Democrats in Congress are fighting to undo, or at least mitigate, the potential damage wrought by the Supreme Court in its Citizens United decision, an example of right-wing judicial activism that has the potential to put the final nail in the coffin of American self-governance and turn over our elections to multinational corporations.
Speaking at last week’s Netroots Nation conference, a gathering of liberal activists, Rep. Alan Grayson, D-Florida, put the threat posed by Citizens United in simple-to-understand terms. “We’re now in a situation,” he told the crowd, “where a lobbyist can walk into my office…and say, ‘I’ve got five million dollars to spend, and I can spend it for you or against you. Which do you prefer?’” That’s power.
The Citizens United ruling overturned key provisions of the McCain-Feingold campaign finance law, rules that kept corporations -- and their lobbyists and front groups (as well as labor unions) --- from spending unlimited amounts of cash on campaign advertising within 60 days of a general election for federal office (or 30 days before a primary). To get there, the court’s conservative majority stretched the Orwellian legal concept known as “corporate personhood” to the limit, and gave faceless multinationals expansive rights to influence our elections under the auspices of the First Amendment.
“They wanted to hear the possibility that that’s the way the constitution would read to them,” said Grayson. “So they picked an issue out of the air that nobody had conceived of [as a First Amendment case] because 100 years of settled law meant that corporations cannot buy elections in America, and they not only allowed corporations to buy those elections, but they made it a constitutional right.” He called the decision “a tragedy for us all,” as “corporations now have rights that human beings can never have.”
It's hard to overstate the ruling’s potential to undermine American democracy. Robert Weisman, president of the watchdog group Public Citizen, offered “a reality check” for the court, and anyone else who agrees with its majority’s belief that unlimited corporate money for independent ad buys won’t corrupt our political class. “$5.2 billion [was] spent in the 2007-2008 election cycle by all federal candidates, including candidate Obama,” Weisman said. “Exxon in that same period made $85 billion in profit; Pfizer made $27 billion selling just Lipitor alone. Last year, Goldman Sachs spent $16.5 billion on executive compensation. So if they choose to, corporations can completely overwhelm the political process, and they’re going to choose to do it more and more.”
And when corporations do get into the game in force, voters won’t know who’s picking up the tab for the flood of campaign ads. The money won’t come directly from Exxon or BP or Goldman Sachs, it’ll be filtered through the Chamber of Commerce and other corporate front groups with benign-sounding names like the Center for Consumer Freedom, Citizens for a Sound Economy or the American Council on Science and Health.
Now members of Congress are fighting to push back against the ruling on a number of fronts. Grayson has introduced a flurry of legislation, including the Business Should Mind Its Own Business Act (HR 4431), which would impose a hefty tax on corporate campaign contributions in federal races; the Corporate Propaganda Sunshine Act (HR 4432), which requires financial firms to disclose any contributions to federal candidates that exceed $1,000, and the End the Hijacking of Shareholder Funds Act (HR 4487), which requires shareholders to vote on any corporate expenditures that are meant to influence public opinion about anything other than their products and services.
The DISCLOSE Act (HR 5175), sponsored by Chris Van Hollen, D-Maryland, passed the House last month, but was killed by a unified GOP this week. DISCLOSE would have “required organizations involved in political campaigning to disclose the identity of the large donors, and to reveal their identities in any political ads they fund. It would also bar foreign corporations, government contractors and TARP recipients from making political expenditures.” After the vote, Sen. Chuck Schumer, D-New York, said, “This is a sad day for our democracy. Not only does the Supreme Court give those special interests a huge advantage, but [now the Senate] says they should do it all in secret without any disclosure. That … eats at the very fabric of our democracy. It makes our people feel powerless and angry."
Because the Supreme Court has made campaign issue advertising a constitutional right for corporations, these efforts, while laudable, can only work at the margins. Rep. Donna Edwards, D-Maryland, has taken a much bolder approach, offering a constitutional amendment that would grant Congress the explicit power to regulate expenditures for “political speech by any corporation, limited liability company, or other corporate entity.”
The Citizens United decision, said Edwards, “is another reminder that the Court has gotten it wrong, the Congress has gotten it wrong and that we need to do something serious to restore fairness in our elections, and one of the ways that we do that is setting the balance right in terms of our constitutional protection of real people, and not just of corporate interests and corporate money.”
Edwards’ amendment has attracted 24 co-sponsors to date, but her bill isn’t the only one. Congressmen Paul Hodes of New Hampshire (HJ Res 82) and Leonard Boswell of Illinois (HJ Res 68) have introduced variations in the House, and on Tuesday Max Baucus, D-Montana, one of the most conservative Dems in the upper chamber, joined Chris Dodd, D-Connecticut, and Tom Udall, D-New Mexico, in introducing similar amendments in the Senate. (Here is a summary of the differences between the various amendments.)
It’s an uphill climb -- amending the U.S. Constitution requires a two-thirds majority in both chambers of Congress, and then must be ratified by 38 state legislatures. It’s been done only 27 times in the history of the Republic. And with both chambers of Congress in the hands of what David Sirota terms “the Money Party,” skeptics rightly point out that passing it would be a steep uphill climb.
Yet the Right has long used unlikely constitutional amendments to raise awareness of an issue and rally the Republican base (think: flag-burning). And even a losing effort to amend the constitution can have a significant impact on the political scene. “If we don’t seize it as an opportunity because it’s so discouraging, they win,” said Lisa Graves, executive director of the Center for Media and Democracy. Graves added that losing efforts like the proposed Victim’s Rights Amendment had nevertheless had a profound effect on the law. “A constitutional amendment is a powerful organizing tool,” she said, “and we must embrace it … we need to learn that we can win when we lose.”
Not surprisingly, there’s plenty of support for Citizens United on the Right. This week, the Tea Party Patriots -- the well-heeled corporate lobby group that pulls the strings of much of the “grassroots movement” -- sent its rubes an “urgent alert” about the DISCLOSE Act, which it called an “effort to silence us before the elections.” They described it as being “tantamount to a witch-hunt.”
Ultimately, it will require a massive grassroots effort to overcome that narrative -- and a hopelessly deadlocked Congress -- to get either a constitutional amendment overturning Citizens United or a legislative fix to lessen its harm enacted into law.
It appears to be taking shape. A coalition of progressive groups has created a petition calling on lawmakers to push back against the Supreme Court’s activism (which you can sign here), and People for the American Way and Public Citizen have launched a campaign to get active citizens to urge lawmakers and candidates for Congress to pledge that they’ll vote with the American people on the issue if they get the chance. (You can find out more about that effort here.)
American democracy has taken a beating, but it’s still possible to save it. It certainly won’t be an easy task in this climate, but promoting and maintaining a robust democracy has never been easy.