This past Thursday the US Supreme Court, in a 5-4 decision in Citizens United v. Federal Election Commission (.pdf; 2.6MB), ruled that the US government may not limit the spending of corporations in political elections. The only limitation on corporate political speech that remains is the ban on direct contributions to candidates. Welcome to the United Corporations of America, where every vote is for sale and each of them has a price.
Corporations were granted fictional personhood in 1886 when the US Supreme Court, in Santa Clara County v. Southern Pacific Railroad, found that corporations were subject to due process and beneficiaries of the equal protection provisions of the Fourteenth Amendment. With that decision, corporations were solidly identified with private property instead of the public grants and interests that had been their overarching governance previously. That single decision also significantly weakened the public claims on corporate charters, and is seen by most corporate governance experts as an endorsement of the corporation being a “natural entity” with natural rights, rather than a created fiction chartered by the state for a specific purpose in the public interest, subject to state control. It was a mistake; an error.
As David D. Kirkpatrick notes in the New York Times, “A lobbyist can now tell any elected official: if you vote wrong, my company, labor union, or interest group will spend unlimited sums explicitly advertising against your re-election.”
The court’s ultra-conservative majority used a questionable interpretation of the First Amendment to establish that corporations enjoy the same constitutional protections as citizens. Except more. In short, if this ruling does nothing else—and many experts claim that large corporations will not exercise their new rights—it more solidly codifies corporate personhood. Already some corporations are not welcoming this new development. According to an Associated Press report, some 40 corporate executives sent a letter to congressional leaders, through Fair Elections Now, urging approval for public financing of US congressional elections.
The Supreme’s decision overrules two existing precedents:
Imagine the Swift Boating of each and every election, local, state, and national. Benjamin L. Ginsberg, the lawyer-lobbyist behind the original Swift Boat campaign opposing Senator John Kerry‘s (D-Massachusetts) 2004 presidential campaign, told Kirkpatrick:
“It will put on steroids the trend that outside groups are increasingly dominating campaigns. Candidates lose control of their message. Some of these guys lose control of their whole personalities. Parties will sort of shrink in the relative importance of things, and outside groups will take over more of the functions—advertising support, get out the vote—that parties do now.”
Ginsberg should know.
Upon announcement of the US Supreme Court ruling, movetoamend.org published a set of three proposed amendments to the US Constitution intended to address the court’s mistake:
- Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
- Guarantee the right to vote and to participate, and to have our votes and participation count.
- Protect local communities, their economies, and democracies against illegitimate “preemption” actions by global, national, and state governments.
President Obama reacted to the ruling by calling it “a major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
Laws in 24 states will have to be re-examined as a result of the decision, reports Ian Urbina for the New York Times, and all states are now prohibited from limiting corporate spending on political campaigns. Tom DeLay‘s lawyers are already arguing that the pending Texas campaign finance and money laundering case against him should be dismissed. “The money laundering and conspiracy to commit money laundering charges will definitely be undermined,” Dick DeGuerin, DeLay’s lawyer, told Urbina. “The reason is that the foundation of the prosecution’s argument is that corporate donations are illegal in any part of the political process, but the Supreme Court just struck that idea down.” It’s the old that was then—this is now defense.
Justice John Paul Stevens delivered a 90-page dissent and spoke for about 20 minutes during delivery of the ruling, saying that the court had made an error in equating corporate speech with that of human beings. With regard to the court’s retaining the ban on direct contributions to candidates, Stevens wrote, “The difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”
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