Two years after the decision in Citizens United, the ruling is widely misrepresented and almost universally misunderstood. People who want to amend the Bill of Rights in response to the decision should read the opinion and the dissent. The law that the Supreme Court struck down would not have stemmed any of the corrupt practices seen so far in the 2012 contests, nor did it involve individual rights of any kind. People who were worried that this case would make corporations the dominant force in US politics have come a little late to the show. Constitution notwithstanding, we have cultivated a political landscape in which the rich and the commerce they control have long reigned sovereign, and the Citizens United decision didn’t change that.
The case involved a movie vilifying Hillary Clinton. The producers, a corporation, wanted to show it on cable TV during the 2008 election season, but federal law made it a felony for a corporation (or labor union) to spend money advocating the election or defeat of a candidate within a specified number of days preceding an election. The film couldn’t be shown until after the 2008 election–the government threatened criminal prosecutions if the film were aired–and so the producers sued the government. Five justices of the Supreme Court agreed with the film-makers and declared the law unconstitutional, overruling a 20-year-old precedent.
Advocates of “limits” on political expenditures have been grieving hysterically over this decision for two years. Democrats in Congress (whose main concern is the accumulation of money for re-election) have been deriding the ruling as an invitation to corruption, as if they weren’t already up to their necks in corporate money from financiers, insurance companies, and war profiteers of various descriptions. Studies show most of the members increased their personal wealth substantially while serving in Congress, and many of them have jobs waiting in the private sector the minute they leave office. Political correctness seems to demand that members defend their duly enacted laws, even illegal ones, but precious few would support a measure that actually curtailed the right of rich folks–corporate or individual–to influence public policy. Not that an act of Congress could reverse the court’s decision.
Here’s the problem: the Bill of Rights. It guarantees our right to be secure from certain kinds of intrusions on the part of the national government and it prohibits government from making laws that infringe on certain of these rights. We can say what we please, print what we please, associate with whomever we please, and enjoy our lives, liberties and properties subject to due process of law because of these ten changes to the original document.
The First Amendment begins, “Congress shall make no law” abridging freedom of speech or of the press. It doesn’t say anything about persons but applies across the board to churches, clubs, newspapers, television stations, book discussion groups and businesses, incorporated and unincorporated. The organized left, not including me, wants to amend the Constitution to limit or cut off the right of free speech for one of these categories.
Justice Kennedy, with whom I seldom agree, wrote the majority opinion and offered some hypothetical cases to illustrate the reach of the defective law and its capacity to curtail free speech. Under the law, Kennedy pointed out, the Sierra Club could be prosecuted for running an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests. The National Rifle Association could be punished for publishing a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban. The American Civil Liberties Union could face criminal penalties for creating a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. Don’t these look a bit like the sort of activities the First Amendment is designed to protect?
The decision did not, as so many observers seem to be saying, allow corporations to pour money into political campaign treasuries, and it continues to require that political messages like the Clinton film disclose the names of the sponsors. Corporations that want to give money directly to political candidates have always been able to do so through political action committees, and this ruling doesn’t change that. The much criticized activities of the “Super Pacs” in connection with the Republican presidential primaries wouldn’t have been affected in the slightest by the law if it were still in force. The bribery of public officials by the “haves” at the expense of the “have-nots” would have continued normally with or without the provision Kennedy struck down.
The court took passing notice of the obvious fact that the speech of an aggregate of people will always be louder than the speech of an individual. When a corporation (or any other association) speaks over an individual, the individual’s right to speak is curtailed. It’s an infirmity (or a strength) of our constitution, and it requires us to band together to be heard, as is our right. We also have the right to teach ourselves and our children how to resist political advertising (along with other forms of mind-control), something we’ve never even tried to do. There’s nothing to keep us from putting a tax on big advertising expenditures, commercial and political, a levy that could well change our quality of life for the better. Of course, we should demand restoration of the 90% marginal income tax rate that served us so well in the past, so the rich won’t have so much to spend on bribery. Let’s also consider a one-time property tax on obscene wealth, and let’s remember that a corporation is just an association of people. We might want to put the responsibility for corporate misconduct where it belongs: on living, breathing, culpable human beings.
Some legal observers argue that we need to amend our constitution if we want to rein in the corporate state and reverse the effect of this decision (if there really has been one). They make a strong moral argument that constitutional freedoms should be reserved for those who bear legal and moral responsibility for their acts and obligations–the people–and cut off for those that accumulate vast treasuries to exploit and oppress without personal accountability. This is dangerous logic, however: cutting off First Amendment rights is fraught with risk. Why not a law that provides for capital punishment of irresponsible conduct in interstate or international commerce (corporate or not), requiring the confiscation or dissolution and liquidation of organizations whose misdeeds cause widespread human suffering? There’s no constitutional impediment to such a law, and we wouldn’t have to mess with the Bill of Rights.