In the recent case of Citizens United v. Federal Election Commission (2010) the U.S. Supreme Court reached one of the most egregious decisions in U.S. judicial history, one that will return to plague us in the election campaign season of 2010.
The Citizen United decision eclipses Bush v. Gore (2000) in ideological “activism,� a case which, you will recall, held that while you or I have a constitutional right to vote, we do not necessarily have the federally protected right to have that vote counted or re-counted, especially if state mismanagement of vote counting, combined with citizens’ fears of uncertainty of outcome, make it preferable to cease counting and decide the election outcome (in this case by 5 to 4 vote) in December, in spite of the fact that the U.S. Constitution itself anticipates the situation “if a president shall not have been chosen before the time fixed for the beginning of his term� (the following January). So much for Constitutional framers’ intent.
Former President Bill Clinton writes in his autobiography, “My Life� (Barnes & Noble 2004): “If Gore had been ahead in the vote count and Bush behind, there’s no doubt that the Supreme Court would have voted 9 to 0 to recount the vote. Bush v.Gore will go down in history as one of the worst decisions the Supreme Court ever made, along with the Dred Scott case.�
We might remind ourselves that the case of Scott v. Sanford (1857) involved a former slave, freed by his master and taken to a free territory where slavery was prohibited by statute. Scott, however, was arrested on a train and denied his civil rights. In response, Dred Scott brought suit in the Missouri Circuit Court to recover his freedom. The Supreme Court held, as subsequently reported, that “The Negro was not included, and not intended to be included, under the word ‘citizen’ in the Constitution, and therefore could claim none of the rights and privileges secured to citizens of the United States.�
Now comes Citizens United. The case involves a political action corporation that sought to air and promote a TV film vilifying Hillary Clinton during the primary season last year, 2009, in explicit violation of the McCain-Feingold Campaign Reform Act (2002), which prohibited corporations and unions from broadcasting “electioneering communication� (for or against a particular candidate) within 60 days of an election or 30 days of a primary. The McCain-Feingold Act had been previously upheld by both the FEC and the federal district court.
The Supreme Court could have resolved the case on narrower grounds, but instead, by vote of 5 to 4, the court decided more broadly that corporate funding of independent political broadcasts cannot be limited, because corporations are “persons� enjoying “personhood,� with Constitutional rights of “equal protection� and “free speech,� and, as stated in Buckley v. Valeo (1976), money is speech.
Really? Funny, the Constitution says nothing about this. Perhaps not all “equals� are truly equal. It is no longer clear whether your or my puny campaign contributions are still subject to limits, but the Supreme Court has made it clear that the floodgates are now open for corporations and their paid lobbyists to spend unlimited millions of dollars attacking and/or supporting candidates for political office.
This self-styled “non-activist� Supreme Court majority misinterpreted and overturned the long-standing precedents of a string of cases leading up to Santa Clara v. Southern Railroad (1886), Austin v. Michigan Chamber of Commerce (1990), and McConnell v. FEC (2003), just to name three. The Citizens United opinion renders nugatory the Tillman Act (1907), which banned corporate contributions to federal candidates, as well as the Taft Hartley Act (1947), which limited both corporations and unions equally, just to be fair. Finally, of course, Citizens United leaves McCain-Feingold in shambles. Naturally, John McCain is horrified.
Justices Kennedy, Roberts and Alito found justification, they thought, in a straightforward reading of the text of the U.S. Constitution, affirming the sanctity of “free speech.� The fact that corporations are nowhere mentioned in the Constitution, in connection with either “persons� or “free speech,� did not seem to matter. The majority never answered dissenting Justice John Paul Stevens’ question: “Does the First Amendment permit any distinction between corporate speakers and individual speakers?� The Constitution clearly refers to individual, natural, human speakers, that is “persons,� not corporations. This doesn’t mean corporations do not have rights allowed them by the public. But corporate rights do not trump citizens’ rights.
Originally, the idea that corporations were “persons� was in the sense that corporations had standing to sue, or be sued, in the courts of law. However, corporations were seen from the beginning as artificial creations, existing at the will and forbearance of the public. If corporations were entitled to all the rights of natural persons, then they should be subject to all the responsibilities of natural persons. Let’s take a closer look, and ask a few questions to see whether this is true.
Do corporations have a Constitutional right to vote? Should they? How many votes would they get?
Should corporations be drafted into the military? How many executives, employees or shareholders should serve? Could we send them all off to Iraq?
Do corporations have the right to bear arms? Rifles? Nuclear weapons?
Do corporations serve on juries as civilian persons do?
Can corporations run for political office? If born in America, could General Electric or General Motors be elected president of the United States?
Should corporations be stripped of their legal and tax benefits that are not available to private persons?
Should corporations convicted of felonies be shut down and all members imprisoned?
And, oh yes, can anyone explain how a person can be owned, as a corporation is?
Yes, corporate speech is speech of a sort. But why should such speech be the most constitutionally protected “free speech,� immune to regulation, merely because the speaker is a corporation? Why did the Supreme Court fail to mention the protection of free speech of real persons whose rights really are enshrined in the Constitution? When a corporation pays money to a legislator to enact legislation, is that protected “free speech� or is it a bribe?
What if the speech were knowingly, deliberately and viciously false and defamatory, as it was in the Citizens United attack on Hillary Clinton? Would such hate speech be beyond reasonable, rational regulation, simply because the speaker is a corporation?
Was America founded “by and for the people� or “by and for the corporations�? Isn’t there something wrong with the Supreme Court’s majority view of democracy?
President Barack Obama said of the Citizens United decision: “This ruling strikes at our democracy itself,� and “I can’t think of anything more devastating to the public interest.� He added: “I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.�
The Achilles’ heel of the Supreme Court decision is precisely that it gives foreign-owned corporations more influence over U.S. elections than ordinary American citizens have. This glaring defect is the entry key by which legislators in Congress can begin to roll back the noxious impact of Citizens United, and restore democracy, putting control back into the hands of the American people, where the Constitution says it should be. We have to start working on this right now, to regulate corporate behavior and save capitalism from itself. The time is short. The electoral campaign season starts soon and ends in November 2010.
Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.
