If there’s one thing Republicans and Democrats can agree on, it’s that the Citizens United decision is terrible for democracy as we know it.
What is America’s greatest contribution to civilization? I believe it to be the First Amendment to the U.S. Constitution. It is magnificent in its simplicity: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That’s it. When Americans use the cliché “It’s a free country,” this is what they mean. The government can’t tell us how to worship or dictate what we can and cannot say or write, nor can it muzzle our protests about its actions. This is the soil that nurtures the seeds of representative democracy.
In January the Supreme Court of the United States issued an opinion in Citizens United v. Federal Election Commission that extended the right of free speech in political campaigns to corporations and labor unions. In doing so, it overturned existing precedents, wiping out several decades of congressional attempts to limit the influence of money on elections, including explicit prohibitions on corporate advocacy on behalf of, or in opposition to, individual candidates. The 5–4 decision does leave in place prohibitions on direct corporate contributions to political campaigns, but it allows unlimited independent expenditures that enable corporations and unions to advocate for or against the election of a specific candidate. The only restriction on corporate and union involvement is that they may not coordinate their expenditures with campaigns, a restriction that is almost impossible to police unless somebody squeals.
No existing jurisprudence compelled the court to rule as it did. Indeed, the majority overruled two cases, one that upheld the constitutionality of the McCain-Feingold campaign finance law, which was decided just seven years ago, and another that upheld restrictions on expenditures, which was decided in 1990. The majority relied on previous decisions that declared corporations to be persons and infused them with the right to act as persons in political campaigns. But the political personhood of corporations is a fiction. Corporations cannot vote. They cannot hold office. There is no reason why they should be treated as persons when it comes to contributing money. As the court’s fourth chief justice, John Marshall, said in the famous 1819 case of Dartmouth College v. Woodward, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.” “We the people” it’s not.
The majority opinion reeks of cynicism. Masquerading as defenders of the First Amendment, the justices flirt with the original sin that it forbids: They abridge freedom of speech by giving the richest and most powerful entities in America unlimited power to have their voices heard above the din. An example of cynicism at work: One of the arguments against the result of Citizens United is that corporations already have a powerful voice that they can employ if they wish to exercise political speech—their political action committees. The majority disposes of this issue by saying that a PAC is a separate association from the corporation and thus its contributions cannot speak for the corporation. Try telling that to a candidate who campaigned against pollution in the Barnett Shale but lost to an opponent who was bankrolled by an energy company PAC. Was it really necessary to make it easier for a corporation to influence elections?
The government’s side of the case was that it has an interest in promoting fair and honest elections and that its regulations are intended to achieve this end. The response of the majority is “the fact that speakers [that is, corporations and unions exercising their free-speech rights by contributing money] may have influence over or access to elected officials does not mean that these officials are corrupt. Favoritism and influence are not . . . avoidable in representative politics.” True enough. Greed and avarice are sown into the nature of man. But that is hardly a justification for opening the floodgates to unlimited expenditures by special interests. By creating an environment in which politics is awash in money, the majority enable the corruption that they insist does not exist to flourish. They arrive at a breathtaking conclusion: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
What?!? Don’t these justices read the papers? Don’t they have cable TV? Haven’t they heard of tea parties? Are they so insulated by their own ideology that they don’t know that much of the electorate has already lost faith in our democracy? Citizens United coincides with an unprecedented level of anger against politicians and government, which the court’s opinion will feed by allowing unimaginable sums of money to flood into races, drowning individual voices. The beneficiaries of the ruling will be establishment politicians—the prominent and the powerful. Insurgent candidacies, like that of Debra Medina in the recent Texas primary, are the last thing that special interests want to contend with. If corporate money is directed at such candidates, the intent will not be to help them but to squash them. We are all powerless now, compared with those whom Theodore Roosevelt labeled “malefactors of great wealth.”
Shortly after the decision was announced, I sought out the opinion of University of Texas law professor David Anderson, who is texas monthly’s attorney on media law issues. “This is the end of politics as we know it,” he said, “the end of democracy as we know it.” He is not alone in his dark view. A recent ABC News/Washington Post poll found that 80 percent of Americans oppose the ruling, including 65 percent who “strongly” oppose it, which the sponsors of the poll characterize as “an unusually high intensity of sentiment.” Almost as many—72 percent—support congressional action to reinstate limits on contributions. The poll found broad opposition to the ruling across the political spectrum: from 76 percent of Republicans, 81 percent of independents, and 85 percent of Democrats. At a time when the right and the left can’t agree on anything, this is a strikingly high degree of bipartisan accord.
The decision will have a substantial effect on Texas politics. Not only are there more Fortune 500 companies—the ones with the bucks to spend on political races—headquartered in Texas than in any other state, but Texas is fertile ground for the type of politicking Citizens United allows. Travel is expensive because of the distances between population centers. Advertising is expensive because roughly three fourths of the population is concentrated in three huge media markets with high advertising rates. A new source of campaign cash will be a windfall for candidates. The prospect of a competitive governor’s race ensures that Texas will be in the front row of states that define how the new world of politics will work.
But what comes next remains a blank slate. The Texas Ethics Commission has issued a statement saying, “It is our position that corporations are allowed to make all types of direct campaign expenditures.” (Other than, of course, contributions that go straight to a candidate or are coordinated with a candidate, both of which are still not allowed.) Such expenditures have been illegal in Texas since time immemorial, but our regulations prohibiting them are now unconstitutional. The court said that laws requiring disclosures and disclaimers (“I’m Exxon and I approve this message”) for “electioneering communications” do not violate the First Amendment. However, the term “electioneering communications” appears nowhere in Texas law, and the Legislature, which is now compelled to pass new legislation clarifying our campaign finance laws, is not scheduled to meet until January 2011.
One possibility is that Texas could change its laws regarding corporate contributions. The Legislature is full of members who would love to get their hands on corporate or union cash. Such contributions are currently allowed in 26 states. Lawmakers could choose to make Texas the twenty-seventh, but this would only make a bad situation worse. In the meantime, the people who earn their living at politics—lawyers, politically active corporate honchos, and political consultants—are already scheming to maximize the advantages they might claim in the new legal landscape. The November general election could be a free-for-all. In the battle between Rick Perry and Bill White, for example, labor unions will likely be using their funds to help White get out the vote. How much more will they be able to do on his behalf now? We also might see coal-powered utilities shoveling in money on Perry’s behalf, while natural gas interests will pump in cash for White.
The best hope for restraining the influence of money on the political process may end up being the wariness of the corporations themselves. Their officers and directors may prove to be less than eager to exercise their new free-speech rights. A company could realize that its advocacy for White, which must be disclosed, may alienate supporters of Perry, some of whom might decide to switch to a competitor’s product. Although the conventional wisdom is that Republicans have more to gain than Democrats from rules that allow unlimited corporate contributions, Democrats allied with labor believe that the opposite is true. Unions already have their political money in the treasury from their dues-paying members. Corporations may have to go through board meetings, shareholder meetings, and huddles with lawyers before they can dip into their treasuries. Unions can more easily operate below the radar; get-out-the-vote drives don’t attract attention until the election is over. But in the long run, the only winners are the rich and the powerful. So much for equal justice under law.