Kimberly Emerson

In January of 2010, the Supreme Court decided (in a 5-4 ruling, falling along ideological lines leading directly back to their presidential appointers) that limits couldn’t be set on corporate campaign contributions.  The case was known as Citizens United vs. Federal Election Commission.  You may agree with the decision, you may disagree with every fiber of your being, but the chances are good you’ve heard of the Citizens United verdict.

If you’ve spent the last two years under a rock and managed to miss the whole deal, now would be a good time to retreat back into your subterranean hideout.  According to an article on Upi.com, the Supreme Court recently announced that it will take up the issue again.  It agreed to review a recent case out of Montana concerning corporate spending, and parallels seem unavoidable.

Not familiar with the Citizens United case?  Allow me to help.  A little history may be useful.  A conservative nonprofit corporation calling itself Citizens United released a film called Hillary.  The film was critical of Ms. Clinton, and was destined for on-demand video in January of 2008.  (According to the Washington Post, they made the film in response to Michael Moore’s Fahrenheit 9/11: A Movement in Time.  Citizens United, Inc. had tried unsuccessfully to get distribution of Mr. Moore’s film blocked as a violation of the laws of the Bipartisan Campaign Reform Act.)  According to the syllabus from the Supreme Court on the Citizens United case:

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election,§434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2),which in “the case of a candidate for nomination for President . . . means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days,” §100.29(b)(3)(ii).  – Supreme Court syllabus, Citizens United vs. FEC

As best I understand it, this translates to: “don’t use the corporation or union’s money to make ads backing or opposing anyone up for election within thirty days.”  (Anybody more fluent in legalese than I is welcome to straighten me out on any deviations from accuracy.)  The group Citizens United knew that their video might very well be considered an “electioneering communication,” and sought to avoid punishment, stating that this regulation abridged their right to free speech.

And thus began the debacle.

Many liberals (and not a few conservatives, from what I understand) felt this was a huge error on the part of the United States Supreme Court.  According to one fascinating poll I found on surveyusa.com, over 75% of Americans believe corporate spending should be subject to limits.  (Incidentally, the percentage of identified Republicans who agreed was higher than that of Democrats, and Independents beat them both.)

I’ve heard many people say this was a mistake, a gift to Corporate America from the Republican-appointed majority currently occupying the United States Supreme Court.  In fact, the only voices I’ve heard to the contrary are Mitt Romney in a stump speech in Iowa (see the clip below), and Kent Greenfield, a reporter from the Washington Post.  (Even Mr. Greenfield seems only to say the decision wasn’t quite as bad as we’ve been led to believe.)  Mr. Romney’s spirited defense is my favorite – he says of course corporations are people, all the profits they make eventually go into a human pocket somewhere.

I don’t pretend to know the law as well as the Supreme Court justices do.  It may be that by the laws we currently have, their decision was completely correct.  Others who have studied the law seem to disagree.  (I’m not sure how trustworthy all of the comments at the bottom of Mr. Greenfield’s column are, but without a doubt they comprise the most erudite exchange of ideas I’ve seen following a column on the internet.  Of course, I choose to believe that the person who misspelled “professor” did so on purpose.)  In particular, four of the Supreme Court justices felt the matter should have been decided differently.  (Justice Stevens wrote a lengthy dissenting opinion.)

But let’s say the decision was correct, and that the Constitution was not referring just to people when it discussed freedom of speech.  After all, the first amendment says only that Congress shall make no law abridging the freedom of speech, right?  It doesn’t specify the speech of who or what.  Shouldn’t corporations be allowed to exercise their right to speak financially for whichever candidate they choose?

In a word, no.

Interestingly, as Mr. Greenfield tries to allay our fears about the Citizens United verdict in his article, he highlights my very reason for annoyance with it.  He says the problem isn’t with giving corporations the right to speak, it’s with the lack of democracy within the corporations.  Make the corporations more democratic, he says, and the problem goes away.

Interesting point, Mr. Greenfield.  How exactly do you propose we make that happen?  Now that you’ve allowed the corporation to speak, it will most assuredly defend its existence as it understands it.  Who makes decisions for the corporations?  Those folks who are profiting the most from them – the ones at the top.  They  have the power of the entity at their disposal.  Why in the world would they use that mega-voice to advocate for the people they have chosen to slight?

It would appear to me that trying to legislate the democratization of corporations – to change the way corporations are run from the outside in – would be a thousand times harder than trying to regulate campaign contributions.

Corporations are not people for the simple reason that not all the people involved have to agree on what they do.  When you have control of an entity, you are speaking for all the people involved in it, and the odds are slim that you are accurately representing their views.  It may be that the Citizens United verdict does not actually overturn every campaign finance law, and that it does not actually assign corporations personhood, but it certainly presents a good facsimile. Since it was announced, the campaign taps have been flowing with corporate contributions, and there seems slim chance that the deluge will let up anytime soon.

I hope that this revisiting of the decision allows the Supreme Court to make a wiser decision.  Actually, I hope they decide to end corporate political contributions altogether.  Mr. Romney stressed in the youtube clip cited earlier that corporations are made up of people, and that all their profits eventually end up with people.  Following that logic, all those people have their own personal bank accounts and can make political contributions themselves, without involving the company at all.  It wouldn’t come close to leveling the political playing field, but it might just be a start.

I hope…but I’m not going to hold my breath.  That corporate influence has been known to reach all kinds of places.  Even courtrooms.

Kimberly can try to clean up politics.  She can also try to brush her cat’s teeth.  In both cases, she’s probably going to get bitten.

Tags: Bipartisan Campaign Reform Act, Citizens United, corporate personhood, corporations are people, Hillary Clinton, Kent Greenfield, Michael Moore, Mitt Romney, Montana, Supreme Court, Washington Post