Just last week, a federal judge in Virginia overturned the ban on corporations making political contributions. This was a natural extension of the ruling last year from the United States Supreme Court in the Citizens United case. The justices in that case declared that the government may not ban political spending by corporations on candidates seeking political election. The decision did not address whether corporations can give directly to candidates – that’s what the federal judge in Virginia has now said is a natural extension of the logic of the Supreme Court.
The ruling in the Citizens United case was that the government did not have the right to impede on ability of or limit the amount of corporate funding that could go toward independent political broadcasts in candidate elections. The conservative group Citizens United sought to overturn the law that had limited their ability to show a documentary about Hillary Clinton close to the Democratic primaries in 2008. This law was part of the McCain-Feingold Act, passed by Congress in 2002 as part of the campaign finance reform undertaken in Congress at the beginning of the last decade.
The disturbing thing for me, as for many others, was the logic that the Supreme Court applied in its ruling in the case, where it ruled in favor of Citizens United because it found the limit to be a violation of the First Amendment. In the majority opinion, Justice Anthony Kennedy argued, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” This might seem fine at the heart of it, but that’s simply a facile reading of the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Is Kennedy suggesting that Citizen United’s wish to put out a documentary on Hillary Clinton and to influence an election is somehow tantamount to “the right of people…to petition the Government for a redress of grievances”? The documentary isn’t a petition TO the government – it’s a petition (if you want to stretch your definition of the term) to citizens. Or is Kennedy arguing that Citizen United has a right to free speech? I find that curious, to say the least, in that Citizen United is an entity and not an individual. How does a corporation have free speech? Corporations themselves do not speak; individuals do.
I know I’m not the only person who finds it difficult to fathom how a corporation has the right to free speech. This is certainly stretching things further than common sense would allow. I don’t really want to get into a liberal/conservative argument here, or even debate just what “strict constructionist” might actually mean (though it seems to mean one thing in Bush v. Gore and something undeniably different in the Citizens United case). I’m more interested in the lack of common sense applied in the case and how it will have a strong and clear impact on elections and on the country. I understand the need to protect free speech, but I’m not sure corporations actually “have” speech; I’m also a bit unclear on what exactly corporations need to be protected from. From individuals? From other corporations? From the government? It seems that Kennedy and his associates believe the latter, but this seems asinine to me and actually besides the point of the case.
Justice John Paul Stevens, in his dissent in the Citizens United case, argued that the decision in the case did not need to reference the First Amendment at all. The attorneys for Citizens United had actually abandoned their challenge to the constitutionality of the McCain-Feingold Act. The Court pressed on, however, and used the case to overturn McCain-Feingold. In his dissent, Stevens argued that the Court had ruled on a question not actually brought before it and had “changed the case to give themselves an opportunity to change the law.” He went on to argue, referring to rather plain-old common sense, “few outside the majority of this Court would have thought [American democracy’s] flaws included a dearth of corporate money in politics.” Funny yes. Sad, even more so.
Back in the 1980s, the Australian band Midnight Oil put out a song entitled “The Dead Heart” about aboriginal rights in Australia and about the limited power aborigines had in that country. Essentially it was about money and the manipulation of the law to benefit the few who had the power. Near the end of the song, the lyrics grow as simple and as clear as the band could put it:
Mining companies, pastoral companies
Got more rights than people
Got more say than people
In Australia, the rights of corporations are weighed above the rights of the aborigines, all because of the vast financial potential of the land – for mining, for uranium, for raising livestock. (If you don’t know the song, take a listen. This description of it sounds rather dry and academic. Actually it rocks out and is incredibly catchy – the acoustic guitars and Peter Garrett’s growl are unstoppable!) The context is different in America, of course, but it seems we are moving in that same direction. The Supreme Court has decided it needs to protect the rights of corporations. The notion that corporate entities have the right to free speech, which protects their ability to influence elections and lawmakers, belies all common sense.
The potential for corporations to have a huge influence on elections is now there and justified. That began with Citizens United. It will grow even larger now that we are moving toward overturning the ban on corporations being able to give money directly to candidates. How many shell companies will be formed to provide cover for corporations to shovel money toward the candidates they will be able to influence once in office – all of which will now be protected? The limitations on individual spending allow the financial contributions of those of us who are not rich to have as much potential influence as those of wealthy individuals. But the wealthy will be much more ready to devise ways to spend their money through corporate shells to candidates, and of course, have more money to spend in the first place. Their influence will only increase, and at a time when the division of wealth in this country is only growing worse and worse.