Defend Our Democracy: Amend the Constitution

In Citizens United v. Fed. Election Comm’n, the United States Supreme Court considered whether federal campaign finance laws apply to a film critical of Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers. On January 21, 2010, the Court held that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment. This 5-4 decision written by Justice Kennedy and joined by Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas struck down a provision in the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain–Feingold Act, that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications,” which was defined by the Act as any broadcast, cable, or satellite communication that mentioned a candidate, within 60 days of a general election or thirty days of a primary. In the majority opinion, Justice Kennedy wrote that if “the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” This reasoning extended First Amendment rights to corporations, viewed as associations of citizens, with Justice Kennedy finding no way to distinguish between media and other corporations to avoid restriction of First Amendment rights. Although this decision now allows the broadcasting of these corporate “electioneering communications,” the Court did uphold requirements for disclaimer and disclosure by sponsors of advertisements.

DEFEND OUR DEMOCRACY: AMEND THE CONSTITUTION

By John Bonifaz

Our democracy is in crisis. On January 21, 2010, the United States Supreme Court swept away longstanding precedent that had barred corporate spending in our elections. The ruling, issued in Citizens United v. Fed. Election Comm’n, means that corporations may now spend their billions of dollars in general treasury funds to advocate for or against candidates at the federal, state, and local level. While our campaign finance system was in need of fundamental reform prior to this ruling, we are now faced with such a direct and serious threat to our democracy that it requires a constitutional amendment response.

To best understand this threat, we need only look at the resources now available to the nation’s top Fortune 100 companies to influence our election outcomes. In 2008 alone, the Fortune 100 companies’ combined profits exceeded $600 billion. In that election year, the total amount of money spent by all of the congressional and presidential campaigns, the political parties, and the political action committees (including corporate PACs) was approximately $5 billion. If the Fortune 100 companies had been able to spend just two percent of their profits that year, they would have more than doubled the total amount of funds expended throughout the country by all the campaigns, parties, and PACs.

And then there is the psychological impact of this ruling. Any elected official who dares to challenge a corporate interest must now face the potential of being targeted by a massive independent expenditure campaign financed by corporate general treasury funds. Without even an actual threat from a corporation, our politics, as a result of this ruling, will favor corporate interests over the public interest to a far greater extent than existed when the ban on corporate spending in our elections remained in place.

But the roots of this crisis go beyond this one Supreme Court ruling. For the past three decades, corporate America has misused the First Amendment to advance a corporate rights doctrine so as to strike down democratically-enacted reforms in multiple areas, including the environmental, health care, consumer rights, civil rights, and campaign finance fields. By arguing that corporations are “persons” with free speech rights – an argument that ignores common sense as well as the Framers’ intent, corporate interests have effectively captured the First Amendment for their own profit-making purposes. The Citizens United ruling marks an extreme extension of this corporate rights movement under the First Amendment.

The notion that free speech under the First Amendment is intended for corporations as well as individual human beings is antithetical to what the Framers believed. James Madison saw corporations as “a necessary evil” subject to “proper limitations and guards.” Thomas Jefferson hoped to “crush in its birth the aristocracy of moneyed corporations…” For the first 200 years of our nation’s history, our courts never treated corporations as persons with free speech rights under the First Amendment.

In the wake of the Citizens United ruling, we must begin the process of restoring the First Amendment and fair elections to the people. While there are many calling for legislative fixes in response to this ruling, we must face the reality that only a constitutional amendment will enable us to reclaim free speech rights for people, not corporations. House Joint Resolution 74, introduced by Representative Donna Edwards (D-MD) and House Judiciary Committee Chair John Conyers, Jr. (D-MI), would amend the US Constitution to make clear that Congress and the states shall have the power to regulate corporate spending in the political sphere. The amendment already has 24 co-sponsors in the US House of Representatives (including Representatives Edward Markey and James McGovern of Massachusetts). Other important amendment approaches would prevent corporate misuse of the First Amendment to block public welfare laws.

There are those who doubt that we can amend the Constitution. But consider the example of Doris “Granny D” Haddock. On March 9, 2010, she passed away at the age of 100. When she was 89 years old, she started a walk across the country to call for an overhaul of our campaign finance system. Fourteen months and 3,200 miles later, she arrived in Washington, DC. Her action inspired people around the world and placed a spotlight on the corruption of money in politics and the critical need for reform.

When Doris Haddock was born, the Nineteenth Amendment to the US Constitution – guaranteeing women the right to vote – had yet to be enacted. In her lifetime, she saw nine different amendments enacted into the Constitution. She is a powerful example that fundamental change, including a constitutional amendment, can happen.

We have amended the Constitution before in our nation’s history. Twenty-seven times. It is now time to pass and ratify a 28th Amendment which guarantees that we the people, not we the corporations, govern in America.

John Bonifaz is the Legal Director of Voter Action and the Director of the Free Speech For People Campaign (www.freespeechforpeople.org), a new campaign which seeks to restore free speech and fair elections to the people.