To make his point, Stevens even quoted Chief Justice John Marshall, who served from his appointment by President John Adams in 1800 until 1835, making him one of America’s longest-serving chief justices. Sometimes referred to as the “father of the Supreme Court,” Marshall had written in an early-nineteenth-century decision some text Stevens quoted in his Citizen’s United dissent: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”
Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their behavior in the Citizen’s United ruling, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment …”:
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it…. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation of assets … that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in US elections, corporations may be foreign controlled.
Noting that “they inescapably structure the life of every citizen,” Stevens continued:
It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.
In this very eloquent and pointed dissent, Stevens even waxed philosophical, asking a series of questions for which there couldn’t possibly be any clear or obvious answers if the Court were to maintain the “logic” of its Citizens United ruling:
It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful.
The dissenting justices argued that the majority’s ruling wasn’t merely wrong, both in a contemporary and a historical sense, but that it was dangerous. The dissent was explicit, clear, and shocking in how bluntly the three most senior members of the Court (along with the newbie, Sotomayor) called out their colleagues, two of whom (Roberts and Alito) had been just recently appointed by George W. Bush.
The dissenters noted that it was their five colleagues (and their friends in high places) who were clamoring for corporations to have personhood and free-speech rights, not the American people who were the “listeners” of such speech: “It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.”
They continued, noting that corporate interests are inherently different from the public (and human) interests:*
[The] Austin [Supreme Court decision that upheld McCain/Feingold in 2003] recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”
By having free-speech rights equal with people, Stevens argued, corporations will actually harm the “competition among ideas” that the Framers envisioned when they wrote the First Amendment:
“[A] corporation … should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.” In a state election … the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears little or no correlation to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized.
Moreover, just the fact that corporations can participate on an unlimited basis as actors in the political process will, inevitably, cause average working Americans—the 99 percent who make less than $300,000 per year—to conclude that their “democracy” is now rigged.
The result will be that more and more people will simply stop participating in politics (it’s interesting to note how many politicians announced within weeks of this decision that they would not run for reelection), stop being informed about politics, and stop voting. Our democracy will wither and could even die.
When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing.
The predictable result is cynicism and disenchantment: an increased perception that large spenders “call the tune” and a reduced “willingness of voters to take part in democratic governance.”
And even if humans were willing to try to take on corporations (maybe a billionaire or two with good ethics would run for office?), virtually every single person who tries to run for office will have to dance to the corporate tune or risk being totally destroyed by the huge and now-unlimited amounts of cash that corporations can rain down on our heads.
The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm may translate into special advantages in the market for legislation.
Scalia Is Offended
Horrified by the blunt language of the dissent and of being called “misguided,” “dangerous,” and “reckless” by his colleagues, Justice Scalia wrote a short concurring opinion in an attempt to once more speak up for the “disadvantaged” corporations:
Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them? … Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this [corporate] speech to the public debate.
Justice Roberts offered his own short concurring opinion, in self-defense, saying that for “our democracy” to work, the voices in the public arena shouldn’t just be a human on a soapbox but must include massive transnational corporations:
First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.
The Court properly rejects that theory, and I j
oin its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.
In other words, if a single corporation spends $700 million in television advertising to tell you that, for example, Senator Bernie Sanders is a “bad person” because he sponsored legislation that limits its profitability, and Sanders can raise only $3 million to defend himself with a few local TV spots, that’s just the reality of “the vibrant public discourse that is at the foundation of our democracy.”
The Decision and the Damage Done
There is no better evidence of the harm that the Citizens United decision poses to our democracy than to see the immediate reaction from the corporations—or, more accurately, the persons who run the corporations.
Two weeks after the decision, a headline in the New York Times said: “In a Message to Democrats, Wall St. Sends Cash to G.O.P.” The article quoted banking industry sources (who now knew that they could use their considerable financial power politically) as saying that they were experiencing “buyer’s remorse” over having given Obama and the Democrats $89 million in 2008: “Republicans are rushing to capitalize on what they call Wall Street’s ‘buyer’s remorse’ with the Democrats. And industry executives and lobbyists are warning Democrats that if Mr. Obama keeps attacking Wall Street ‘fat cats,’ they may fight back by withholding their cash.”3
The article quoted several banking sources as saying they were outraged that the president had criticized their industry for the financial meltdown of 2008 or their big bonuses. It wrapped up with a quote from John Cornyn, the senator from Texas tasked with raising money for the National Republican Senatorial Committee, noting that he was now making regular visits to Wall Street in New York City. Speaking of the Democrats who dared challenge the banksters, he crowed: “I just don’t know how long you can expect people to contribute money to a political party whose main plank of their platform is to punish you.”
It was a loud shot across Obama’s bow, and within two weeks the president had changed his tune on a wide variety of initiatives, ranging from taxes on the wealthy to backing away from truly strong regulations on the banking, insurance, and pharmaceutical industries and instead embracing more-cosmetic “reforms.”
The fact is that about $5 billion was spent in all the political campaigns from coast to coast in the elections of 2008, a bit less than $2 billion of that on the presidential race. Compare that with January 2010, when a small cadre of senior executives and employees of the nation’s top banks on Wall Street split up among themselves more than $145 billion in personal bonus money.
If those few thousand people had decided to take just 3 percent of their bonus and redirect it into a political campaign, no politician in America could stand against them. And now none do. And that’s just the banksters! Profits in the tens and hundreds of billions of dollars were reported in 2009 by the oil, pharmaceutical, insurance, agriculture, and retailing industries—all now considering how to use a small part of their profits to influence political races.
While WellPoint’s Anthem Blue Cross division was raising insurance rates in California by up to 36 percent, the company declared a quarterly profit of well over $2 billion. And the six largest oil companies were making more than $1 billion dollars in profits per week. Even the smallest coalition, funneling their money through the US Chamber of Commerce, now has the ability to promote or destroy any politician.
There are now no limits to what corporations (or rich individuals using a corporation as a front) can spend to influence elections or ballot measures. Every member of Congress will now know before he or she votes in favor of any legislation that is opposed by a particular industry, or votes against a bill that is favored by that industry, that it will have consequences come reelection time.
Anyone concerned with the integrity of the political system should note that this decision affects the legitimacy of elections not only of the legislative and executive branches but also of judges. As Bill Moyers and Michael Winship wrote in the Huffington Post in February 2010,4
Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election—that’s more than 80 percent of the state judges in America.
The Citizens United decision made those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.
Those inclined to underestimate the influence of cash on judicial elections should be reminded of some basic facts that Moyers and Winship provided:
During the 1990s, candidates for high court judgeships in states around the country and the parties that supported them raised $85 million … for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.
The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans. With the Supreme Court’s Citizens United decision, corporate money’s muscle got a big hypodermic needle full of steroids.
This decision was a naked handoff of raw political power to corporate forces by five unelected judges; and as we saw earlier, the other four members of the Court said so in the plainest and most blunt terms.
Indeed, the First Amendment now protects the “free speech” rights of the presidents of Russia and China and Iran to form corporations in the United States and pour millions of dollars toward supporting or defeating members of Congress or presidential aspirants who favor trade policies or a foreign policy that suits their interests.
This decision also protects the “right” of the largest polluting corporations on earth to politically destroy any politician who wants to give any more authority to the Environmental Protection Agency (EPA) or to elevate to elected status any politician who is willing to dismantle the EPA.
This Supreme Court decision has vested power in already-powerful corporations that they never had before: to directly affect the outcome of elections for public office and of ballot measures.
So what’s to be done?
Such a radical decision requires an equally radical response that must be both far-reaching and permanent.
Move to Amend
There are only three ways to undo a bad Supreme Court decision. All three have been used at various times.
The first is to wait until the composition of the Court changes—one or more of the bad judges retires or dies and is replaced by others more competent. (It’s worth noting that even former Justice Sandra Day O’Connor, a Ronald Reagan appointee and longtime Republican activist, condemned the Citizens United ruling.) Then the Court takes on a case that involves the same issues and, like with Brown v. Board of Education and Roe v. Wade, pushes the Court forward in time.
The second is for the American people, the president, and Congress to understand the horror of the consequences of such a decision and break with the Court.
Arguably, this happened with the Dred Scott v. Sanford decision in 1857, which ruled that black persons were actually property and thus led us directly into the Civil War. That Supreme Court decision led to Abraham Lincoln’s Emancipation Proclamation and the passage of legislation clarifying the rights of African Americans, although it ultimately took a war and the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to purge slavery from our laws and our Constitution.
Ironically, the Citizens United case is the mirror of Dred Scott in that it ruled that a property—a corporation—is now a person.
The third way to undo—or supersede—a Supreme Court decision is to amend the Constitution itself so that the Court can no longer play with the semantics of ambiguous or broadly worded language. We did this,
for example, to both institute and then repeal the prohibition, manufacture, and sale of alcohol.
The constitutional amendment route seems the most practical and long lasting, even though it may be the most challenging.
More than 29,000 amendments to our Constitution have been put forth in Congress since the founding of our republic, and only 27 have passed the hurdle of approval by two-thirds of the members of Congress and three-fourths of the states. Nonetheless, successful amendments are driven by a widespread sense that the change is absolutely essential for the good of the nation.
An example of this is the Twenty-Sixth Amendment to drop the voting age from 21 to 18. It was largely brought about by the rage and the impotence that young people felt in America during the Vietnam War era. The need for young people to participate in a political process that could lead them to war was so clear that the Twenty-Sixth Amendment passed the Senate in March 1971 and was completely ratified by the states on July 1, 1971.
As Americans see our politicians repeatedly being corrupted by corporate influence—from health care to banking to labor standards to the environment—and the middle class continues to collapse as a result, this may well be one of those moments in time when an amendment can make it through the Congress and the states in relatively short order.
The Thom Hartmann Reader Page 30
