A Revolution from the Court?

by Mary G. Wilson, President, League of Women Voters of the United States

(The League filed an amicus brief in the case Citizens United v. FEC in association with the Constitutional Accountability Center)

In a breathtaking move earlier this year, the Supreme Court ordered reconsideration of one of the basic pillars of modern American democracy – the prohibition on unlimited corporate and union spending in candidate elections.  The Court’s upcoming decision in Citizens United v. FEC will determine whether corporations can intervene directly in elections from school board to President of the United States.  It thus has the potential to be more important than Bush v. Gore to American democracy.  This is not merely another run-of-the-mill, technical case about campaign finance regulations; it has the potential to allow corporate wealth to dominate our elections for years to come. 

Earlier this fall, the Court heard oral arguments in Citizens United.   What’s at stake?  Imagine Exxon or Pfizer spending hundreds of thousands of dollars directly in a Senate race to make sure that a Senator will be responsive to their corporate concerns about energy or health care policies.  Or imagine one of the companies that recently received billions in federal aid spending a million dollars or two to support President Obama in his re-election bid because he saved the corporation from bankruptcy.  And think how corporate and union funds could overwhelm campaigns for state representative, state and municipal judges, and zoning commissions.  Add into this scenario unfettered spending by foreign-owned corporate entities and you truly have the ingredients for a revolution – a frightening revolution. 

Modern American democracy is the story of the rights of individual citizens.  The Voting Rights Act of 1965 expanded our democracy by ensuring that every citizen will be allowed to vote, regardless of race or ethnicity.  The Court’s 1964 decision in Reynolds v. Sims required that every person be counted equally in the apportionment of legislative bodies, ensuring equality of representation throughout our country.  And, to protect the role of individual citizens in the election process, Congress has long prohibited election spending by corporations and unions.  Together, these three pillars provide the foundation for our modern electoral system. 

Voters are supposed to be at the center of our political process.  For more than two centuries, America’s constitutional democracy has been moving in the direction of broader enfranchisement and more meaningful political participation by American citizens.  After the Civil War, the 15th Amendment to the Constitution guaranteed the right to vote to citizens regardless of race or color.  The 19th Amendment provided voting rights to women, the 24th to poor citizens and the 26th to young adults. 

On the other hand, our Constitution does not reflect a similar solicitude for corporate participation; indeed our constitutional history reflects a growing concern over the influence of corporations, and the distinction between the legal protections afforded to living persons and corporations has been part of our constitutional law from the Founding.

In 1907, outraged by corruption from huge election expenditures by corporations at the end of the Nineteenth Century, Congress passed the Tillman Act, which prohibits corporate expenditures in candidate elections and which started the era of campaign finance regulation.  Scandals also provoked new campaign finance laws in the 1970s and 2002.  In 1947, direct spending by unions in elections was prohibited by Congress.  

Throughout this history, the Supreme Court respected and approved congressional limitations on corporate and union spending, upholding these restrictions against a First Amendment challenge in 1990 in Austin v. Michigan Chamber of Commerce and again in 2003 in McConnell v. FEC

Opponents of campaign finance restrictions argue that the First Amendment should apply to corporations in exactly the same way that it applies to individuals.  They suggest that the corporate “person” created by the state should have all the rights of an individual citizen, including the right to make unlimited expenditures to elect or defeat specific candidates. 

But this argument is a radical new theory and based on a fundamental fallacy:  that corporations are persons just like individuals, and that democracy would be served by unleashing the tremendous sums that for-profit corporations can amass because they are shielded from the liabilities, taxation, and other responsibilities that fall on individual citizens.   Such legal arguments run contrary to constitutional text and history and could reverse our centuries-long march of progress toward a more expansive, inclusive, citizen-based democracy. As Supreme Court Justice William Rehnquist said in this context, “it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons.”

The Supreme Court should follow precedent in this case and keep intact the basic principles protecting American democracy.  Doing otherwise would bring about an anti-democratic revolution our country does not need.