heard their speech because they bought newspapers that disseminated it. Or, they bought TVs, and radios, and computers which disseminated it. We can draw a clear line between speech that is pushed out by the speaker, and speech that a reader subscribes to or a listener tunes in to hear. Even with speech that is paid for by advertising revenues, or subsidized by other sources (in cases such as NPR, or the Washington Examiner), we can draw a distinction between speech such as news coverage and opinion that is sought out, and paid speech that is foisted upon a listener in unsolicited advertisements. Books, newspapers, and TV programs – yes even Fox News – clearly fall within the purview of free speech and the free press, even if they do require the expenditure of money. But TV commercials, “junk” mail, and internet pop-up or banner ads fall within the purview of paid speech.
It is ironic that the Court missed an opportunity to draw this distinction in the case of Citizens United, which dealt with both a pay-for-view movie that clearly was something viewers would be opting into, and advertisements that simultaneously promoted the movie and attacked a federal candidate for office (Hillary Clinton) that was clearly a form of paid speech foisted upon viewers.
Even unsolicited political speech surely does deserve strong constitutional protections. The Supreme Court, for instance, has long upheld the right of people to knock on the doors of their neighbors to express a political viewpoint, even if the community can ban door-to-door salesmen and solicitors. Anyone is free to set up a soapbox in the public square and say anything they want. But these protections are not unlimited. Communities can and do set reasonable time, place, and manner restrictions even on political speech. (That’s why some Occupy protests were not allowed inside courthouses).
Justice Stevens drew the distinction between free speech, which deserves strong First Amendment protection, and paid speech perfectly in his concurring opinion in the 2000 case known as Nixonv. Shrink Missouri Government PAC, saying:
Money is property, it is not speech. …The right to use one’s own money to hire gladiators, or to fund “speech by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.
Note the important difference between Stevens saying that spending money on speech “warrants significant constitutional protection,” and the language of some early amendment proponents that the judiciary shall not construe the “spending of money to influence elections to be speech under the First Amendment.”
The problem with an absolutist approach that provides zero constitutional protections for the spending of any money to influence any election is that it feeds directly into the hands of opponents to offer straw man arguments. For example, on the Senate floor in 1997, McConnell engaged in a colloquy with fellow reform opponent Republican Senator Pat Roberts of Kansas to mock the Hollings-Specter amendment:
McConnell: “So it would not be inconceivable then that all of us in the Senate and House might decide that what is a reasonable amount of speech for a challenger could be $5,000 in the next election.”
Roberts “That might be a little harsh.”
McConnell “We have total power to do that under the amendment.”
Roberts: “That is correct.”
McConnell further expounded his concocted parade of horribles by noting that Congress could choose to ban all political spending except by candidates, prohibiting a citizen from so much as printing a lawn sign or leaflet that would raise an issue that neither candidate wanted to address in their campaign.
McConnell: Now, let me ask my good friend from Kansas, since we would be making the rules here in Congress, and since we would be given the permission to make these rules since this is an amendment to the First Amendment of the Constitution of the United States for the first time in history, I ask my good friend from Kansas, might it not be a shrewd move on the part of all incumbents to say that those in support of or in opposition to a candidate cannot speak at all?
Roberts: I really had not thought of that proposal because it is so farfetched from democracy as we know it and participation in the election process as we know it. It could happen. It could happen.
McConnell: Maybe some people believe that the 105th Congress or the 106th Congress would not do much damage with the power granted by this resolution, but I ask our friends on the left: Are you confident that some Republican controlled Congress in the future with a 60-plus majority, with a Republican in the White House, will not seize the occasion to limit political activities by liberal leaning groups, labor unions, the media, and others? Would you not like the Court to be able to stop such an effort on the grounds that it violated the First Amendment?
Given what we have seen in recent years from some Republican legislators willing to enact laws to suppress voting from populations that disagree with them in the form of restricting early voting and photo ID requirements that are specifically designed to keep legitimate voters from casting ballots, we should perhaps take McConnell’s words to heart.
Anticipating And Avoiding The Plutocratic Counter-Attack
To counter Senator McConnell’s parade of horribles, amendment proponents must articulate—ideally within the language of the amendment itself—what sorts of limits would be unacceptable and thus the Court should be able to strike down, and what sorts of limits the Court must uphold. We could begin with some of Buckley’s core logic, namely that even if spending money on political speech deserves some protections, limits are justified if those limits serve a compelling interest. So, just as the First Amendment does not protect yelling “fire” in a crowded theater that is not on fire, it does not protect all spending of any amount on political speech.
Buckely’s shortcoming was that it identified a narrow definition of political corruption as the only compelling interest it recognized in order to justify limits on money in politics. So, the Court reasoned that contributions to candidates could be limited, because they could have the effect of unduly influencing the candidate’s judgment much as a bribe would. Buckley said the appearance or occurrence of corruption was an anti-corruption basis to cap campaign contributions.
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 Now.org 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.
As an example of the inherent rights of a group of people, think again about the Occupy activists in Zucotti Square. They were not incorporated, and yet they had strong rights of association. They could, and did, appoint spokespeople to speak on behalf of the group. If the government had demanded that they turn over a list of all of their names, they would rightly have refused, based upon their individual rights of privacy and association. They even held collective property, for instance the library of donated books that they maintained. While there may have been dispute over whether the police used due process in seizing those books, nobody ever argued that those activists had no right to due process simply because they were not incorporated.
Had the Occupy activists formed a non-profit corporation in order to facilitate entering into contracts, providing their members with some limited liability, and other privileges, all of the above rights would have been maintained. But no extra rights would have come about. For Occupy Inc. to claim that it had speech rights separate and above the rights of the occupiers who comprised it would be absurd.
Further, the government could condition those privileges with restrictions. For instance, if occupiers formed a corporation under section 501(c)(3) of the tax code on order to receive tax deductible contributions, the government could prevent those privileges from being used to fund speech that endorsed a political candidate. Occupy Inc. could not say that because it is now a legal “person” it has the right to use its tax deductable funds for electioneering, although nothing prevents the actual occupy activists from funding electioneering with their own non-tax deductable dollars through a political committee. Their individual speech rights would be neither restricted nor enhanced by their corporate form.
So, when opponents say that ending the court-fabricated doctrine that corporations have constitutional rights will lead to terrible things like the government being able to seize a corporation’s assets, reformers have a strong answer. The government could not do so because as with the books in Zucotti Square, the government would be seizing the assets of real people. Likewise, as in the 1958 case NAACP v Alabama, the government cannot arbitrarily require a group of people to turn over their membership lists, whether or not that group is incorporated. Further, the corporate charter itself and other statutes and contract law can serve to protect a corporation’s assets.
This response is surely correct, yet taking it to its logical conclusion then undermines some of the upsides that many amendment supporters hope to achieve. Returning again to the Occupy example, remember that Occupy Los Angeles had almost reached a deal to leave their encampment at City Hall in exchange for some farmland. Imagine such a deal had been struck, and the activists suddenly found themselves with real property. Maybe they would choose to incorporate to gain the business advantages of the corporate form, or maybe they wouldn’t. But either way, suppose now that the city of Los Angeles decided to tax the fenceposts that Occupy Farm had erected to keep their cattle in – and to tax them at a higher rate than on surrounding farms.
Faced with unequal treatment by the law, Occupiers might go to court decrying the unfair taxation scheme. Would be right to do so, whether they were incorporated or not? It was precisely this question of fair taxation of fenceposts that the Supreme Court tackled in an 1898 case that many grassroots activists say launched the entire doctrine of corporate constitutional rights in the first place. In the head notes, or introduction to its Santa Clara County v. Southern Pacific Railroad, the chief justice is reported to have said:
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
Had the Justice been more careful and said that the Fourteenth Amendment applied to the people who comprise a corporation that would have been clear and defensible. But he didn’t. In a sloppy, off the cuff comment, Justice Waite created a metaphor of corporate constitutional rights that may have worked just fine in relation to taxation of fence posts, but which Justice Kennedy would completely abuse and misconstrue in Citizens United. Indeed, corporate property rights are not the same as constitutional rights.
In writing that a law banning the spending of corporate treasury funds on political campaign amounted to an impermissible restriction based upon a “speakers” identity, Kennedy wrongly equated the speaker with the corporation rather than with the real people who comprise the corporation. Government should not be able to restrict those real people’s free speech, but it is not required to allow them to use the economic privileges it has granted them in the corporate form to fund that speech. As with a tax-deductible Occupy Inc, the people comprising the corporation could still speak collectively, just not using that corporate form.
However, the real people behind a corporation, its shareholders, retain their rights to speak and associate politically. Even if they could not use their corporate treasury to fund political advocacy, they could and would form political committees using their own personal funds. These committees would, and should, retain a strong voice in our political process. Reformers need to acknowledge this, and in fact embrace it.
The key question then is whether government can treat a corporation differently because it has given it different powers and privileges. Just as it might be reasonable to tax an entity differently if you have given it special powers, it is justified to ensure that it not use special powers given for an economic purpose to have an unfair advantage in the political marketplace. Calling a corporation a person and giving that person rights obscures this distinction—but it is an important one if we are going to craft constitutional remedies that specifically target court-awarded speech rights for corporations.
The Way Forward With Corporate Personhood
Corporate personhood is a metaphor. But it also is a legal crutch for lawyers and judges who don’t want to take the time to explain the associational rights of groups and find it more convenient to treat the group as its own legal entity. That’s fine, except for when judges go too far and start assigning those entities inherent constitutional rights of their own. Reformers are right to demand and end to the fabricated notions of corporate constitutional rights.
But reformers should not argue ending the abuse of this metaphor solves all our social problems or prevent courts from throwing out consumer or environmental protections.
For instance, courts have thrown out zoning laws that prevent giant box stores like Wal-Mart from locating in small downtown communities using the metaphor of corporate constitutional rights. But, just as the government seizing Wal-Mart’s assets without due process would violate the rights of its shareholders; conservative judges could rule that government could not restrict Wal-Mart’s use of property it bought to construct a store on without violating the individual rights of its shareholders. The core problem in this instance may not be whether the box store is to be built by a group of people who are incorporated or not incorporated; the challenge revolves around government’s power to make land use decisions that do affect real people.
Perhaps we need state constitutional amendments to clarify that land use policies do not amount to unauthorized “takings” of property, whether that property is held by an individual or a corporation. Alternatively, maybe we just need states to be more responsible about granting, and revoking corporate charters when they do not fulfill the public interest, or placing limits on the size and location of stores that utilize incorporation. In any case, we ought not pretend that ending corporate constitutional rights is a silver bullet. Rather, it is one of many necessary steps.
Not Losing the Forest for the Trees
As we head into the third phase of passing an amendment, where our opposition moves from ridicule to fighting, we should not only work to clarify our aims, but also look to our history for guidance as to how detailed an amendment must be. The 16th Amendment to authorize a federal income tax was similarly designed to overrule a controversial 5-4 ruling of the Supreme Court that held income taxes to be unconstitutional. Reformers wanted the tax as a progressive measure, and early versions of the 15th Amendment specifically authorized a progressive tax code that allowed for higher rates on the rich. The final language that passed Congress and was ratified by the states stripped the stipulation for a progressive tax, and yet the courts eventually upheld progressive income taxes under the 15th amendment. The people’s will that was demonstrated by the movement to enact the amendment carried more weight than the actual text of the amendment itself.
So while we need to take seriously the task of drafting actual amendment language, we ought not take the purity of the words so seriously as to frighten our allies and divide ourselves. The strength of our movement is more important that the strength of whatever words get enacted. Fifty years from now, a 28th amendment dealing with the underlying issues of Citizens Untied will mean what the people in our country think it means, and what lengths they are willing to go to impeach or vote out officials who defy it.
Our task at hand, then, is to build a strong, clear, and durable movement as we can. Our opponents will play a valuable role by pushing back with arguments, some with merit and some without. As we move from ridicule to the fight, we should remember to thank our opponents for taking us seriously, and to return the favor by responding to their critiques with thoughtful answers that go beyond the slogans that have brought us this far along.