Corporate Citizens United

January 31st, 2010

As reported in Court rejects corporate spending limits (Washington Post 1/22/10), and The Supreme Court’s Citizen United Decision Is Terrifying (Huffington Post 1/22/10), last week the Supreme Court overturned decades of lawmaking limiting corporations’ ability to fund campaign ads. Here are some notable quotes on the subject, followed by my short comment (in verse) a longer prose discussion, videos, other information sources, and a petition to protest the Supreme Court’s action.

“For too long, some in this country have been deprived of full participation in the political process.” – Senate Minority Leader Mitch McConnell
“It’s a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. – President Obama
The notion that John Roberts and his Court were careful proceduralists who look to original intent and only went incrementally is completely out the window. This is one of the most radical decisions in a long, long time. – Newsweek commentator Howard Fineman on Countdown 1/20/10
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.  (Applause.)  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  (Applause.)  They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.” – President Obama, State of the Union message, 1/27/10.
“We the Corporations of the United States, in Order to form a more purchased Union, establish Justice, insure domestic Corporate Tranquility, provide for the Corporations defense, promote the general Welfare of the Corporations, and secure the Blessings of Liberty to our CEO’s and our Corporate Posterity, do ordain and establish this Constitution for the Corporations of America.” – Comment by sprtakis69 to Citizens United: The Problem Isn’t the Law, It’s the Court (Huffington Post 1/21/10).
Screwed us.

The definition of an activist judge is to overturn laws and lower court rulings. Ironically, Republicans called Sonia Sotomayor activist for upholding lower court decisions, and yet many (John McCain and some other excepted) support the Supreme Court’s ruling to overturning the entire legislative and jurisprudential structure of corporate campaign finance established in ’07 (no, not 2007… 1907). With this ruling, the court also overturned the bulk of the bipartisan McCain-Feingold Act and an earlier Supreme Court decision upholding it just six years ago (so much for stare decisis). That’s over 100 years of legislation and precedent. To top it off, the Court committed the ultimate activist act: it could have overturned the lower court’s ruling with a narrow ruling that left most of the law and precedent untouched. Instead, it ruled broadly. And honestly: does anyone (besides those five judges and the US Chamber of Commerce) really think the problem with America is that corporations don’t have enough political power?

So, the Court overruled 100 years of mutually supportive Supreme Court decisions, plus an Act of Congress (McCain-Feingold), plus a number of state regulations on campaign finance. If the Court had wanted to, the Court could have instead overruled what has been referred to as possibly its “worst decision ever,”  Santa Clara County vs. Southern Pacific Railroad, which in 1886 granted corporations “personhood” under the 14th Amendment. Given the choice between over-ruling the former body of jurisprudence and legislation and the latter nonsensical case, the Court (by a margin of one vote) unfortunately chose the former.

But if the Court had wanted, it wouldn’t have needed to overrule anything. It could for example have held that a non-profit corporation like Citizens United formed for the purpose of collecting and spending money to promote a political view was different from a regular for-profit corporation, and that the former’s “free speech” could not be limited, while the latter did not have free speech rights. Or, it could have held that Citizen’s United was a media company (like newspapers and television networks) and that campaign finance restrictions were therefore not applicable.

How can corporations be considered “people”? It’s true, they are ultimately owned by people, but even that is a tenuous and complex link, since many corporations are owned by holding companies, which may in turn be owned by other corporations, any of which could be foreign corporations and/or foreign citizens, to which rights under the US Constitution would not apply. And even if one ignores that complexity, how does limiting corporate speech affect a corporate owner’s or a corporate employee’s right to say whatever he or she wants. If they want to speak, why can’t they do that in their own persons (at their own expense), rather than through corporations.

As Keith Olbermann points out in his scathing comment, the ruling will at first appear to benefit the GOP (and particularly it’s extremist fringe), but eventually will leave them behind as well, and strike at the very roots of our two-party system. Now, there are those who don’t like our two-party system to start with, but no one that I know of has publicly advocated replacing it with a uni-party corporate one.

As many commentators have pointed out, it’s going to be hard to do anything about this decision legislatively, since the Constitutional infirmity is a basic one, and any attempt to limit the decision’s scope will probably be subject to the same Constitutional infirmity. I think that the only ways to deal with this decision are as follows (some of which others have proposed and some of which I actually thought of myself):

  1. Require full and effective public disclosure (the opinion actually specifically says that this is Constitutional). By “effective,” I mean disclosure immediately (or soon) after the fact, not 6 months or a year later.
  2. Require all political advocacy expenditures to be approved by the shareholders. This would accomplish several things, including (a) increasing transparency, (b) allowing shareholders who do not agree with the corporations proposed position to vote against the measure, and (c) giving public interest groups and concerned citizens another avenue to influence and protest special interests by buying shares and attending shareholder meetings.
  3. Since political advocacy spending is not tax deductible for individuals, treat corporate political advocacy spending as a  taxable (and not deductible) distribution to the shareholder. That would put corporations on the same playing field as individuals in terms of tax treatment, and make corporate spending for political advocacy the functional equivalent (which it is) as distributing profits to individuals which then use those profits to invest in political campaigns. It would equitably force both shareholders (and hence the corporations) to bear the tax cost of their actions, and would increase shareholder sensitivity to the use and scope of political advocacy.
  4. Subject all corporate spending to the same truth-in-advertising requirements that corporations are required to observe. If corporations aren’t allowed to advertise that their product will cure cancer and make your teeth whiter without some basis in fact, then they shouldn’t be able to advertise that the healthcare bill includes death panel reviews for senior citizens.
  5. Do not allow corporate contributions by government contractors.
  6. Requiring CEO’s to appear in ads that their corporations place saying “My name is XYZ and I approved this ad.”
  7. Subject corporate political ads to public interest lawsuits, brought either by concerned citizens, Federal and State governments, or all of the above. Just like the tobacco industry was ultimately found guilty of having knowingly promoted and sold a product that its own and other scientists had strong evidence was harmful, global warming deniers will eventually (one hopes) be held responsible for their own falsified science. Or, at the least, the threat of such action might (hopefully) keep them from taking spectacularly unsupported statements.

Ezra Klein, appearing on Countdown on 1/27/10, made a hopeful point. He thinks (or hopes) that the extremeness of the Supreme Court decision will motivate politicians and the public to do something about our dysfunctional electoral finance system.

For more commentary, read Judicial Activism Inc. (Washington Post 1/22/10), these letters to the editor (Washington Post 1/23/10), and Arming for an ad war (David Broder, Washington Post 1/31/10). For more general information and to take action, visit and Click on the icon below to sign another petition and get a free protest bumper sticker, and  please sign this petition to call for legislation to keep corporations from controlling our politics.


Here’s Keith Olbermann’s report on 1/21/10, including Keith’s Special Comment and interviews with Newsweek’s Howard Fineman, George Washington University Prof. Jonathan Turley, and Rep. Alan Grayson, who has introduced a number of bills to address the ruling).

Here’s the Daily Show’s report.

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Supreme Corp
Daily Show Full Episodes Political Humor Tea Party

And here’s Stephen Colbert.

The Colbert Report Mon – Thurs 11:30pm / 10:30c
Citizens United v. Federal Election Commission – Jeffrey Toobin
Colbert Report Full Episodes Political Humor Fox News
The Colbert Report Mon – Thurs 11:30pm / 10:30c
The Word – Prece-Don’t
Colbert Report Full Episodes Political Humor Fox News
The Colbert Report Mon – Thurs 11:30pm / 10:30c
Corporate Free Speech – Chris Dodd
Colbert Report Full Episodes Political Humor Fox News


(Some links and video added after posting.)

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9 Responses to “Corporate Citizens United”

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