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April 2010

Volume 23, Number 4
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Court's Money Ruling Is a Red Herring

By Jane Anne Morris
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April 2010
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Before trying to counter the recent Supreme Court decision in Citizens United v. Federal Election Commission (FEC), we ought to sort out what this decision does and does not do. Despite dire claims that the decision is the nail in the coffin that it will shake the current election system to its core, the decision changes very little of the current situation.

Just how small a change it will bring can be illustrated by looking at one of the cases overruled by Citizens United—the 1990 Austin v. Michigan Chamber of Commerce case, hailed by many as a ray of hope in the morass of campaign finance reform efforts. Austin affirmed an extremely mild Michigan law that essentially prevents the Michigan Chamber of Commerce (one type of nonprofit corporation) from spending general funds to support or oppose a political candidate. That law specifically defined "person" to include corporations.

The Austin case accepts that money equals speech (following the Supreme Court's 1976 Buckley v. Valeo decision), that corporations can spend treasury funds on initiatives and referendums, and that Political Action Committees' (PACs) use of segregated funds are legal and constitutional. Austin also affirms that corporations are "persons" with constitutional rights and that they have both First Amendment speech rights and Fourteenth Amendment equal protection rights. That such a case is regarded as the Magna Carta of campaign reform efforts must leave corporate counsel hiding their smirks.

The Supreme Court decision in Citizens United is a gift to the right wing, not the way many pundits claim, but because of the way that many in the mainstream media have reacted to it, in full denial that it is a red herring. Let's review where we were before the Citizens United case was decided.

After the 2002 McCain-Feingold Act went into effect, the public no longer had reason to suspect that corporate lobbying, campaign contributions, or corporate cash affected elected officials' votes on legislation or positions on issues. The McCain-Feingold Act transformed elections into paragons of open discussion, free sharing of ideas, thoughtful parrying, and heartfelt, non-partisan, pro-civic engagement orgies, right?

Look at any index: the role of money in elections, voting records that mirror campaign contribution patterns, the quality of debate, the proportion of legislation clearly designed to benefit some corporate interest group, etc. McCain-Feingold recalibrated, rearranged, and redecorated the loopholes used to determine how election money flows and is tallied. It did not eliminate that money or the influence it reflects. (For a current example, unrelated to the Citizens United case, look at the New York Times front-page article on corporate influence: "In Black Caucus, a Fund-Raising Powerhouse: Corporate Donors Buy Access, and Push Agendas, at Lavish Events," New York Times, February 14, 2010.)

The previous major national paroxysm of campaign reform was hardly more effective. The main claim to fame of the Federal Election Campaign Act—passed in 1971; amended in 1974; shredded in the 1976 Valeo decision; liquefied in the 1978 Bellotti ruling—was legalizing PACs. Do those of us who lived through the Nixon years recall a sudden elevation of the quality of elections and political discussion, and correlative diminution of political corruption in the years after its passage. Nope.

The Citizens United case was presented in a false frame: "Must we limit speech in order to have free and fair elections? Or must we accept corporate-dominated political debate in order to preserve free speech?" This false dilemma disappears if we reject corporate personhood with constitutional rights. Only if we pretend that corporations are persons under the Constitution is limiting corporate "speech" a constitutional infringement.

After the Citizens United ruling, this is still true. Corporations function like retroviruses, taking over the rights and protections that we wrote for humans and then using them against us, their human hosts. The opinion of the Court is chock full of paeans to the nobility and preciousness of unfettered free speech—of corporations. Rights we the people fought for—at the cost of much life, liberty, and happiness—are now used with great (and seemingly invisible) regularity to shield corporations from government "interference."

In response, Maryland Congressperson Donna Edwards's proposed Constitutional Amendment, inspired by the Citizens United decision, would guarantee that, "Congress and the states may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity." Would this amendment end corporate domination of our political process? Clearly not, since, beginning in the 1870s and 1880s, federal judges have worked hand-in-hand with corporate counsel to haul into place the edifice of constitutional protections that exempt corporations from the authority of the very states that created them.

Rather than overstating the significance of the Citizens United decision, offering measures that tiptoe around the fundamental problem, and wallowing in the usual moaning and groaning about corporate influence, let's address the problem directly, something we should have done generations ago.

Peek outside the democracy theme park and repeat after me: only if we pretend that corporations are "persons" under the Constitution is limiting corporate "speech" a constitutional infringement. And kick that red herring out of the way.

Z
Corporate anthropologist Jane Anne Morris's book, Gaveling Down the Rabble: How "Free Trade" is Stealing Our Democracy (Apex Press, 2008), is cited in an amicus brief filed in support of the Federal Elections Commission in the Citizens United case. She is working on a book about the Supreme Court.
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