We share Lawrence Lessig’s view that the Supreme Court wrongly decided Citizens United v. FEC and that the Court should recognize that institutional corruption is as pernicious as quid pro quo corruption. Lessig’s description of the Court’s aggressive dismissal of legislative judgment about campaign finance laws as “First Amendment Lochnerism” is exactly right.
But the threat of the Citizens United ruling to our democracy goes far beyond the narrow definition of corruption. Here we have some disagreement with Lessig, who seems insufficiently worried about the expansion of First Amendment protection to “corporate speech” at the expense of the people’s speech. The ruling in Citizens United follows many over the past three decades that have used unprecedented notions of corporate speech in order to strike down state and federal legislation. Among these, Citizens United represents the most extreme extension of the First Amendment to corporate rights. A mistake of this magnitude can be corrected only by constitutional amendment, historically a useful tool for the protection of democracy.
Corporations today use the First Amendment in order to overcome reforms they dislike—reforms to environmental regulation, health care, consumer protections, civil rights, and campaign finance, to name a few areas of legislation. Ignoring common sense and the framers’ intent, entities created by law argue that they are “persons” with free-speech rights, thereby debasing the place of the First Amendment in American democracy.
Unfettered corporate speech (in reality, corporate spending) turns the free-speech clause of the First Amendment—intended to protect and encourage self-government by a diverse, freethinking people—into a threat to self-government by a free-thinking people. The domination of our political process by corporate money and resulting corporate power undermines self-government, and the Court essentially has stated that the Constitution provides the people no recourse against that power.
The resources available to large corporations are staggering, and, following Citizens United, there is nothing standing in the way of their influence. In 2008 alone the Fortune 100 companies’ combined profits exceeded $600 billion. In that election year, the congressional and presidential campaigns, political parties, and political action committees (including corporate PACs) spent approximately $5 billion. If the Fortune 100 companies had been able to spend just two percent of their profits that year, they would have more than doubled the total.
In addition to this possible opening of the floodgates, Citizens United has a psychological impact. As Lessig points out, any elected official who dares challenge a corporate interest must now face the potential of being targeted by a massive independent-expenditure campaign financed by corporate general-treasury funds. There need not even be explicit threat.
The threat of the Citizens United ruling to our democracy can be corrected only by constitutional amendment.
The consequences of the ruling go beyond federal elections. In Montana, for example, before Citizens United, the average state legislator’s campaign spent only $17,000 to win election. On March 8, 2010 two corporations, citing Citizens United, sued the State of Montana to strike down a 1912 law providing that “a corporation may not make a contribution or expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” If the suit is successful, Montana elections will become corporate contests, inaccessible to most people.
Citizens United also will impair the impartiality, real and perceived, of justice in the United States. Twenty-one states elect high-court justices, and 39 elect at least some appellate or major trial-court judges. Even before Citizens United, as former Justice Sandra Day O’Connor said, “in too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.” Now corporations will have even greater ability to bring their financial resources to bear on those elections, further undermining the independence of the state judiciaries.
We must begin the process of restoring the Constitution and fair elections to the people. While there are many calling for legislative fixes—including public funding of elections, which we support—we must face the reality that only a constitutional amendment will enable us to reclaim free-speech rights for people, not corporations. House Joint Resolution 74, introduced by Representatives Donna Edwards and John Conyers, Jr., would amend the Constitution to make clear that Congress and the states have the power to regulate corporate spending in the political sphere. The amendment has 23 co-sponsors in the House. Another amendment would prevent corporate misuse of the First Amendment to block laws enacted to advance the public interest.
Some might see an amendment as unachievable, but in fact the American people have amended the Constitution 27 times. Beginning in the post–1910 Progressive era, we have ratified amendments in every decade of the twentieth century, except the 1940s and the 1980s. Most of the seventeen amendments adopted since the original ten (the Bill of Rights) have corrected what Americans understood as obstacles to the right of all people to participate in self-government on equal terms. Among other things, these amendments ended slavery; guaranteed liberty, due process, and equal protection for all; guaranteed the right to vote regardless of race; empowered the people to elect senators, who previously were appointed by state legislatures; guaranteed the right of women to vote; eliminated the poll tax, previously used to block poor people, often African Americans, from voting; and established a standard voting age.
Amendment skeptics might consider the example of Doris “Granny D” Haddock, who recently passed away following her one-hundredth birthday. At the age of 89, she started a walk across the country to call for an overhaul of our campaign-finance system. Fourteen months and 3,200 miles later, she arrived in Washington, D.C. Her action inspired people around the world and placed a spotlight on the corrupting influence of money in politics and the critical need for reform. When Haddock was born, the Nineteenth Amendment—which guaranteed women the right to vote—had yet to be enacted.
A constitutional amendment is not only possible, but necessary. In the wake of Citizens United, it is time to pass and ratify a 28th Amendment, to overturn the ruling and to guarantee that we the people, not we the corporations, govern in the United States.