Demonstrators assembled outside the Wisconsin State Capitol in Madison on February 16 to urge action against the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission, which recently struck down restrictions on the corporate financing of political advertisements. Wisconsin Public Radio reported that the rally participants made speeches and rang “liberty bells,” hoping to draw attention to their issue and gather support for a constitutional amendment to overturn the court’s decision.
|Anthony Kennedy||Ronald Reagan (R)|
|John G. Roberts||George W. Bush (R)|
|Antonin Scalia||Ronald Reagan (R)|
|Samuel Alito||George W. Bush (R)|
|Clarence Thomas*||George H.W. Bush (R)|
|*Thomas concurred with the majority’s primary opinion but dissented on another section.|
The Supreme Court’s ruling, announced on January 21, marks a major change in the rules of electoral politics in America. It makes it possible for private corporations — whether for-profit companies, non-profit organizations, or unions — to use their money to air political advertisements in favor of or against specific candidates in the days before an election. This kind of direct corporate involvement in politics had previously been illegal, banned by legislation going back to the Tillman Act of 1907 and including most recently the Bipartisan Campaign Reform Act of 2002, sponsored by Republican Senator John McCain of Arizona and Democratic Senator Russ Feingold of Wisconsin. Their bill passed 59-41 in the Senate, but part of the act has now been voided by the 5 to 4 Supreme Court decision.
Justice Anthony Kennedy spoke for the court’s majority by arguing that any law restricting corporations from airing political advertisements was an infringement on the freedom of speech guaranteed by the First Amendment to the U.S. Constitution. Kennedy wrote:
By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. … We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.
|John P. Stevens||Gerald Ford (R)|
|Ruth Bader Ginsburg||Bill Clinton (D)|
|Stephen Breyer||Bill Clinton (D)|
|Sonia Sotomayer||Barack Obama (D)|
Meanwhile, dissenting Justice John Paul Stevens disagreed with the premise that a corporation constituted a “disadvantaged person.” Speaking for the court’s minority, he wrote:
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. … It might also 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.
Madison’s demonstrators agreed with those words. Some carried signs with slogans like “Abolish Corporate Personhood” and “Overrule the Court!” I applaud their position. Corporations are not humans. They exist only on paper as tools created by people to achieve some goal. The individual rights of the people involved in corporations — shareholders, directors and employees — were never in question. They have always held the right to speak as individual citizens. The Supreme Court’s ruling, as I see it, now gives corporate executives twice the rights that other people hold: their own unalienable right to speak as individuals, plus the right to speak through the corporations they control using those corporations’ money and power. Corporations hold immense concentrations of wealth, and because they are often structured simply to generate more, their interests are self-serving. Wealthy multinational corporations can easily outspend real individuals in a race to promote their profit-driven political agendas. Far from enhancing free speech, the court’s ruling will help powerful corporations drown out the voices of actual people with real human needs.
The Supreme Court’s ruling cannot easily be reversed. Although the McCain-Feingold campaign finance reform act passed in 2002 with a measure of bipartisan support, today’s Congress may be too deeply divided to act on the issue. Senator Russ Feingold issued an official statement calling the court’s decision a “terrible mistake,” and he pledged to work towards legislation to limit the impact of the ruling. Other Democrats have expressed similar sentiments. Republican Senator John McCain announced that he was “disappointed by the decision,” but he made no commitment to pass new legislation on the issue. Many Republicans actually praised the court, including Senate Minority Leader Mitch McConnell, who said: “For too long, some in this country have been deprived of full participation in the political process. With today’s monumental decision, the Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups.”
Even if Congress could muster the support to pass new laws to regulate campaign finance, it can do no more than discourage corporate involvement with new rules. Any full ban, according to the Supreme Court, would be a violation of the U.S. Constitution. As a result, only a change to the U.S. Constitution could completely overturn the decision. This has led activists like those in Madison to call for a constitutional amendment declaring that the protections of the Bill of Rights apply only to natural human beings, and not corporations.
Constitutional amendments are not easy to enact. They must be initiated by either a two-thirds majority in both houses of Congress or a by a constitutional convention called by two-thirds of the states. In either case, any amendment must then be ratified by three-fourths of the states. This can take a tremendous amount of time, organization and effort. An amendment granting women the right to vote was first introduced in Congress in 1868, but it was not ratified as the Nineteenth Amendment until 1919. The Twenty-Seventh Amendment was proposed in 1789 but only ratified in 1992. Nevertheless, it is clear that amendments have succeeded when vital issues of American democracy were at stake. Perhaps that is the case again today.
The demonstrators who gathered this week in Madison clearly hope to overturn the Supreme Court’s decision on corporate election financing. Their rally — coordinated by MoveToAmend.org — was an important first step in the long, hard process of achieving a new constitutional amendment. Much more work will be needed to make such an amendment reality. What is your opinion of the ruling in Citizens United v. F.E.C.? Would you support a constitutional amendment to keep corporations out of political campaigns?