They Still Don’t Get It

by David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

Two months ago, the Supreme Court’s ruling in Citizens United v. FEC shocked Americans across the political spectrum in announcing that corporations have the same rights as living, breathing persons to spend money to influence the political process.  Conservative defenders of the ruling are still struggling to come to grips with the ruling’s serious flaws and the lasting damage the Court has done to our democracy.   When faced with the text and history of our Constitution showing that corporations do not have all the same rights that individuals have, and have never been treated as equal participants in the political process, conservatives tend to fall back on two arguments.  First, we hear that the issue in Citizens United is the protection of political speech, one of the most fundamental rights the Constitution gives to individuals, with little, if any, recognition that corporations, in fact, are not individuals.  Second, we’re told not to worry, since it is unlikely that corporations will actually want to flex their muscles in the political process.  The real concern of corporations, so the argument goes, is running their businesses, not playing politics.

The gaping holes in both arguments were starkly on display this week.  First, at a debate on Citizens United sponsored by the Institute for Justice and the Ayn Rand Center for Individual Rights, IJ’s Steve Simpson dismissed the issue of whether corporations have the same fundamental rights as human beings.  In his view, the Constitution obviously protects political speech from censorship, and so he did not have to make the case that corporations had the same constitutional rights as “We the People.”  That issue, he argued, was an irrelevant distraction, nothing more than a “red herring.”  Simpson’s presentation underscored a fundamental point:  defenders of the Citizens United ruling cannot come to grips with the basic facts of our nation’s constitutional history.   At the Founding, when the Constitution was written, and in every era of American history since, it has been common ground that because corporations are artificial entities that receive special privileges, they are subject to greater regulation by the state.  Rather than confront the fundamental constitutional differences between corporations and living, breathing persons, Simpson simply pretended that such differences do not exist.  That obviously won’t cut it.

While Simpson was trying to explain away the fundamental errors in the Citizens United ruling that have left Americans fuming, the press has been busy shedding light on the manifest harms the decision will create for our democracy.  In a much discussed article on the Chamber of Commerce’s plan for upcoming elections, the Washington Post reported that the Chamber was busy gearing up to exercise the new constitutional rights the Citizens United ruling gives it.  Far from being shy about flexing its muscle, the Chamber of Commerce announced that it would spend $50 million on congressional campaigns in 2010, almost double the amount it spent in the last round of federal elections.  Its target – Democratic members of Congress who are pushing for critically needed federal regulations to ensure access to health care, get our financial system back on track, and preserve our environment.  Although there has been a lively debate about whether Citizens United has the specific partisan effect of helping Republicans and hurting  Democratic candidates, one thing is certain: the ruling gives a powerful weapon to those opposed to further regulation of corporations.

Meanwhile, ABC News reported on the release of a comprehensive new study showing that, across the nation, judicial elections are becoming more and more dominated by big money, often fueled by corporations hoping to influence the judges who will decide cases involving their corporate donors.  The most famous example of corporate judge-shopping is the Caperton case, in which Don Blankenship, the CEO of Massey Coal, spent millions of dollars to help elect a State Supreme Court Justice while a $70 million dollar verdict against the company was pending in the state high court.  But, as the ABC News report shows, Caperton is just the tip of the iceberg.  Even before Citizens United, corporations and business groups like the Chamber of Commerce and others were responsible for pouring millions of dollars into judicial election races in Alabama, Wisconsin, and Washington.   The money being spent on  judicial elections – already at record levels – will only increase  now that Citizens United has held that corporate political spending on elections is deserving of the highest levels of constitutional protection.  It is no wonder that, in the wake of the ruling in Citizens United, Justice Sandra Day O’Connor stated her fears that the integrity and independence of elected state judiciaries across the country could be seriously at risk.

Conservative jurists and legal thinkers have long staked their reputations on their alleged fidelity to the constitutional first principles expressed in our Constitution’s text and history.  But today, all we seem to be getting is a results-oriented jurisprudence that turns a blind eye both to first principles as well as to the real and tangible harms to our democracy that will result from giving corporations equal rights to participate in and influence the outcome of elections.