Citizens United: Two Years Later, Still Terrible
Washington Post columnist E. J. Dionne summed up the two-year anniversary of the Supreme Court’s Citizens United ruling succinctly.
“It’s possible to think of worse Supreme Court decisions than Citizens United,” Dionne said. “But after you get past Dred Scott, it takes a significant amount of research.”
Dionne moderated a panel of legal and advocacy experts on Monday at the Center for American Progress, our parent organization, for an event cosponsored by the American Constitutional Society called “Citizens United Two Years Later: Money and Politics in 2012.”
“What strikes me every time I have to crack open the decision again is not only the badness of the decision,” said Monica Youn, Brennan Center Constitutional Fellow at the NYU School of Law. ”But also the smugness of the decision.”
Youn said one source of smugness is the way in which the Court treats what she calls the “money-is-speech syllogism.”
“The Supreme Court says, OK, well money is speech, everyone should speak, corporations are everybody, corporations should speak, corporations should spend money in elections,” Youn said. “And they smile and everyone goes home.”
But even worse than that logic, Youn said, is the Court’s treatment of the “corruption” issue.
“My least favorite part of Citizens United is the sentence where Justice Kennedy says, ‘Well, independent expenditures cannot give rise to corruption or the appearance of corruption.’ And he just states this as a statement of fact, no evidentiary record, no citing of experts, no nothing,” she said. “Just he, Justice Kennedy in his infinite wisdom, just knows this to be absolute truth.”
Melanie Sloan, the executive director of watchdog group Citizens for Responsibility and Ethics in Washington, talked about the pernicious effects of Super PACs—which can raise unlimited amounts of money from both corporations and individuals—on the electoral process.
Super PACs are not allowed to coordinate with the campaign committees. But, Sloan said, “the Super PACs are run by close friends and associates of all the candidates, and they often announce their strategies publicly, and they put things on their website, so there’s not a lot that the candidate committees have to guess about.”
Sloan noted that while Super PACs are supposed to be transparent, a donor who wishes to remain anonymous can easily donate to a 501(c)(4) organization, which does not have to disclose its donors, which can then donate the money to a particular Super PAC.
“Is it ‘independent’ when a candidate shows up at a fundraiser for his own Super PAC?” Youn added. “Or when the former campaign manager or financial director of a national campaign moves directly from campaign to Super PAC?”
Jeff Clements, co-founder and general counsel of Free Speech For People, spoke about the “necessary and compelling opportunity” for a Constitutional amendment to overturn Citizens United.
Clements called the decision an “end-zone dance for corporate rights—a real celebration of a longer-term transformation of our Bill of Rights and our Constitution over the last three decades into … a corporate trump card over the public interest.”
Since the 1978 Bellotti decision gave corporations a First Amendment right to make political contributions, Clements said, corporate speech rights have been used to strike down environmental, financial regulation, public health, and disclosure laws across the country.
Clements acknowledged that passing a Constitutional amendment would be enormously difficult. But he thinks that today is much like the progressive era, where a sort of “Gilded Age” gives way to a wave of reform and “renewal of democracy.”
Clements noted that even in the 20th century, Congress amended the Constitution in every decade except the 1980s and the 1940s.
The panelists acknowledged that the Supreme Court is not solely to blame for the ills of Citizens United—the Federal Elections Commission has also failed to improve the system, they said, and President Obama has failed to nominate new commissioners to the FEC in the face of political pressure.
“He’s not having the fight,” Sloan said.
Emily Crockett is a reporter with Campus Progress. Follow her on Twitter @emilycrockett.