January 21 marks the fifth anniversary of the Supreme Court issuing its opinion in Citizens United.
A half-decade later, the 5-4 decision has become an iconic symbol of the destructive role that money plays when it dominates our political system. Over 80% of Americans disagree with it. Justice Ruth Bader Ginsburg was asked in a recent interview to name the “worst decision” of the current Supreme Court. She answered that “if there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that’s number one on my list.”
But what exactly was the case about? And what did the Supreme Court decide?
Originally, the lawsuit centered on a so-called “documentary” titled "Hillary: The Movie." Its producer, a little-known corporation run by political operatives called “Citizens United,” wanted to broadcast Hillary via on-demand cable at the height of the contested 2008 presidential election. Cleverly, it also wanted to air commercials about its project which would themselves be nearly indistinguishable from campaign commercials attacking then-Senator Clinton. The Federal Election Commission found that "Hillary" was essentially a campaign commercial, which triggered long-standing campaign finance laws prohibiting corporate spending to influence elections. The trial court agreed.
Cue the Supreme Court. After oral argument in March 2009, it took the extraordinary step of ordering another round of oral argument to take place six months later. The Court even came back early from its summer recess to hear the case again in September.
Then came the decision on January 21, 2010.
Rather than decide the issue at hand – whether "Hillary" and its campaign commercials triggered the ban on corporate spending to influence elections – it took the radical step of striking down all laws that barred corporate entities (including nonprofit corporations and unions) from spending money to influence elections. The Court’s overreach – decided without any factual record at hand – was the largest of many steps by the Roberts Court to systematically dismantle our campaign finance laws.
The five justices in the majority ruled that corporations are entitled to the same First Amendment right as human beings to spend an unlimited amount of their general treasury funds influencing our elections “independent” of candidates. Overturning a century of law with the stroke of a pen, the majority held – without citing a shred of evidence – that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
It then held that “the appearance of influence or access furthermore will not cause the electorate to lose faith in our democracy.” In other words, money from corporations would not lead to corruption; elected officials would not be beholden to campaign spenders so long as it was “independent” of their campaigns; and people’s faith in representative democracy would not suffer.
Months later, a federal appeals court, in a case called SpeechNow.org, explicitly relied on Citizens United to hold that “contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. The [Supreme] Court has effectively held that there is no corrupting ‘quid’ for which a candidate might exchange for a corrupt ‘quo.’”
These decisions turn common sense on its head. To rule that a corporation’s spending on elections (the “quid”) is not intended for an exchange of favorable policy, access and influence (the “quo”) belies reality.
The breathtaking indifference of the Supreme Court to well-settled precedent (and facts) shook democracy to its core, and unleashed a torrent of secret money over our subsequent federal elections. Super PACs quickly opened for business, spending hundreds of millions of dollars, including money funneled through sham corporate front groups that exist for no other reason than to hide the identity of political spenders from the electorate. The decision’s only shaft of light is that eight of the nine justices agreed that requiring disclosure of the source of the money is constitutional – because voters need to know to whom their elected officials are beholden, and deserve to know who is “speaking” to them in campaign ads. I’ll close with some excerpts from Justice Stevens dissent. It speaks for itself – and for the overwhelming majority of citizens that agree.
“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.”
“The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.”
Next week, I’ll write about some of the policy solutions at hand that can mitigate some of Citizens United’s damage. Watch this space.
Office: Common Cause National
Issues: Money in Politics