Editorial Memorandum: Citizens United Ruling and Fair Elections

From: David Donnelly, Public Campaign and Arn Pearson, Common Cause

The Supreme Court Citizens United decision is judicial activism and arrogance at its worst.

This is a political coup by the High Court for the deepest political pockets in America, and without any factual record before them to support it. The Court declares outright – beyond overruling Austin and McConnell – that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy.

These are bald-faced, unsubstantiated claims that will change the ground rules of American democracy, starting today. Without a comprehensive response from Congress, elections will spiral into a fundraising arms race and war of negativism.

As Justice Stevens wrote in his dissent, “the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Stevens explained that corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” He lamented that the Court used “a sledgehammer rather than a scalpel” when it struck down “one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics.” Justice Stevens reasoned that the Court negated Congress’ efforts “without a shred of evidence.”

Congress must respond swiftly and forcefully to ensure Americans that corporations do not takeover the electoral process.

The Best Policy Option for Dealing with Citizens United

The only comprehensive option available to change the rules of the game in Washington, D.C. would be to embrace a small donor/public funding of elections model like the Fair Elections Now Act (S. 752, H.R.1826) that empowers grassroots campaigns and allows candidates to run highly competitive races without relying on wealthy special interests. The incentives in this model would be to vastly expand the donor base available to candidates, increasing their capacity to compete with outside money in a post-Citizens United environment.

The Fair Elections Now Act is sponsored in the Senate by Senator Dick Durbin (D-Ill.) and Reps. John Larson (D-Conn.) and Walter Jones (R-N.C.) in the House. The House legislation counts another 124 additional cosponsors.

More significantly, the fear of unlimited corporate political spending will fuel a rapidly escalating fundraising arms race. Elected officials will feel compelled to spend more and more of their time raising money, thereby further distracting Congress from the pressing issues of the day. In addition, this potential spend will create fear of political reprisal for unpopular votes, expand conflicts of interest, and further undermine the public’s confidence in government’s ability to act in the public interest.

This decision will make the Fair Elections Now Act more attractive to members of Congress. Without a strong citizen-funded system in place, candidates will be sentenced to a broken campaign finance system requiring that they rely on contributions from people with business before them. The path forward must be small donor democracy, not corporate democracy.