United Citizens vs. Citizens United

Two years after the infamous ruling, support builds for
a constitutional amendment. 

BY Sady Doyle - In These Times

February 22, 2012 

http://www.inthesetimes.org/article/12695/united_citizens_vs._icitizens_united_i

The ramifications of the Citizens United decision are
complex. Having the issue boiled down into a slogan may
seem helpful, but it doesn't do so much to educate
those who haven't already made up their minds.

Reader: I have a confession to make. I am not a lawyer.
Nor am I a constitutional law scholar, a person who has
studied in great detail the differences in disclosure
requirements between nonprofits and for-profit
corporations, or a person who reads articles with the
word "finance" in the first paragraph. My chief
interest with money lies in whether I have enough of it
to survive. In this, I am not unlike many Americans,
all of whom are affected by the 2010 Supreme Court
decision, Citizens United v. FEC. All of us have good
reason to be invested in the fight to overturn that
decision and ensure that corporate money does not
control our election system.

The Citizens United ruling is notorious. Its immediate
effect was to nullify key portions of the bipartisan
campaign reform law known as "McCain-Feingold," which
regulated spending by outside special interest groups
trying to influence elections. The Court held that such
spending by corporations - whether for-profit or
nonprofit - constitutes political "speech" that cannot
be restrained under the First Amendment. So, Congress
cannot limit spending in elections, such as to support
or denounce candidates, even though corporations cannot
give money directly to a candidate. As for the
long-term impact... well, that's where we leave
simplicity behind.

One example of popular resistance to the Citizens
United ruling comes from Rep. Ted Deutch (D-Fla.) and
Sen. Bernie Sanders (I-Vt.). They have proposed the
same constitutional amendment in their respective
houses - Deutch's "Outlawing Corporate Cash Undermining
the Public Interest in Our Elections and Democracy"
amendment, introduced in November; and Sanders' "Saving
American Democracy" amendment, introduced in December -
both of them brief, identical and deceptively simple.

Every word of these proposed amendments is important.
The ramifications of the Citizens United decision are
so complex that an average American voter can easily
become lost trying to understand what's at stake.
Having the issue boiled down into a slogan may seem
helpful, but it doesn't do so much to educate those who
haven't already made up their minds. So, let's start,
as any good conversation should, with why those of us
who are uninitiated should care.

Shady PACs

You cannot give more than $2,500 directly to a
political candidate. The corporation you work for
cannot give any money directly. The reason is simple:
When someone gives you money, you tend to avoid
upsetting them. Politicians are implicitly discouraged
from passing laws that negatively affect powerful
donors, just like you are implicitly discouraged from
yelling at your boss. If corporations can buy
politicians, they will.

But Citizens United gave corporations the power to
"speak" (spend money) on behalf of candidates or about
"issues." One ramification is that they can make what
are known as "issue ads": Without using the words "vote
for," "support," "oppose" or "elect," they can
broadcast an ad telling you that the candidate they
oppose is pure evil. Apparently the assumption of the
five guys in the majority on the Court was that
corporations would do this openly: Hallmark, for
example, could air an ad telling you Barack Obama never
sends cards on Secretary's Day, because he is hateful.
That would be shady. But not nearly so shady as what
has happened.

What has happened is that candidates are nominally
splitting up from their own advisors, so that those
advisors can start political action committees - "Super
PACs" - which can receive and spend unlimited amounts
of money. Romney's Super PAC, for example, is run by
three former advisors of his 2008 campaign; Obama's
Super PAC is run by former aide Bill Burton. In other
words, through surrogates, politicians have effectively
found a way to receive and spend unlimited amounts of
money. If corporations - or wealthy individuals, like
casino magnate Sheldon Adelson, who's given Newt
Gingrich's Super PAC $10 million, 4,000 times his
$2,500 direct contribution limit - can buy politicians,
they will.

To define a 'person'

The Sanders-Deutch amendment has four points: First,
that "the rights protected by the Constitution" are
reserved for "natural persons," and not "for-profit
corporations." Second, that private business entities
are subject to government regulation. Third, that said
entities shall be prohibited from making any
contribution to any political campaign. And, fourth,
that Congress and the states shall have the right "to
regulate and set limits on all election contributions
and expenditures," and to authorize political
committees to "publicly disclose the sources of those
expenditures."

These points are carefully chosen, but not universally
embraced even among opponents of the Citizens United
ruling. Stripping personhood specifically from
"for-profit corporations" leaves nonprofits - for
example, the right-wing 501(c)(4) nonprofit known as
Citizens United, which helped start this mess -
uncovered from the first clause of the amendment. Given
that such organizations may participate in lobbying and
political activity without having to disclose their
donors and that they can effectively launder unlimited
money in ways comparable to Super PACs, they can
exercise tremendous influence without ever telling us
who is pulling their strings.

But stripping nonprofits of constitutional rights could
also render good organizations vulnerable. One thing a
"Corporations Are Not People" placard doesn't teach you
is that the idea of corporations having First Amendment
rights was instrumental in determining the right of the
NAACP (a nonprofit corporation) to protect its
membership lists and to bring lawsuits on behalf of
racial integration. The decision in NAACP v. Button
reads: "The activities of petitioner, its affiliates
and legal staff shown on this record are modes of
expression and association protected by the First and
Fourteenth Amendments which Virginia may not prohibit.
... Although petitioner is a corporation, it may assert
its right and that of its members and lawyers to
associate." So that decision rested not just on whether
members of NAACP had constitutional rights, but on
whether the NAACP itself had them.

Making the distinction between nonprofits and
for-profits serves one other crucial group, too:
unions. The AFL-CIO actually filed a brief in the
Citizens United v. FEC case, arguing for the Court to
invalidate a ruling that upheld the constitutionality
of restrictions on "electioneering communications"
because it too runs ads in election seasons, despite
significant differences between corporate treasuries
and union funding. Which, as several left-wing
columnists have pointed out, was a really smart
decision - provided a union has as much money to spend
on elections as Exxon. (It doesn't. It didn't. And
never will.)

Therefore, the amendment would strip "speech" rights
from Exxon and other mega-corporations, but not from
unions or nonprofts. That different treatment would be
consistent with other judicial decisions. However,
leaving 501(c)(4) nonprofits uncovered means that
corporations could still influence elections in a very
real way through those groups. In a battle of the bank
accounts between unions and for-profit corporations, a
union win is distinctly unlikely.

The good news, advocates say, is that the rest of the
amendment substantially closes this loophole by
allowing Congress to regulate corporate expenditures
and require full disclosure. The amendment may not use
the precise language preferred by every opponent of
Citizens United, but its approach is remarkably tough
and comprehensive.

Then there's the fact that it does not just strip
for-profit corporations of First Amendment rights. It
strips them of all constitutional protections accorded
to "natural persons." Given that businesses have long
used the Constitution to shield themselves against
regulation, this is unlikely to be an easy fight to
win. Corporate personhood has been invoked to defend
the right of 19th-century railroads not to pay
corporation-specific taxes (the Fourteenth Amendment;
equal protection under the law), the right of Nike to
willingly lie about working conditions in its factories
(the First Amendment; freedom of speech), and the right
of the Riverdale Mills wire-mesh manufacturing company
not to have EPA-collected water test results used
against it in court (the Fourth Amendment; protection
against unreasonable search and seizure).

Stripping all businesses of nifty
get-out-of-consequences-free cards would rouse a
tremendous amount of ire, backed by a tremendous amount
of money. Granted, it would also give consumers and the
state greater power to protect themselves against such
corporate malfeasance. But then, that's the point;
for-profit corporations are not known to be cuddly,
public-minded entities, especially not when it comes to
the matter of being regulated or sued.

The rest of the amendment, on the other hand, focuses
on rejecting the idea of expenditure as "speech," by
any person, corporation of any kind, or union, and
placing campaign funding and expenditure under
congressional and state regulation. Anyone not
interested in personally buying a congressman could
reasonably agree to this provision.

How to win?

The question of "how to win" is, again, deceptively
simple. Obviously, one wins by getting 75 percent of
state legislatures to ratify the amendment (within the
next seven years), if an amendment were approved by
two-thirds of Congress, or two-thirds of states
demanded a constitutional convention. Also obvious:
This is unlikely in the short term.

That said: Look at the title of Deutch's proposal,
which differs from the Sanders proposal only in its
name: It translates into the very placard-friendly
OCCUPIED Amendment. Reminding the 99% that the rich
have more say than we do in determining the political
agenda reliably, and increasingly, gets people's
attention.

There's organized resistance to the Citizens United
ruling; the constellation group United for the People
lists 70 "supporting organizations" on its website. Not
all of them agree on tactics, but they're willing to do
what it takes to overturn the ruling. Politicians who
need those nonwealthy voters have good reason to pay
attention.

"Dozens of members of Congress have stood in support of
one of the array of new amendments to address spending
in elections and help overturn Citizens United," says
Lisa Graves, of United for the People. "And, the Move
to Amend coalition, working in concert with other
groups, organized events in over 150 cities to protest
the anniversary of the decision. Between the groups in
the constellation and the other efforts in Congress,
well over a million Americans have signed on to
overturning the decision."

It's fair to say that this opposition is popular enough
to command the Legislature's attention. And attention
is what we are getting: Although Sen. Sanders is far
from the first congressman to stand up against Citizens
United, he is one of the most delightfully fiery.
Witness Sanders decrying the financial involvement of
the Koch brothers in funding conservative campaign
groups:

What do we think? Do we think that American democracy
is about a couple of wealthy billionaires putting
hundreds of millions of dollars into campaigns without
disclosure? Is that really the democracy that Americans
fought and died for in war after war? I think not.

His and Deutch's amendment may not need to pass quickly
- or at all, in its present incarnation - in order for
those of us opposed to Citizens United to win. But
"winning" may simply mean that the next time voters see
an attack ad on TV, they might take a moment to wonder:
"Who wrote that check?" ABOUT THIS AUTHOR

Sady Doyle is an In These Times Staff Writer. She's
also an award-winning social media activist and the
founder of the anti-sexist blog Tiger Beatdown
(tigerbeatdown.com).

___________________________________________

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