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The Problem With Citizens United Is Not Corporate Personhood

Tuesday, 17 January 2012 03:25 By James Marc Leas and Rob Hager, Truthout | News Analysis

Vermont Sen. Bernie Sanders and Florida Rep. Ted Deutch introduced a constitutional amendment in December to overturn Citizens United, one of five decisions since 2006 by which a closely divided Supreme Court vastly increased the amount of corrupting corporate money in elections.

In an opinion piece critical of the decision in Citizens United, Senator Sanders wrote:

When the Supreme Court says that for purposes of the First Amendment, corporations are people, that writing checks from the company's bank account is constitutionally-protected speech and that attempts by the federal government and states to impose reasonable restrictions on campaign ads are unconstitutional, when that occurs, our democracy is in grave danger.

The joint Sanders-Deutch Resolution proposes an amendment to the constitution "to expressly exclude for-profit corporations from the rights given to natural persons." The first section of the amendment states:

The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

While Senator Sanders and Representative Deutch correctly characterize the danger to democracy and the need for strong action in response, a close reading of Citizens United shows that constitutional rights of corporations played no role whatsoever in the Citizens United decision.

The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections. This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections, or could prevent the pro-corporate majority on the Supreme Court from making further decisions corrupting elections.

Fortunately, the inordinate influence of private money in elections can be fixed, and the fix is far easier to accomplish - and more certain of success if accomplished - than any kind of constitutional amendment, as described in "Constitutional Amendment Not Needed: Congress Already Has a Remedy." 

As to corporate rights, what is true is that the legal fiction of corporate personhood was created to apply the 14th Amendment for protecting corporations from certain state regulations and taxes during the first Gilded Age (1870-1900). The 14th Amendment prevents any state from depriving "any person" of property without due process of law or denying "any person" equal protection of the laws.

Under both mass public pressure and pressure from the Roosevelt administration, by 1938 the court generally stopped striking down laws regarding economic regulation on any grounds, and began to elevate protection of personal liberties over property rights. As described in an article about the rise and fall of the corporate personhood doctrine by Carl J. Mayer,  "Personalizing the Impersonal: Corporations and the Bill of Rights," 41 Hastings Law Journal 577 (1990), the Supreme Court had fully abandoned the "corporate personhood" doctrine as a means for advancing corporate interests by the 1960s.

Although the 14th Amendment mentions "persons" in several places, the First Amendment - the amendment that the court used for empowering corporations in Citizens United and other election cases - does not even once mention the word "person." As Mayer explained, the use of the "corporate personhood" doctrine was far more persuasive in the context of protecting corporate property rights under the 14th Amendment than when extended to include corporations in the enjoyment of the intangible rights, such as freedom of speech, contained in the First Amendment. Thus, the court took a different approach to expand corporate power that did not employ the legally weak, intuitively unpersuasive and oxymoronic "corporate personhood" doctrine.

The Supreme Court did not base its pro-corporate First Amendment decisions on supposed "constitutional rights" of corporations. Instead, it applied novel interpretations of the First Amendment that were independent of the identity of the speaker to open the floodgates of corporate money in elections, thereby turning elections into the high-return investment vehicles they are today.

The novel interpretations of the First Amendment were initiated in two Supreme Court cases decided decades before Citizens United. In its 1976 Buckley v Valeo decision, the Supreme Court equated spending money in politics with First Amendment protected speech and overturned federal limits on expenditures in elections as violating the First Amendment.

Its 1978 decision in First National Bank of Boston v. Bellotti was the first case in which the Supreme Court overturned a law that restricted corporate money in politics. In this case, involving a referendum question, the decision rested on the supposed First Amendment right of the listener, not the right of the speaker. The Court clearly explained that it was neither creating a corporate right nor relying on any notion of corporate personhood. In fact, the US Supreme Court shot down the court below for anachronistically framing the argument as one of corporate rights and corporate personhood:

The Court below [the Supreme Judicial Court of Massachusetts] framed the principal question in this case as whether and to what extent corporations have first Amendment rights. We believe that the [Massachusetts Court] posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The first amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" first amendment rights, and if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the first amendment was meant to protect. We hold that it does.
...

The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.
...

The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.

Expressly following the approaches taken in these two cases, the court broke no new ground in Citizens United when it ruled that:

 ... voters must be free to obtain information from diverse sources in order to determine how to cast their votes.
...

When Government seeks to use its full power, including the criminal law, to command  where a person may get his or her information or what distrusted source he or she may  not hear, it uses censorship to control thought. This is unlawful. The First Amendment  confirms the freedom to think for ourselves.

Thus, in Citizens United, the Supreme Court continued to articulate a theory of speech that underlies all the court's decisions allowing money into politics. What was novel in Citizens United was not anything remotely related to corporate personhood, but the court's expansion of the theory it provided in Bellotti from referendum questions to electioneering for candidates. In both cases, the court defined freedom of speech as protected by the First Amendment from the perspective of the listener, rather than of the speaker. The court held that the listener had the right to listen to all sources, whether the sources be corporations, partnerships, other business entities, individuals, associations or nonprofits. The court relied on the phrasing of the First Amendment to rule that Congress could not abridge "freedom of speech" in the abstract, irrespective of the source of the speech or the rights - or absence of rights - of the speaker.

The court could not have made any clearer that the right it defined has nothing to do with the "personhood" of the speaker, the source of the money for the speech or the rights of the source of the money. Citizens United and four other cases were decided after 2006, when pro-corporate justices, led by Chief Justice John G. Roberts, reached a majority of five on the Supreme Court. In these cases, the court combined the "money is speech" theory of Buckley with the "furthering free and open debate" analysis provided for referendum questions of Bellotti to usher unlimited corporate money into electoral politics. Thus, the Roberts 5 employed the more easily defensible abstract "open debate" basis for providing unlimited private money in elections that was created decades earlier, far removed from any reliance on the questionable idea of corporate personhood doctrine and any questions of whether corporations have the same rights as people.

Many may be surprised to learn that no federal campaign finance law has ever been struck down by the Supreme Court on grounds of "corporate personhood" or any kind of corporate rights. The court has consistently hinged its decisions on the First Amendment rights of the listener to hear all sources of the free and open debate and of society to enjoy an abstract "freedom of speech" disconnected from the identity of the speaker.

Citizens United was not the only case in which the Roberts 5 placed their pro-1-percent thumbs on this scale of justice. Of the four other decisions since 2006 in which the Roberts 5 extended the role of private interest money in politics, three had nothing to do with corporations. While the fourth did as much as Citizens United to open wide the gates to corporate money, like Citizens United, it did so without resorting to corporate personhood or corporate "rights." Those four cases seem to have been largely ignored by those inflating the importance of "corporate personhood" as the key problem. Together these cases show that corporate personhood actually has nothing to do with the key problem of money in politics.

The relatively ignored 2011 Arizona Free Enterprise v. Bennett decision, which overturned an Arizona public campaign funding law adopted by referendum, is probably more important than Citizens United. This is because it struck down a way of using public funding to effectively compete with private interest money in elections. The Roberts 5 thus showed they would brook no workarounds of their decisions that have the effect of mandating corrupt elections.

Abolishing corporate constitutional rights or the legal concept of "corporate personhood," as it applies to elections, would have no effect on the court's analysis in Citizens United or any of these other four cases, because none of its decisions mentioned, relied upon or in any way depended on that concept or any rights of corporations. The same is true of all the court's decisions dating back to the 1976 origin of the "money is speech" doctrine. The decision in Citizens United struck down a 1907 federal law which prohibited corporate-sponsored political messages. That law had been adopted after two presidential elections in which massive, corporate-funded electioneering determined the outcomes led to popular outrage against corporate contributions and forced Congressional action.

No breathing human person with standing in the Citizens United case actually asserted the "right" to have his or her TV programming interrupted to hear a corporate-sponsored political message. This "right" of real living persons to hear corporate electioneering was created by the Roberts Court for an imaginary voter. The court allowed the not-for-profit corporate party in the case to rely on court-imagined rights of real, living human beings who were not parties to the case. So, the court in effect struck down laws embodying the long-standing will of the people without any plaintiff in court asserting an individual right violated by that law. Further, as Justices Stevens, Ginsburg, Breyer, and Sotomayor asserted in their dissent, the court used the case to "rewrite the law relating to campaign expenditures by for-profit corporations and unions" which also were not parties to the case. In all these ways, the court decision thus violated the Constitution's "case and controversy" requirement. The decision was actually no more than an "advisory opinion," a type of decision the US Supreme Court has no constitutional authority to make. The Roberts 5 thus played fast and loose with constitutional limitations on its powers.

Where the Roberts 5 did "shockingly" break new ground in Citizens United and did reverse clear precedent was in its failure to strike a rational and principled balance between the negligible speech value of private money in elections and the harm such private money causes to the democratic form of government. As stated by Justice James C. Nelson, dissenting from what he considered a futile effort by the Montana Supreme Court to insulate Montana from the pernicious and unconstitutional effects of the Citizens United decree:

Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government's compelling interest in preserving the fundamental right to vote in elections. Western Tradition Partnership v. Attorney General Bullock (Montana, December 30, 2011)

The Montana Supreme Court articulated the strategic ground upon which Citizens United should properly be attacked - the proposition that money is such valuable speech that the corrupting influence of money in elections can be ignored. By refusing to engage in the usual balancing of First Amendment rights against potential for public harm when performing its First Amendment analysis, the Roberts 5 reversed the court's own First Amendment precedent, as well as the law regarding corporate financing of elections that extended back to the era of Theodore Roosevelt.

For their traditional First Amendment balancing, on one side of the scale, courts have categorized the speech as either a kind that communicates an idea, opinion, demand, information relevant to democratic debate, etcetera, or a kind that better fits the category of being merely an instrumentality of transactional conduct. (The speech can also fall in the middle between these two categories). The more communicative and the less transactional, the more weight the courts have recognized on this side of the scale. On the other side of the scale is weighed the amount of harm done by allowing the speech. Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.

Other legal restraints on communicative speech, including judicial gag orders restricting pre-trial publicity and laws prohibiting the publication of the name of a rape victim, similarly are considered to have insufficient value as communication to justify the harm they might do. No one disputes that the clear harms caused by these categories of speech activities may outweigh any communicative value such speech may have.

The Citizens United decision is constitutionally flawed for two reasons that have nothing to do with corporate personhood. Each of these flaws provides adequate grounds for Congress to overturn not just one, but all of the Supreme Court decisions relating to private money in politics since 1976.

First, the Roberts 5 stepped outside the court's constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court's own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976. Every decision widening the gates to money in politics since Buckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.

Second, even if the court had constitutional authority to take up an issue of election integrity, which it does not, the court overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.

By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians. For example, a study done by Raquel Alexander, Susan Scholz, and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election-cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Roberts 5 in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public's greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.

The sterile, highly technical issue of corporate personhood is an antiquated doctrine that played no role in Citizens United or any of the other election cases. From a practical point of view, as the Supreme Court itself pointed out, whether corporations should have First Amendment rights is the wrong question to ask, and, also, the wrong argument to wage. Limiting the scope of who can enjoy speech rights alienates such potential allies as the American Civil Liberties Union (ACLU) and diverts energy away from the actual constitutional problems.

A public aroused by and sympathetic to Occupy Wall Street may pressure Congress for an immediately available solution already provided in the Constitution and based on ordinary majority votes, as described in the "Constitutional Amendment Not Needed: Congress Already Has a Remedy" article. Diverting this public into seeking an unnecessary constitutional amendment on an irrelevant issue allows the serious threat to democracy created by the present Supreme Court majority to continue for the 2012 election, and on into the indefinite future.

Consider, also, that attacking the actual First Amendment grounds used by the court demonstrates the gross unfairness of the court's decision. To see this, let's compare a recent, genuine First Amendment issue involving Occupy Wall Street protesters. In addition to their general assemblies, working groups, marches and demonstrations, in which they exercised their pure First Amendment rights of "freedom of speech" and "right of the people peaceably to assemble" the protesters used the extremely effective symbolic communication activity of encampments for discussion and learning by the dispossessed and the committed. The police violently attacked and destroyed encampments and arrested or assaulted many protesters who were clearly exercising rights embodied in the First Amendment.

While this pure political speech and assembly on behalf of the 99 percent has been violently suppressed, the use of money by the 1 percent to influence elections, politicians, policies and contracts for private gain continues under the protection of the Roberts 5. This amounts to one rule for the 1 percent and an entirely different rule for the protesters representing the 99 percent.

The comparison of the treatment of private money in elections with the treatment of Occupy encampments is instructive on both sides of the First Amendment scales. A fair balancing of the respective weights strongly favors protecting the Occupy protesters' First Amendment right to peaceably assemble in their highly communicative encampments that do no harm, while denying the 1 percent a right to corrupt politics with their high-return-on-investment transactional spending on behalf of candidates that are highly destructive to the democratic form of government. Unfortunately, so far, neither municipal authorities nor the Supreme Court has done that fair balancing.

The contrast in application of the rule of law is at the very heart of what Occupy Wall Street is protesting - one law for those in the 1 percent who paid for advertising to have representatives elected into government, and another law for the majority of the governed.

While corporate advertising often works to elect candidates favorable to the corporations, it does not appear to satisfy the democratic aspirations of the public: "the latest Rasmussen Reports national telephone survey  finds that just 20 percent of likely US voters say the federal government has the consent of the governed."

Occupy Wall Street has already demonstrated the capability of mobilizing large numbers of people against gross inequality. The gross inequality and failure to apply a consistent rule of law in interpretation and application of the First Amendment to money in politics on the one hand, and to protester's encampments on the other, is a prime example of what they protest.

The urgency of removing private money from elections demands first properly understanding the basis for the court's decisions. It also requires determination not to be diverted by politicians, fundraising public interest organizations or professional activists from using that understanding to create an effective strategy.

Fortunately, an effective strategy does not require a constitutional amendment, whether for the irrelevant task of repealing corporate personhood or for the imperative task of excluding private money - not just for-profit corporate money - from elections.

Without the corporate personhood and constitutional amendment diversions, Sen. Sanders, Rep. Deutch and an aroused public can demand that Congress use its existing constitutional powers under Article III, Section 2 to restore the traditional limits on court jurisdiction over the political question of private money in elections. Then Congress will be free to pass legislation abolishing corrupting private finance of elections. While substantial public pressure is still needed for Congress to pass this legislation with ordinary majority votes, the barrier to success is far lower than the third-thirds vote in each house and ratification by three-fourths  of the states required for a constitutional amendment. This direct route to restoring government of, by and for the people addresses the actual constitutional problems raised by the court, removes court power to find other creative vehicles to corrupt election  and is available now without a constitutional amendment.

Rob Hager

Rob Hager and James Marc Leas are lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.

James Marc Leas

James Marc Leas is a Vermont attorney and is a past co-chair of the National Lawyers Guild Free Palestine Subcommittee. He collected evidence in the Gaza Strip from November 27 to December 3, 2012, as part of a 20 member delegation from the United States and Europe and co-authored several articles describing findings. He also participated in the National Lawyers Guild delegation to Gaza after Operation Cast Lead in February 2009 and contributed to its report, "Onslaught: Israel's Attack on Gaza and the Rule of Law."


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The Problem With Citizens United Is Not Corporate Personhood

Tuesday, 17 January 2012 03:25 By James Marc Leas and Rob Hager, Truthout | News Analysis

Vermont Sen. Bernie Sanders and Florida Rep. Ted Deutch introduced a constitutional amendment in December to overturn Citizens United, one of five decisions since 2006 by which a closely divided Supreme Court vastly increased the amount of corrupting corporate money in elections.

In an opinion piece critical of the decision in Citizens United, Senator Sanders wrote:

When the Supreme Court says that for purposes of the First Amendment, corporations are people, that writing checks from the company's bank account is constitutionally-protected speech and that attempts by the federal government and states to impose reasonable restrictions on campaign ads are unconstitutional, when that occurs, our democracy is in grave danger.

The joint Sanders-Deutch Resolution proposes an amendment to the constitution "to expressly exclude for-profit corporations from the rights given to natural persons." The first section of the amendment states:

The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

While Senator Sanders and Representative Deutch correctly characterize the danger to democracy and the need for strong action in response, a close reading of Citizens United shows that constitutional rights of corporations played no role whatsoever in the Citizens United decision.

The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections. This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections, or could prevent the pro-corporate majority on the Supreme Court from making further decisions corrupting elections.

Fortunately, the inordinate influence of private money in elections can be fixed, and the fix is far easier to accomplish - and more certain of success if accomplished - than any kind of constitutional amendment, as described in "Constitutional Amendment Not Needed: Congress Already Has a Remedy." 

As to corporate rights, what is true is that the legal fiction of corporate personhood was created to apply the 14th Amendment for protecting corporations from certain state regulations and taxes during the first Gilded Age (1870-1900). The 14th Amendment prevents any state from depriving "any person" of property without due process of law or denying "any person" equal protection of the laws.

Under both mass public pressure and pressure from the Roosevelt administration, by 1938 the court generally stopped striking down laws regarding economic regulation on any grounds, and began to elevate protection of personal liberties over property rights. As described in an article about the rise and fall of the corporate personhood doctrine by Carl J. Mayer,  "Personalizing the Impersonal: Corporations and the Bill of Rights," 41 Hastings Law Journal 577 (1990), the Supreme Court had fully abandoned the "corporate personhood" doctrine as a means for advancing corporate interests by the 1960s.

Although the 14th Amendment mentions "persons" in several places, the First Amendment - the amendment that the court used for empowering corporations in Citizens United and other election cases - does not even once mention the word "person." As Mayer explained, the use of the "corporate personhood" doctrine was far more persuasive in the context of protecting corporate property rights under the 14th Amendment than when extended to include corporations in the enjoyment of the intangible rights, such as freedom of speech, contained in the First Amendment. Thus, the court took a different approach to expand corporate power that did not employ the legally weak, intuitively unpersuasive and oxymoronic "corporate personhood" doctrine.

The Supreme Court did not base its pro-corporate First Amendment decisions on supposed "constitutional rights" of corporations. Instead, it applied novel interpretations of the First Amendment that were independent of the identity of the speaker to open the floodgates of corporate money in elections, thereby turning elections into the high-return investment vehicles they are today.

The novel interpretations of the First Amendment were initiated in two Supreme Court cases decided decades before Citizens United. In its 1976 Buckley v Valeo decision, the Supreme Court equated spending money in politics with First Amendment protected speech and overturned federal limits on expenditures in elections as violating the First Amendment.

Its 1978 decision in First National Bank of Boston v. Bellotti was the first case in which the Supreme Court overturned a law that restricted corporate money in politics. In this case, involving a referendum question, the decision rested on the supposed First Amendment right of the listener, not the right of the speaker. The Court clearly explained that it was neither creating a corporate right nor relying on any notion of corporate personhood. In fact, the US Supreme Court shot down the court below for anachronistically framing the argument as one of corporate rights and corporate personhood:

The Court below [the Supreme Judicial Court of Massachusetts] framed the principal question in this case as whether and to what extent corporations have first Amendment rights. We believe that the [Massachusetts Court] posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The first amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" first amendment rights, and if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the first amendment was meant to protect. We hold that it does.
...

The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.
...

The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.

Expressly following the approaches taken in these two cases, the court broke no new ground in Citizens United when it ruled that:

 ... voters must be free to obtain information from diverse sources in order to determine how to cast their votes.
...

When Government seeks to use its full power, including the criminal law, to command  where a person may get his or her information or what distrusted source he or she may  not hear, it uses censorship to control thought. This is unlawful. The First Amendment  confirms the freedom to think for ourselves.

Thus, in Citizens United, the Supreme Court continued to articulate a theory of speech that underlies all the court's decisions allowing money into politics. What was novel in Citizens United was not anything remotely related to corporate personhood, but the court's expansion of the theory it provided in Bellotti from referendum questions to electioneering for candidates. In both cases, the court defined freedom of speech as protected by the First Amendment from the perspective of the listener, rather than of the speaker. The court held that the listener had the right to listen to all sources, whether the sources be corporations, partnerships, other business entities, individuals, associations or nonprofits. The court relied on the phrasing of the First Amendment to rule that Congress could not abridge "freedom of speech" in the abstract, irrespective of the source of the speech or the rights - or absence of rights - of the speaker.

The court could not have made any clearer that the right it defined has nothing to do with the "personhood" of the speaker, the source of the money for the speech or the rights of the source of the money. Citizens United and four other cases were decided after 2006, when pro-corporate justices, led by Chief Justice John G. Roberts, reached a majority of five on the Supreme Court. In these cases, the court combined the "money is speech" theory of Buckley with the "furthering free and open debate" analysis provided for referendum questions of Bellotti to usher unlimited corporate money into electoral politics. Thus, the Roberts 5 employed the more easily defensible abstract "open debate" basis for providing unlimited private money in elections that was created decades earlier, far removed from any reliance on the questionable idea of corporate personhood doctrine and any questions of whether corporations have the same rights as people.

Many may be surprised to learn that no federal campaign finance law has ever been struck down by the Supreme Court on grounds of "corporate personhood" or any kind of corporate rights. The court has consistently hinged its decisions on the First Amendment rights of the listener to hear all sources of the free and open debate and of society to enjoy an abstract "freedom of speech" disconnected from the identity of the speaker.

Citizens United was not the only case in which the Roberts 5 placed their pro-1-percent thumbs on this scale of justice. Of the four other decisions since 2006 in which the Roberts 5 extended the role of private interest money in politics, three had nothing to do with corporations. While the fourth did as much as Citizens United to open wide the gates to corporate money, like Citizens United, it did so without resorting to corporate personhood or corporate "rights." Those four cases seem to have been largely ignored by those inflating the importance of "corporate personhood" as the key problem. Together these cases show that corporate personhood actually has nothing to do with the key problem of money in politics.

The relatively ignored 2011 Arizona Free Enterprise v. Bennett decision, which overturned an Arizona public campaign funding law adopted by referendum, is probably more important than Citizens United. This is because it struck down a way of using public funding to effectively compete with private interest money in elections. The Roberts 5 thus showed they would brook no workarounds of their decisions that have the effect of mandating corrupt elections.

Abolishing corporate constitutional rights or the legal concept of "corporate personhood," as it applies to elections, would have no effect on the court's analysis in Citizens United or any of these other four cases, because none of its decisions mentioned, relied upon or in any way depended on that concept or any rights of corporations. The same is true of all the court's decisions dating back to the 1976 origin of the "money is speech" doctrine. The decision in Citizens United struck down a 1907 federal law which prohibited corporate-sponsored political messages. That law had been adopted after two presidential elections in which massive, corporate-funded electioneering determined the outcomes led to popular outrage against corporate contributions and forced Congressional action.

No breathing human person with standing in the Citizens United case actually asserted the "right" to have his or her TV programming interrupted to hear a corporate-sponsored political message. This "right" of real living persons to hear corporate electioneering was created by the Roberts Court for an imaginary voter. The court allowed the not-for-profit corporate party in the case to rely on court-imagined rights of real, living human beings who were not parties to the case. So, the court in effect struck down laws embodying the long-standing will of the people without any plaintiff in court asserting an individual right violated by that law. Further, as Justices Stevens, Ginsburg, Breyer, and Sotomayor asserted in their dissent, the court used the case to "rewrite the law relating to campaign expenditures by for-profit corporations and unions" which also were not parties to the case. In all these ways, the court decision thus violated the Constitution's "case and controversy" requirement. The decision was actually no more than an "advisory opinion," a type of decision the US Supreme Court has no constitutional authority to make. The Roberts 5 thus played fast and loose with constitutional limitations on its powers.

Where the Roberts 5 did "shockingly" break new ground in Citizens United and did reverse clear precedent was in its failure to strike a rational and principled balance between the negligible speech value of private money in elections and the harm such private money causes to the democratic form of government. As stated by Justice James C. Nelson, dissenting from what he considered a futile effort by the Montana Supreme Court to insulate Montana from the pernicious and unconstitutional effects of the Citizens United decree:

Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government's compelling interest in preserving the fundamental right to vote in elections. Western Tradition Partnership v. Attorney General Bullock (Montana, December 30, 2011)

The Montana Supreme Court articulated the strategic ground upon which Citizens United should properly be attacked - the proposition that money is such valuable speech that the corrupting influence of money in elections can be ignored. By refusing to engage in the usual balancing of First Amendment rights against potential for public harm when performing its First Amendment analysis, the Roberts 5 reversed the court's own First Amendment precedent, as well as the law regarding corporate financing of elections that extended back to the era of Theodore Roosevelt.

For their traditional First Amendment balancing, on one side of the scale, courts have categorized the speech as either a kind that communicates an idea, opinion, demand, information relevant to democratic debate, etcetera, or a kind that better fits the category of being merely an instrumentality of transactional conduct. (The speech can also fall in the middle between these two categories). The more communicative and the less transactional, the more weight the courts have recognized on this side of the scale. On the other side of the scale is weighed the amount of harm done by allowing the speech. Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.

Other legal restraints on communicative speech, including judicial gag orders restricting pre-trial publicity and laws prohibiting the publication of the name of a rape victim, similarly are considered to have insufficient value as communication to justify the harm they might do. No one disputes that the clear harms caused by these categories of speech activities may outweigh any communicative value such speech may have.

The Citizens United decision is constitutionally flawed for two reasons that have nothing to do with corporate personhood. Each of these flaws provides adequate grounds for Congress to overturn not just one, but all of the Supreme Court decisions relating to private money in politics since 1976.

First, the Roberts 5 stepped outside the court's constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court's own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976. Every decision widening the gates to money in politics since Buckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.

Second, even if the court had constitutional authority to take up an issue of election integrity, which it does not, the court overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.

By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians. For example, a study done by Raquel Alexander, Susan Scholz, and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election-cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Roberts 5 in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public's greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.

The sterile, highly technical issue of corporate personhood is an antiquated doctrine that played no role in Citizens United or any of the other election cases. From a practical point of view, as the Supreme Court itself pointed out, whether corporations should have First Amendment rights is the wrong question to ask, and, also, the wrong argument to wage. Limiting the scope of who can enjoy speech rights alienates such potential allies as the American Civil Liberties Union (ACLU) and diverts energy away from the actual constitutional problems.

A public aroused by and sympathetic to Occupy Wall Street may pressure Congress for an immediately available solution already provided in the Constitution and based on ordinary majority votes, as described in the "Constitutional Amendment Not Needed: Congress Already Has a Remedy" article. Diverting this public into seeking an unnecessary constitutional amendment on an irrelevant issue allows the serious threat to democracy created by the present Supreme Court majority to continue for the 2012 election, and on into the indefinite future.

Consider, also, that attacking the actual First Amendment grounds used by the court demonstrates the gross unfairness of the court's decision. To see this, let's compare a recent, genuine First Amendment issue involving Occupy Wall Street protesters. In addition to their general assemblies, working groups, marches and demonstrations, in which they exercised their pure First Amendment rights of "freedom of speech" and "right of the people peaceably to assemble" the protesters used the extremely effective symbolic communication activity of encampments for discussion and learning by the dispossessed and the committed. The police violently attacked and destroyed encampments and arrested or assaulted many protesters who were clearly exercising rights embodied in the First Amendment.

While this pure political speech and assembly on behalf of the 99 percent has been violently suppressed, the use of money by the 1 percent to influence elections, politicians, policies and contracts for private gain continues under the protection of the Roberts 5. This amounts to one rule for the 1 percent and an entirely different rule for the protesters representing the 99 percent.

The comparison of the treatment of private money in elections with the treatment of Occupy encampments is instructive on both sides of the First Amendment scales. A fair balancing of the respective weights strongly favors protecting the Occupy protesters' First Amendment right to peaceably assemble in their highly communicative encampments that do no harm, while denying the 1 percent a right to corrupt politics with their high-return-on-investment transactional spending on behalf of candidates that are highly destructive to the democratic form of government. Unfortunately, so far, neither municipal authorities nor the Supreme Court has done that fair balancing.

The contrast in application of the rule of law is at the very heart of what Occupy Wall Street is protesting - one law for those in the 1 percent who paid for advertising to have representatives elected into government, and another law for the majority of the governed.

While corporate advertising often works to elect candidates favorable to the corporations, it does not appear to satisfy the democratic aspirations of the public: "the latest Rasmussen Reports national telephone survey  finds that just 20 percent of likely US voters say the federal government has the consent of the governed."

Occupy Wall Street has already demonstrated the capability of mobilizing large numbers of people against gross inequality. The gross inequality and failure to apply a consistent rule of law in interpretation and application of the First Amendment to money in politics on the one hand, and to protester's encampments on the other, is a prime example of what they protest.

The urgency of removing private money from elections demands first properly understanding the basis for the court's decisions. It also requires determination not to be diverted by politicians, fundraising public interest organizations or professional activists from using that understanding to create an effective strategy.

Fortunately, an effective strategy does not require a constitutional amendment, whether for the irrelevant task of repealing corporate personhood or for the imperative task of excluding private money - not just for-profit corporate money - from elections.

Without the corporate personhood and constitutional amendment diversions, Sen. Sanders, Rep. Deutch and an aroused public can demand that Congress use its existing constitutional powers under Article III, Section 2 to restore the traditional limits on court jurisdiction over the political question of private money in elections. Then Congress will be free to pass legislation abolishing corrupting private finance of elections. While substantial public pressure is still needed for Congress to pass this legislation with ordinary majority votes, the barrier to success is far lower than the third-thirds vote in each house and ratification by three-fourths  of the states required for a constitutional amendment. This direct route to restoring government of, by and for the people addresses the actual constitutional problems raised by the court, removes court power to find other creative vehicles to corrupt election  and is available now without a constitutional amendment.

Rob Hager

Rob Hager and James Marc Leas are lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.

James Marc Leas

James Marc Leas is a Vermont attorney and is a past co-chair of the National Lawyers Guild Free Palestine Subcommittee. He collected evidence in the Gaza Strip from November 27 to December 3, 2012, as part of a 20 member delegation from the United States and Europe and co-authored several articles describing findings. He also participated in the National Lawyers Guild delegation to Gaza after Operation Cast Lead in February 2009 and contributed to its report, "Onslaught: Israel's Attack on Gaza and the Rule of Law."


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