A Call to Bold Action
This article is part of Democracy After Citizens United, a forum on the Supreme Court’s decision to strike down McCain-Feingold and what it means for our democracy.
Throughout our nation’s history, we have faced critical moments at which we have had to respond to an egregious Supreme Court ruling with a constitutional amendment. The Court’s ruling in Citizens United v. FEC is one of those moments.
The Citizens United ruling dramatically changed the landscape of our elections and our democracy. By overturning a century of legal precedent and equating corporations with people—with free-speech rights to spend unlimited corporate-treasury money in our elections—the Court has created a direct threat to our democracy.
We now confront a political reality in which any elected official, at the federal or state levels, who makes a decision deemed unfavorable by a corporation or industry is under financial threat. These business entities can flood money into elections in amounts unmatched in American history. No longer are the voices and needs of the American people a top priority. Instead they will be drowned out completely by this corporate takeover. There is no doubt we had a broken system before the Court’s decision, but this ruling alters our principles fundamentally and endangers the basic structure of competitive elections.
I agree with Lawrence Lessig that we must enact public funding of elections to address the corrupting influence of money in politics. I am a longtime proponent of that reform and a co-sponsor of the Fair Elections Now Act, sponsored by my colleagues Representatives John Larson and Chellie Pingree, pending in both houses of Congress. Yet even the voluntary public-funding system advanced by the Fair Elections Now Act is threatened by this ruling. With its enactment, we would still have to address the effect of the Citizens United ruling: corporations may undermine any public-funding system with unlimited independent expenditures targeting publicly funded candidates.
Citizens United will go down in history as one of the Supreme Court’s worst decisions–the Dred Scott of our time.
That is why a constitutional amendment is critical to a functioning public-funding system.
If we are to have any hope of protecting our democratic process, the Constitution must reflect the fact that corporations are not people. They are artificial entities created by the state. They do not breathe. They do not think. They do not have a conscience. In fact they have state-granted advantages that you and I do not have—limited liability and even perpetual life. And yet with this ruling, corporations are able, literally, to buy our elections.
The framers never intended for corporations to be treated like people with free-speech rights under the First Amendment. James Madison referred to corporations as “a necessary evil” subject to “proper limitations and guards.” Thomas Jefferson hoped to “crush in its birth the aristocracy of our moneyed corporations.” For the first 200 years of our nation’s history, the courts followed the framers and never assigned corporations free-speech rights. In his dissent in Citizens United, then-Supreme Court Justice John Paul Stevens wrote:
The Framers . . . took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.
Stevens is right; we cannot allow the Citizens United decision to stand. If the Supreme Court continues to believe that Congress does not have the authority to regulate what corporations can do in our electoral system, then the American people will always be backed up against a wall. Within days after the Court’s ruling, I introduced—with Congressman John Conyers, Jr., Chair of the House Judiciary Committee—House Joint Resolution 74, a constitutional amendment to overturn Citizens United. The amendment would make clear that “Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.” It also would make clear that nothing in the amendment “shall be construed to abridge the freedom of the press.” Our amendment already has 23 co-sponsors.
And the public is with us. A recent poll by People for the American Way found that more than three in four voters, regardless of political persuasion, support a constitutional amendment to allow regulation of corporate funding of political speech. A coalition of public-interest organizations has launched a campaign at freespeechforpeople.org, where tens of thousands of supporters from across the country are coordinating efforts on behalf of an amendment.
We must not be afraid to take bold action. Those who came before us were not afraid. Without their courage, we would not have enacted constitutional amendments that have expanded and protected our democracy—from abolishing slavery and guaranteeing African-Americans and women the right to vote, to removing the poll-tax barrier. The framers placed the amendment process in the Constitution in order to ensure that a government of, by, and for the people would be preserved. We must use that process again in order to safeguard our democracy.
The Citizens United ruling will go down in history as one of the Supreme Court’s worst decisions—the Dred Scott of our time. Yet I am confident that history also will show that the people understood the threat of this decision and responded with a constitutional amendment to overturn it.
Comments
Tweet
About the Author
Donna F. Edwards represents Maryland's Fourth District in the U.S. House of Representatives.
Related Articles
Democracy After Citizens United, a forum with Lawrence Lessig on the Supreme Court’s decision to strike down McCain-Feingold and what it means for our democracy.
Heather Gerken and others, Six Ways to Reform Democracy
David Donnelly, Janice Fine, and Ellen S. Miller, Going Public: New Directions for Campaign Finance Reform
Keep in touch with Boston Review
However, is there a chance that all this is further inflaming a decision that may not radically change the way campaigns are funded at all? Is there a chance that all this fuss is over relatively little? Nathaniel Persily made the point in a recent article by Adam Liptak for Columbia Law School Magazine that the floodgates to corporate spending were already open. Also, half the states had allowed corporate spending of the sort determined by Citizens United, but political scientists weren't able to determine differences in corporate influence between the two sets of states. That's to say all the hubbub over corporate influence is moot to some degree. Perhaps lobbying, instead of corporate spending, is the more insidious villain to be watched.
Liptak's article is here: http://bit.ly/bJyzRi