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Shed a Tear for Our Democracy

by Robert WeissmanPublic Cititzen
January 22nd, 2010

Shed a tear for our democracy.

Yesterday, in the case Citizens United v. FEC, the U.S. Supreme Court ruled that corporations have a First Amendment right to spend unlimited amounts of money to influence election outcomes.

Money from Exxon, Goldman Sachs, Pfizer and the rest of the Fortune 500 is already corroding the policy making process in Washington, state capitals and city halls. Now, the Supreme Court tells these corporate giants that they have a constitutional right to trample our democracy.

In eviscerating longstanding rules prohibiting corporations from using their own monies to influence elections, the court invites giant corporations to open up their treasuries to buy election outcomes. Corporations are sure to accept the invitation.

The predictable result will be corporate money flooding the election process; huge targeted campaigns by corporations and their front groups attacking principled candidates who challenge parochial corporate interests; and a chilling effect on candidates and election officials, who will be deterred from advocating and implementing policies that advance the public interest but injure deep-pocket corporations.

Because the decision is made on First Amendment constitutional grounds, the impact will be felt not only at the federal level, but in the states and localities, including in state judicial elections.

In one sense, the decision was a long time in coming. Over the past 30 years, the Supreme Court has created and steadily expanded the First Amendment protections that it has afforded for-profit corporations.

But in another sense, the decision is a startling break from Supreme Court tradition. Even as it has mistakenly equated money with speech in the political context, the court has long upheld regulations on corporate spending in the electoral context. The Citizens United decision is also an astonishing overreach by the court. No one thought the issue of corporations' purported right to spend money to influence election outcomes was at stake in this case until the Supreme Court so decreed. The case had been argued in lower courts, and was originally argued before the Supreme Court, on narrow grounds related to application of the McCain-Feingold campaign finance law.

The court has invented the idea that corporations have First Amendment rights to influence election outcomes out of whole cloth. There is surely no originalist interpretation to support this outcome, since the court created the rights only in recent decades. Nor can the outcome be justified in light of the underlying purpose and spirit of the First Amendment. Corporations are state-created entities, not real people. They do not have expressive interests like humans; and, unlike humans, they are uniquely motivated by a singular focus on their economic bottom line.

Corporate spending on elections defeats rather than advances the democratic thrust of the First Amendment.

We, the People cannot allow this decision to go unchallenged. We, the People cannot allow corporations to take control of our democracy.

There are some things that can be done to mitigate the damage from today's decision.

First, we must have public financing of elections. Public financing will give independent candidates a base from which they may be able to compete against candidates benefiting from corporate expenditures. We will intensify our efforts to win rapid passage of the Fair Elections Now Act, which would provide congressional candidates with an alternative to corporate-funded campaigns before fundraising for the 2010 election is in full swing. Sponsored by Sen. Richard Durbin, D-Illinois, and Rep. John Larson, D-Connecticut, the bill would encourage unlimited small-dollar donations from individuals and provide candidates with public funding in exchange for refusing corporate contributions or private contributions in amounts of more than $100. The proposal has broad support, including more than 126 co-sponsors in the House.

In the wake of the court's decision, it is also essential that the presidential public financing system be made viable again. Cities and states will also need to enact public financing of elections.

Congress must ensure that corporate CEOs do not use corporate funds for political purposes, against the wishes of shareholders, with legislation requiring an absolute majority of shares to be voted in favor, before any corporate political expenditure is permitted. There are other legislative approaches to limit today's damage, including a range of measures proposed by Representative Alan Grayson, D-Florida.

These mitigating measures will not be enough to offset today's decision, however. The decision itself must be overturned.

We need a constitutional amendment specifying that for-profit corporations are not entitled to First Amendment protections, except for freedom of the press. A constitutional amendment is not a thing to throw around lightly. But today's decision so imperils our democratic well-being, and so severely distorts the rightful purpose of the First Amendment, that a constitutional corrective is demanded.

Winning a constitutional amendment will be a long-term effort. The starting point is for the people to petition their government to demand action. Public Citizen with allies has launched such a petition effort. Got to <www.dontgetrolled.org> to sign the petition.

The Supreme Court has lost its way. Democracy is rule of the people -- real, live humans, not artificial entity corporations. Now it's time for the people to reassert their rights.

Robert Weissman is president of Public Citizen <www.citizen.org>.


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