What to Say in 15 Minutes About Citizens United?

[Cross-posted to Political Context]

In two days time, I'll be speaking at an event organized by We the People of Kansas, titled "Is Democracy for Sale?" It's an officially non-partisan event--though, given its pretty thoroughly progressive liberal character, I've no doubt that movement conservatives will be thin on the ground. Still, I hope the organizers aims will be fulfilled--I hope we'll have a good conversation that will open a few minds to the terrible consequences of the 2010 Supreme Court decision, Citizens United v. Federal Election Commission. Why terrible? That's what I'll have about 15 minutes to explain. To put it very briefly here, the reason why that decision essentially made it all but impossible to organize our elections in such a way as to make voting--arguably the primary responsibility of citizenship--more important than spending money (and spending lots of it, in particular).

The usual knock against Citizens United has to do with the idea of "corporate personhood," the assumption that, in the eyes of the law, corporations hold the same free speech rights that individual human beings do, meaning that, since current constitutional law mostly guarantees the right to contribute individually to political campaigns as an expression of free speech, so much also the law guarantee the right of corporate bodies to so contribute. Despite being defended by such luminaries at Mitt Romney, this offends a lot of people...



...and rightly so. There is an important principle here, having to do with, as I mentioned before, the fundamentals of citizenship in a democratic society. A society governed by the people (the demos) needs to make sure that it is the people--individual citizens and the parties, groups, and organizations they form--who are truly exercising sovereign power, or at least it is they who are ultimately doing so (as is the case in a representative as opposed to direct democracy, as we have in the United States). This is not, it should be noted, a necessary liberal principle; when people enjoy the liberty to give or withhold consent from a government, and thus put a break upon actions which might threaten their basic freedoms, they don't automatically have self-government: after all, it's always possible to consent to a tyrant (as Hobbes's Leviathan makes clear). So at least for those of us concerned with actual democracy, this is why the point of certain lines in Jefferson's Declaration of Independence--that all men are created equal--is often often captured by way of speaking of "one person, one vote" (as codified in the Supreme Court decision Wesberry v. Sanders). That is, all of us will have a voice in governing ourselves, and all of us will be heard equally.

The idea of corporate personhood potentially threatens this, because when one corporate body purports to speak for individual members of the community, it can, depending on the particulars of the election or venue where citizens make their will known, crowd out or silence voices that otherwise have a right to be heard. Obviously this is a reality in our current election system, where the lack of effective public financing basically makes running for political office, or organizing a political party, or circulating a petition, a question of money (hiring the workers, buying the television advertising time, paying the consultants and pollsters, distributing the posters, etc.). And that, of course, means that under our election system corporations, which generally can amass far more financial resources than an individual citizen, enjoy an distinctly unequal advantage over others holders of fundamental democratic rights.

This is an argument worth making...but if this solitary argument is pushed too far, it might lead one to forget that the above logic--the maximizing potential of forming a corporate body when it comes to running for office or expressing an opinion or influencing legislation--is exactly what explains why we have interest groups, lobbyists, political parties, and dozens of other different types of organizations: religious bodies, charitable groups, non-profits, and more. To attack Citizens United solely because of the nonsense of "corporate personhood" is, ultimately, to attack the Girl Scouts, Greenpeace, the AFL-CIO, Alcoholics Anonymous, and the NAACP.

The proper argument, then, obviously isn't simply that Citizens United (following in the footsteps of earlier cases like Federal Election Commission v. Wisconsin Right to Life) had acknowledged the right which corporations have to spend money in order to get out messages and influence voters on behalf of their preferred candidates and causes, but rather that Anthony Kennedy's majority opinion in Citizens United followed the "money = speech" logic of the 1976 decision Buckley v. Valeo to an extreme end. Kennedy, writing for the majority, asserted that, because the Supreme Court had previously granted to spending money for the promotion of acts of political speech the same constitutional privileges enjoyed by acts of speech themselves under the First Amendment, almost any attempt to recognize that different persons or different corporate bodies may operate on very unequal levels when it comes to the functioning of our democracy was simply illegitimate. As a result, long-standing legislation and judicial precedents on both the state and national level--legislation and decisions which had developed over many decades in response to the obvious and highly unequal fact that, when money basically decides who has access to voters and who doesn't, our democracy doesn't work terribly well--was invalidated. Some of it was fairly recent, like Austin v. Michigan Chamber of Commerce, which had originally defended a restriction on business corporations being able to spend their own normally acquired profits in political contests, and some of it was as old as the 20th-century itself, such as when the Supreme Court put a halt to the Montana Supreme Court's efforts, in Western Tradition Partnership v. Attorney General of Montana, to preserve campaign finance restrictions which Montana had put in place many decades ago in response to the particular forms of corruption which had plagued their state. But whether old or recent, all of these precedents existed because, after different times and places, state and national actors had recognized American democracy becoming overly shaped by the power of money, whether from wealthy individuals or powerful groups, and they wanted, in the spirit of the Declaration of Independence, to guarantee real equal democratic freedom and opportunity to all--not just respecting votes equally, but respecting voices equally as well.

We obviously don't have that today, as the rise of Super PACs and the recent recall election in Wisconsin certainly prove. This is not to say that overturning or event just modifying Citizens United--which I think would be both a delightful turn of events and an extremely unlikely one, though the fact that the Supreme Court has agreed to review Citizens United in light of the Montana Supreme Court's ruling is quite hopeful--would eliminate all the problem of unequal influence in elections. That problem goes far deeper than this 2010 decision, going all the way back to the Court's willingness in 1976 to see in spending money a fundamental act of citizenship, thus granting those with money (again both individuals and corporations) a constitutional right which, in practice, gives them an unequal advantage over those who don't. The problem with Citzens United is that it took much too far a principle which is, to my mind at least, of fairly questionable democratic validity--and thus, I further think, properly of fairly limited constitutional relevance. Money can and should be limited in the role it plays in democratic elections. Citizens United, whatever it's direct provable impact on skyrocketing election costs in America, is a denial of that principle--and hence, as I said, a terrible decision, both for what it said and for the consequences which follow saying so.