This month, the U.S. Supreme Court is threatening to strike down key provisions of the 2002 “McCain-Feingold” bipartisan campaign finance reform act, overruling two of its prior rulings in the process and uprooting a century-old principle – existent in American law since Teddy Roosevelt’s Administration – that corporations should be barred from making unlimited expenditures in elections.
Wait, what? What did I just say? Corporations might soon be able to make unlimited expenditures in elections? Can they do that?
The answer is yes, if the Supreme Court says they can. And if you didn’t know that already, you should certainly keep reading.
The case I’m referring to, of course, is Citizens United v. Federal Election Commission, which is being argued before the Court, for the second time, tomorrow morning. The reason the Court is hearing this case again is because in June, the Court ordered that the scope of the case be dramatically expanded following its first oral argument in March. At that time, Citizens United, a conservative non-profit corporation, was focused upon the FEC’s decision to treat “Hillary: The Movie” – its feature-length film criticizing Hillary Clinton during last year’s Democratic primaries – as a standard attack ad for the purposes of campaign spending regulations. Citizens United, which is subject to campaign regulation because it accepts money from businesses, argued that the film did not constitute an “electioneering communication” as defined by federal law. Not surprisingly, the FEC disagreed.
However, once the Court decided to hear the case, Citizens United – represented by Bush Solicitor General Ted Olsen — began to push for massive changes in settled campaign finance law, arguing that corporations’ “speech” (i.e., their expenditures) in elections was entitled to just as much protection under the First Amendment as speech by individuals. This argument has been raised many times by conservatives and business leaders throughout the years, and rejected repeatedly by the Court. (While current federal law allows business corporations to form political action committees, or PACs, with money collected from individuals associated with the corporation, it clearly prohibits them from using money from their general treasuries — where all their profits sit – to influence elections.) Nevertheless, to the horror of the members of Congress and progressive groups who worked so hard to pass campaign finance reform, the conservative justices on the Roberts Court seemed amenable to the argument that restrictions on corporate spending on elections were unconstitutional. Rather than deciding the case last June, the Court asked the parties to supply supplemental briefing on the constitutional question, scheduling a special September session to re-hear argument.
What the Court threatens to do now is remove these restrictions, and say that corporations can funnel unlimited amounts of money from their corporate treasuries into elections. Citizens United argues that because individuals can spend unlimited amounts of money to influence elections, corporations should be able to do so as well, in essence asserting that there is no difference between corporations and individuals when it comes to spending money on elections.
That this is an absurd assertion should be obvious to everyone, but especially to progressives, who have been fighting corporate “voices” for generations. If the Court accepts this argument, it will be undoing over 100 years of progress in campaign finance rules, starting with the Tillman Act of 1907, which established that corporations are distinct from individuals and must not be able to spend their profits in elections. This distinction builds on the text of our Constitution, which never mentions corporations, and on two hundred years of Supreme Court rulings that treat corporations and individuals differently. Abolishing this distinction will release the floodgates of corporate money – in quantities that are orders of magnitude greater than what is spent now – into federal and state elections. It will, in one fell swoop, undo decades of hard work by progressives who have fought to adopt strong campaign finance and disclosure laws. And perhaps most urgently, such a ruling stands to undo the benefits of the months of exhausting work done by millions of progressives to elect Barack Obama and progressive leaders in Congress, undermining or placing out of reach nearly every outcome on the progressive agenda, from health care reform, to clean energy, Net neutrality, consumer protection, civil rights, and more.
Think for a second about how you would have reacted to a proposal sponsored by the Bush Administration in 2003 to repeal a century’s worth of campaign finance laws that limit the ability of corporations to influence elections. Constructively engaging and pushing back against the conservative activism of the Roberts Court is trickier, but no less important. At the very least, we should all be expressing our outrage. The justices on the Supreme Court do keep an ear toward public opinion, and it is too often because progressives at large are silent about the issues and cases that come before them that they’re able to quietly, though tragically, chip away at our work. We owe it to ourselves not to let that happen here. We need to make noise about this case, and we need to do it now.
Hannah McCrea is proud to work for the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the text and history of the Constitution uphold progressive outcomes.



22 Comments







Thank you Hannah for this diary;greatly recommended. While there is an enormous -and rightfully so- amount of writing and speeching on ‘health care reform’, this is an issue that goes to the heart of whether representative democracy will remain a viable concept in the United States.
People need to be calling and writing their congress critters on this issue indicating the need for ‘clean elections’ and specifying that the artificial construct of a corporation DOES NOT have the same rights in the electoral process as a living breathing person.
AND it is because citizens have NOT spoken out loudly and repeatedly about corporations NOT having the same rights in the electoral process as a living breathing person that the Supreme Court is acting in the worst way of ‘judicial activism’.
America WAKE UP !!
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I second that emotion!
x3
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
-The Declaration Of Independence
In a column awhile ago, Glen Greenwald advised laymen like me to go ahead and read some important Supreme Court decisions. I did. The result is that I think Scalia, Thomas and Roberts are frauds. Progressive have to go after them strongly and in public, based on simple but sound common sense arguments. (Not on smears, lies, and BS a la the wingnut methods)
Need to press Obama strongly to appoint judges who will shake things up more than Sotomayor.
I think we should impeach Scalia, Thomas and Roberts for incompetence and other malfeasance, and Scalia on ethics violations. But we do not have to actaully impeach them, we can delegitimize their BS. That, plus one or two new justices will have an effect.
Oh yeah, Obama could fire his wardheeler hatchet men (mainly RE)and remember his grassroots supporters, who could elect enough more and better Congresspeople to undo as much as possible whatever bad-faith BS the Supremes dish out.
In addition to selective amnesia,it is evident Obama has “elective amnesia”,also.
Thanks for commenting.
I don’t think impeachment is realistic, especially in the case of John Roberts, who received “yes” votes from quite a few progressive Senators.
However, I would like to see progressives place more emphasis on the subject of judicial nominations during elections. We need to pressure future presidential candidates and senators to commit to confirming truly progressive, visionary justices. We should also, for that matter, be pressuring President Obama to start nominating young, brilliant, progressive judges to the lower federal courts now, so that there are lots of “seasoned” candidates to choose from when future Supreme Court vacancies come up. This is something Republicans have historically been much better at than Democrats, which is the reason we have such a conservative-leaning Court today.
And I’m very glad to hear you followed Glenn Greenwald’s advice!
I understand it probably won’t work. But I was appalled at some of Scalia’s opinions on national security. He started out with legal boilerplate which gradually turned into bellowings of frank and mindless fear. I then followed up his ‘formalist’ or ‘modified originalist’ or whatever it was theory and I think it is sophomoric junk.
So, he is unqualified, and should not be on the bench. I am an economists, so I think in know meaningless mumbo jumbo and word games when I see them.
We at least need an aggressive push to delegitimize this kind of constituional nonsense. Maybe we should write Micheal Moore and ask him to do a documentary on the Supremes, after he finishes his new movie tour.
I don’t think that you’ll find too many people who’ll agree that Scalia is unqualified.
He may be enormously hard to stomach, but that rarely gets a judge off the bench,and certainly not off the Supreme Court.
My first inkling that this was even on the Court radar was quite by chance when I watched a Bill Moyers Journal interview with Trevor Potter and Floyd Abrams. The implications of a decision in favor of Corporations left me dumb struck. Thank you for this timely warning.
Wouldn’t it be surreal if it passes only because Sotomayor votes for it?
Great this is a GOP trick to counter balance the cash Obama got from regular people. Just where in the Constitution does it say Corporations are really people Strict Constructionalists yeah right.
Are labor unions subject to the same restrictions as businesses on corporate spending?
Great point! Anyone got an answer?
Well, the ACLU seems to think it will restrict the Unions as well. In fact they have filed an Amicus Brief siding with the plaintiff and against the FEC for that very reason.
Apparently, they believe, and have always believed, this law is unconstitutional and object to it on 1st amendment grounds.
I’m surprised this wasn’t included in the piece, even if only for consideration.
http://www.aclu.org/scotus/200…..90801.html
Fair point. This is a case of interesting bedfellows, since it has pitted many progressive groups on the opposite side of the ACLU, and on the same side as John McCain (who is, of course, defending the integrity of McCain-Feingold).
I think its fair to say, however, that this case is about much much more than free speech rights. Certainly the ACLU wants to defend the First Amendment, but my question would be this: Does the text and history of the Constitution — even the Constitution at the time of the Founding, let alone the Constitution after the Progressive Era and the addition of the 17th Amendment (which aimed to reduce corporate influence in government by enacting direct election of Senators) — in anyway support the notion that corporations and individuals were to have the same legal privileges? Given that the Constitution never mentions corporations, but repeatedly makes reference to “persons” and “people,” what is the evidence that the Framers intended for the Bill of the Rights to protect corporations at all?
Speaking for myself, I’ll say I don’t think Citizens United’s argument squares with our Constitution’s text and history.
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National Journal Online – Is Now Really The Time To Loosen …Even now, some argue, massive corporate lobbying and campaign spending is … also banned independent campaign expenditures by both corporations and unions. …
nationaljournal.com/njonline/rg_20090705_6842.php – Cached – Similar
Justices may end campaign finance ban on corporations – Los …Jun 30, 2009 … The justices agreed to raise the stakes and consider overruling past decisions that restricted election spending by corporations and unions. …
articles.latimes.com/2009/jun/30/nation/na-court-movie30 – Cached – Similar
The lobbying manual: a complete guide to federal law governing … – Google Books Resultby William V. Luneburg, Thomas M. Susman – 2006 – Law – 577 pages
21-3.2.1 Corporate and Union Communications Directed to Their Restricted … and unions from using their treasury funds to engage in independent spending on …
books.google.com/books?isbn=1590314166…
[PDF] Soft and Hard Money in Contemporary Elections: What Federal Law …File Format: PDF/Adobe Acrobat – View
This is excellent and is most illuminating:
Where Floyd Abrams has gone wrong: Hillary’s case – Frank AskinSep 8, 2009 … A prohibition on union political spending was not enacted until the … which restricted only corporate speech and exempted labor unions. …
blog.nj.com/…/where_floyd_abrams_has_gone_wr.html – 2 hours ago – Similar
At the time of the Constitution, was there a definition of legal persons? Did it include corporations?
Very depressing!
Make no mistake about it, we have a health care crisis. But few people realize why, and our politicians want to cover it up because they are the source. It isn’t because of ideology or political philosophy or party; it’s because in America we have this thing called campaign contributions. Cash bribes for favors returned. The public wants health care reform and the insurance industry doesn’t, and they gave $46 million in campaign cash and the public gave peanuts.
Who do you think is going to win?
Jack Lohman
http://MoneyedPoliticians.net
So, can we just cut out the middle man, and let a corporation run for President?