Editorial 12.2, February 2010, by Deirdre Helfferich Personable Elections The recent ruling by the US Supreme Court in the case of Citizens United v. Federal Election Commission(1) has sparked a hurricane-force backlash in American politics. The Campaign to Legalize Democracy has launched Move To Amend, gathering signatures to amend the US Constitution:
Other groups, such as Ultimate Civics, Reclaim Democracy, the Election Defense Alliance, and the Center for Media and Democracy, are joining in this effort. Some want to clarify that money is not speech, or guarantee the right to vote (which US citizens do not actually have), but all agree that it is essential that corporate entities must not be legally viewed as people, nor should they have the rights of real persons. And lest you think that this is split—like most of our modern-day politics—into a conservative vs. liberal, Republican vs. Democrat issue, take a look at the poll conducted by ABC News and the Washington Post: 80 percent overall of those polled opposed it, 65 percent strongly opposing. In terms of party affiliation, 85 percent of Democrats opposed the ruling, 81 percent of independents, and 76 percent of Republicans.(3) States are also responding to the Supreme Court decision. In Alaska, this is taking the form of HB 538, which modifies Alaska statute 15.13.010 (on campaign contributions) in several ways, not least of which is to remove references to “groups or nongroup entities” and replace them with the term “persons.” In a companion bill, HB 539, for-profit corporations and limited liability companies are clearly defined as not being legally considered “persons for purposes of influencing the outcomes of public office elections, initiatives, referendums, or recalls.” (4) The American Civil Liberties Union, however, agrees with the decision in Citizens United:
I am a member of the Alaska Civil Liberties Union, but I most certainly disagree with this view. The ACLU’s position sidesteps an important issue: corporations are not just groups of people getting together to express a particular opinion, engaging in civic life. They are fictions, legal machines designed only to make money. They do not have viewpoints, or convictions, or morals. They have only an economic drive—and a short-term one at that. As Jim Sleeper wrote in the Boston Globe,
The problem with restricting political speech is that then government becomes a censor, and thus speech is no longer free. The free exchange of ideas is vital to maintaining a functioning democracy. Campaign donations, direct or indirect, and thus cold cash, are held to be the equivalent of political speech—a dubious position. However, the ruling in this case essentially declared that corporations have free speech rights in the same way that human beings do. Thus, they can donate as they wish. Justice Scalia wrote for the majority opinion:
Scalia seems to have forgotten that “the modern free economy” is not the same thing as the modern free democracy. (I also think that corporations are not actually the “principal agents” of a free economy, but that’s another editorial.) The employees and shareholders of corporations rarely have a choice about for what or whom those donations go. Corporate speech is not the same thing as free speech by individuals or even groups of like-minded individuals, and may in fact work against actual human beings’ freedom of speech—and other freedoms and rights. Justice John Paul Stevens wrote in his dissent:
Justice Stevens examines the majority’s “proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity’ as a corporation.” Scalia and the majority hold that the First Amendment is only about the speech, not the speakers. Thus the identity of the speaker, in this case a corporation, is unimportant: political speech (money, or the movie Hillary that Citizens United produced and wished to air free to the public during the period before the 2008 presidential primary election) may not be restricted. To this Justice Stevens tartly rejoins, “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Justice Stevens also observes, “A system that effectively forces corporations to use their shareholders’ money both to maintain access to, and to avoid retribution from, elected officials may ultimately prove more harmful than beneficial to many corporations. It can impose a kind of implicit tax.” And corporations typically support more than one party, more than one party’s candidate. They hedge their bets. That’s not support of a particular point of view, that’s protecting access to political decision-making—in sums that your average citizen cannot hope to match. In his discussion of the distortions of law that will be caused by the ruling Justice Stevens points out that, in fact, political parties are weakened by this decision:
Right now all the co-sponsors of the Alaska bills are Democrats, but corporations don’t give a fig about party principles or platforms. It would behoove the Republicans in the Alaska legislature to remember that, and to sign on as co-sponsors of HB 538, HB 539, SB 284, and SB 285. It’ll bite us all in the face at the next election if they don’t. 1. See Opinion of the Supreme Court of the United States, No. 08-205, Citizens United v. Federal Election Commission. A copy of the decision is on file (under ‘U’ in nonfiction) at the John Trigg Ester Library. (The opinions make for lively reading, particularly the dissent by Justice Stevens. Believe me, there’s some firey language in there.) The opinion is also available as a PDF, along with the full documents relating to the case, at the SCOTUSblog wiki at: http://scotuswiki.com/index.php?title=Citizens_United_v._Federal_Election_Commission 2. www.movetoamend.org 3. “Poll: Large majority opposes Supreme Court’s decision on campaign financing,” by Dan Eggen, Washington Post, February 17, 2010. Available on line at: www.washingtonpost.com/wp-dyn/content/article/2010/02/17/AR2010021701151.html. See the poll data at www.washingtonpost.com/wp-srv/politics/polls/postpoll_021010.html?sid=ST2010021702073. 4. Co-sponsors as of this writing are: (HB 538) Representatives Kawasaki, Gara, Tuck, Gardner, Guttenberg, Crawford, Buch, Gruenberg, and Petersen; (HB 539) Representatives Gara, Gardner, Kawasaki, Kerttula, Petersen, and Tuck. Both HB 358 and HB 359 have been referred to the State Affairs and Judiciary committees. Their equivalents in the Alaska Senate are SB 284, sponsored by the Senate Judiciary Committee and SB 285, sponsored by Senator Hollis French. Both have been referred to the State Affairs and Judiciary committees. To view the text of these bills, go to www.legis.state.ak.us/basis/get_multibill.asp?session=26&subject=CORPORATIONS. 5. American Civil Liberties Union, www.aclu.org/free-speech/citizens-united-v-federal-election-commission. 6. “Corporate free speech? Since when?” by Jim Sleeper, Boston Globe, September 5, 2009, available on line at: www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/09/05/corporate_ free_speech_since_when/ | ||
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