Citizens United and the Crisis of Democracy

In 2010 the US Supreme Court in Citizens United v Federal Election Commission held restrictions on campaign financing by corporations and other entities were unconstitutional under the First Amendment free speech guarantees. It is a decision that Dr Peter Burdon argues has deepened the crisis of democracy in the United States.

 In 1975 the Trilateral Commission (a group established to foster closer cooperation between the United States, Europe and Japan) issued a major book-length report titled ‘The Crisis of Democracy’. At the title suggests, the report is concerned with the governability of democracies. Its main author was Samuel Huntington, former chairman of the Department of Government at Harvard, and a US government adviser. Counterintuitively, the report argues that what is needed in contemporary democracies ‘is a greater degree of moderation’ to overcome the ‘excess of democracy’ of the past decade. The report states:

[T]he effective operation of a democratic political system usually requires some measure of apathy and non-involvement on the part of some individuals and groups.

While this analysis pertained to all trilateral countries (the United States, Europe and Japan), Huntington observed that it has particular relevance for the United States. He pointed out: ‘Truman had been able to govern the country with the cooperation of a relatively small number of Wall Street lawyers and bankers,’ a rare acknowledgement of the realities of political power in the United States. But by the mid-1960s this was no longer possible since ‘the sources of power in society had diversified tremendously’, the ‘most notable new source of power’ being the media. A second threat to the governability of democracy is posed by the ‘previously passive or unorganized groups in the population,’ such as ‘blacks, Indians, Chicanos, white ethnic groups, students and women — all of whom became organized and mobilized in new ways to achieve what they considered to be their appropriate share of the action and of the rewards.’ The threat derives from the principle, already noted, that ‘some measure of apathy and non-involvement on the part of some individuals and groups’ is a prerequisite for democracy.

 Anyone with the slightest interest in American politics understands that Wall Street is no less involved in government today than during the Truman period. In fact, since the 2010 Supreme Court Decision Citizens United the crisis of democracy has only deepened.

 The Decision

 Citizens United v Federal Election Commission was a landmark United States Supreme Court case that lifted a 63-year-old ban prohibiting corporations, trade associations and unions from spending unlimited amounts of money on political advocacy. The controversy before the Court concerned whether the broadcasting of critical television footage of Hillary Clinton by non-profit Citizens United violated the Bipartisan Campaign Reform Act (2002) (BCRA). The BCRA was a federal Act designed to restrict ‘big money’ from unfairly influencing national politics by regulating ‘electioneering communications.’ In a 5–4 decision, the Court held that sections of the BCRA violated the first amendment and struck down provisions that limited corporate/union spending on ‘electioneering communications.’ This finding affirmed the notion of corporate personhood with the majority holding:

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.

Further, because spending money is essential to disseminating speech (as established by the Supreme Court in an earlier decision of Buckley v Valeo), limiting a corporation’s ability to spend money unconstitutionally limits the ability of its members to associate effectively and to speak on political issues. One of the central figures in the movement to deregulate campaign finance and help usher in super PACs has been attorney James Bopp. He defends the Citizens United ruling on free speech grounds:

 Well, the Citizens United case frees up corporations and labor unions to be able to speak out and give their point of view on who they think should be elected to public office. Of course, this is most important to advocacy groups that are formed to advocate for certain issues or public policy, governmental action, and ultimately candidates, you know, and that’s whichever side of the aisle they might be on—that is, Sierra Club or Planned Parenthood or National Right to Life. This means that they are—they have the same freedom that everyone has to speak out if they think they have a point of view that they would like to share.

 The dissenting opinion makes for interesting reading. In a rare step, Justice Stevens read part of his 90-page dissent from the Bench. Stevens dissented from the principal holding of the majority opinion – arguing that the Court’s ruling ‘threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.’ He also warned that ‘a democracy cannot function effectively when its constituent members believe laws are being bought and sold.’ Consistent with Justice Stevens warning, one of the most troubling post-Citizens United developments has been the formation of Super-PACs (Political Action Committees). The majority in Citizens United held that Super-PACs make no formal contribution to candidates and so can accept unlimited contributions from individuals, corporations, and unions. In practice these funds have been used effectively for purchasing advertising and television/radio airtime.

 Post-Citizens United Politics

 The Republican Primary

 If there is one image that sums up the Republican Primary count it was the deluge of television ads paid for by pro-Romney Super-PACs. Federal Election Commission filings made public on 31 January 2012 revealed that the principal Super-PAC supporting Romney, Restore Our Future, raised close to $18 million in the second half of 2011, from just 199 donors. While purporting to be independent, the Restore Our Future Super-PAC is also run by a staffer for Romney’s 2008 presidential bid. Among his donors are Alice Walton, who, although listed in the report as a ‘rancher,’ is better known as an heir to the Wal-Mart fortune, and the famously caustic venture capitalist and billionaire Samuel Zell. William Koch, the third of the famous Koch brothers, also gave significant funds.

 Wisconsin and the Recall of Governor Scott Walker

 In June 2012 Wisconsin Governor Scott Walker survived an historic recall election more than a year after launching a controversial effort to roll back the bargaining rights of the state’s public workers. Walker outspent his opponent, Milwaukee Mayor Tom Barrett, seven to one after raising millions of dollars from conservative donors outside the state. The recall was the most expensive election in Wisconsin’s history, with more than $63 million spent.


 In July 2012 the Supreme Court struck down a century-old Montana law banning corporate campaign spending. Conservative non-profit organisation, American Tradition Partnership, sued the State of Montana when it tried to enforce the Montana Corrupt Practices Act which bans corporate spending in state and local political campaigns. The Supreme Court agreed with ATP and in a 5-4 decision it struck out the case and summarily reversed a previous state Supreme Court ruling that had upheld the Montana Corrupt Practices Act. Dissenting Justice Breyer challenged the decision, writing:

Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.

 In a rare show of solidarity, Montana’s governor, Brian Schweitzer (Democrat) and Lieutenant Governor John Bohlinger (Republican) released a joint video, attacking the decision. In part of the add Bohlinger says:

Republicans and Democrats don’t always agree on policy matters, but there’s one thing we do agree on, and that is, corporate money should not influence the outcome of an election.

In response, Schweitzer added:

Here in Montana, we have a proud, 100-year history of keeping corporate money out of our elections. Corporations aren’t people, and they should not control our government. Montana stood up for democracy, here at home and on behalf of America, by fighting to keep our ban on corporate campaign spending. The United States Supreme Court blocked our state law, because they said corporations are people. I’ll believe that when Texas executes one.

 The November 2012 Presidential Election

 The 2012 presidential election is set to become the most expensive race in history. Experts project that spending will top a staggering $11 billion, which is more than double the 2008 total. In August 2012 alone the Romney campaign out-raised their opponents, bringing in $16 million more than the Obama campaign. The Romney campaign and the Republican National Committee raised $76.8 million, while the Obama campaign and the National Democratic Committee brought in $60 million.

 Interestingly, Obama advisor Russ Feingold has argued that the President should not promote or engage with Super-PACs. Feingold writes:

The President is wrong to embrace the corrupt corporate politics of Citizens United through the use of Super-PAC’s — organizations that raise unlimited amounts of money from corporations and the richest individuals, sometimes in total secrecy. It’s not just bad policy; it’s also dumb strategy.’

And, he says, it’s ‘dancing with the devil.’ As an alternative, Feingold argues that Obama should run for re-election based on honest values and beliefs: ‘if you believe that the unlimited money is what actually wins elections, that’s only in a case when you don’t have a good product to sell in terms of who you are and what you are.’ While certainly honourable, it is highly unlikely that the President’s campaign strategists will take this advice and risk loosing swinging voters in marginal seats.

 Progressive Responses

 As might be expected, the Citizens United decision has fuelled a series of progressive responses. For example, Harvard Law Professor Lawrence Lessig advocates in his recent book Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It for a constitutional convention that could then propose an amendment to transform how elections are financed. In essence, Lessig argues that reform must first limit the ability of corporations and private individuals to spend unlimited amounts in political expenditures. Further, Lessig argues that it is time ‘to talk openly and honestly about the need to fund publicly public elections.’ Lessig argues:

I don’t think anybody should be banned to participate in the political process, but I do think it’s legitimate for Congress to make sure that the political process is not controlled by these unlimited super PAC expenditures.

 More radically, John Bonifaz, co-founder and director of Free Speech for People, advocates for a constitutional amendment that specifies that ‘People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities.’ Bonifaz notes further:

We’ve seen a growing mobilization across the country of people calling for an amendment to reclaim our democracy. Four states are now on record—Hawaii, Rhode Island, Vermont, New Mexico—calling for an amendment. Other states are likely to join that fight soon. Montana [has a] statewide ballot in November for an amendment. Hundreds of municipalities across the country have called for an amendment. Over a thousand business leaders have joined that call. And now there are some dozen amendment bills pending in the United States Congress calling for an amendment, with hearings to be held before the U.S. Senate Judiciary Committee this July.

 Conclusion: From Democracy to Plutocracy

 In 1905, President Theodore Roosevelt said to Congress:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law.

He signed a bill into law banning such contributions in 1907. In 2012, this hundred-year history of campaign-finance controls has been officially terminated. Certainly, the idea of democracy is largely a sham when the democratic system is controlled by any form of elite, whether its bankers, managers, technocrats or unions. Indeed, so long as a certain elite group is in power, it will make decisions that promote the interests that it serves – this marks a shift from the rule of the common people (democracy) to a rule by moneyed interests (plutocracy). And as long as democracy is tied to the imperative of campaign finance, social and environmental goals will remain a distant concern.

Dr Peter Burdon is a Lecturer at the Adelaide Law School and a member of the management committee of the University of Adelaide Research Unit for the Study of Society, Law and Religion (RUSSLR). His research interests include environmental governance, protest law and civil disobedience.


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