My Case Against Citizens United

In 2010, the United States Supreme Court ruled in the case of Citizens United v. Federal Election Commission (FEC). During the presidential nomination cycle in 2008, partisan organization Citizens United produced a film that lambasted Democratic presidential candidate Hillary Clinton. When Citizens United was legally barred from airing the film within 30 days of the Democratic primaries, the group sued the FEC claiming its First Amendment rights were being suppressed. Citizens United won with a 5-4 vote. The ruling overturned legislation that banned airing certain ads immediately preceding elections, and it prohibited the government from regulating contributions made to independent organizations. In other words, so long as organizations like Citizens United do not “coordinate” with political campaigns directly, the government can no longer restrict contributions made by these organizations. Consequently, unregulated Super PACs have emerged, many funneling millions into political processes and, in so doing, creating communications that differ from campaign ads only by source of origin, not by content and certainly not by effect. This Supreme Court decision was justified by citing the First Amendment; however, corporations are inherently different from people, and the First Amendment should not be extended to them as though these differences and the threats imposed by these differences do not exist. In essence, the dissenting opinion of the Supreme Court in Citizens United, presented by Justice John Paul Stevens, offers a better argument than the majority opinion, presented by Justice Anthony Kennedy.

Arguing in favor of extending the First Amendment to corporations and other groups, Justice Anthony Kennedy makes a fine case for free speech in his writing of the majority opinion. With appropriate focus on pre-election communications, Kennedy argues that the time period immediately preceding an election is critical for political messages. It is this window before voting when efficacy is maximized as a result of increased urgency as the election approaches. By restricting political communications during this period, argues Kennedy, society is denied access to a free marketplace of ideas when such a marketplace would be most useful. Undoubtedly, most advocates of free speech would concede that an open exchange of opinions benefits a democratic society. Unfortunately, Kennedy’s argument does not acknowledge the enormous differences between the opinions of people, who innately have a rich variety of interests, and the opinions that serve the fundamentally narrow interests of for-profit corporations.

In capitalist societies, most corporations exist solely to generate profits, a noble goal if not for the ethical concerns that abound. For example, Wal-Mart executives have been excoriated for allegedly urging their under-compensated employees to apply for financial assistance programs, a clear tactic to defer costs from the corporate giant onto the government. Looking further back, corporate greed inspired President Franklin D. Roosevelt to install a federal minimum wage to effectually balance the interests of the working people with the interests of corporations. Roosevelt’s “New Deal” also set other mandates for employers, including the introduction of child labor protection laws, signifying the conflict between the will of corporations and the will of the people. As should be well understood, the interests of corporations are often incompatible with the interests of the rest of society. We cannot surmise, then, that an open marketplace of ideas will benefit a diverse populace when profit-pushing corporate avatars help influence that marketplace.

To be fair, there are organizations that contribute to the public sphere and to the whole of society in positive ways. Sierra Club, for example, favors politicians that oppose environmental detriments, and its support is presumably lent irrespective of financial gain. Justice Kennedy explicitly refers to Sierra Club and similar organizations to demonstrate the virtue of upholding free speech for non-person entities. While assessing Justice Kennedy’s argument, we must understand why he exemplifies such groups.

As non-profits, organizations like Sierra Club are not designed to indulge in profit-seeking. Knowing this, we can infer that the interests of some incorporated non-profits expand beyond increasing revenue and help represent more varied perspectives. This would seem to dismantle the fears expressed previously of myopic corporations exerting enormous influence. Unfortunately, non-profits also leave unanswered some important ethical questions. Consider that Super PACs are often eligible to file as non-profits, which many have done.1 In doing so, Super PACs deceptively detach themselves from their donors, even though they are merely manifestations of the interests of those donors. This is so because non-profits generally do not have to disclose the identities of the people or the businesses from which their contributions are made. Super PACs registered as non-profits are thus able to secretly take money from any source, including foreign companies with questionable motives. Consequently, the donor lists of many influential Super PACs are protected from public scrutiny at the expense of that very public. Justice Kennedy’s argument does not directly address the distinction between non-profits and for-profit corporations, nor does it address concerns about the lack of transparency that plagues multi-million dollar Super PACs.

Justice Kennedy’s argument, though masterfully conveyed, is most culpable for being unrealistic. His argument applies ideal concepts to an imperfect system. In an idealized society, there would exist an inclusive marketplace in which all opinions are fairly represented and considered. In such a setting, even for-profit corporations could participate without threatening the integrity of the political sphere because all opinions would have the opportunity to influence based on their perceived merits to society. Clearly, this world is hypothetical. It is in this utopia, not our reality, that Justice Kennedy’s argument is most appropriate. We are doing a disservice to society by grossly distorting it as though it were free from imbalance. In reality, ours is a system in which money buys access to mass media, and thus the wealthy invariably have more freedom of expression than do those with less money. Regulations, which Justice John Paul Stevens of the dissenting opinion supports, are necessary to help equalize expression and influence during public election cycles.

Justice Stevens creates a strong argument by calling out the slippery slope upon which the majority opinion unsteadily rests. Writes Steven: “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.” We must consider both arguments and ask ourselves some very important questions: If corporations have First Amendment rights as though they are people, what other rights are they entitled to? Should corporations be allowed to bypass supporting or opposing political candidates completely and just run for office themselves? Should corporations be given a vote during public elections? Rational people are likely to agree that the answer to the last two questions is absolutely not. The issue is that the argument presented by Justice Kennedy does not answer the first question. Instead, it leaves the question lingering uncertainly in the air. In advocating for regulations like those established by the 1907 Tillman Act, Justice Stevens gives us more certainty in answering that question.

Corruption is an underlying controversy in a system devoid of regulation. Quid pro quo, alternatively expressed by the adage “you scratch my back and I’ll scratch yours,” is harmful to democracy whether real or perceived. One illustration of this is voter turnout in the recent presidential nomination processes. From the very first caucus in Iowa, voter participation has been record-breaking on the Republican side as many voters cast overwhelming support for current front-runner Donald Trump.2 It is not a coincidence that voter turnout is high in an election that offers a self-funded candidate, a billionaire alleging that he is impenetrable to establishment corruption. As has been proven by these broken records, voter turnout increases when people believe in the legitimacy of elections. If this is so, then the opposite is also true: Voter turnout is low in elections that lack legitimacy. Even the perception of quid pro quo can deter the public from participating, causing harm to democracy. Justice Kennedy’s position seems to offer little defense against the likelihood of corruption, whereas Justice Stevens’ offers a reasonable solution in the form of regulation.

In fairness, Justice Stevens’ argument missed the mark on one occasion—it did not sufficiently address an excellent observation imparted by Justice Kennedy. The latter rightfully points out a hefty inconsistency in the pre-Citizens United system of regulation. That is, news corporations were immune to certain restrictions simply because they were news sources. Justice Kennedy calls attention to this hypocrisy, pointing out that a “conglomerate that owns both a media business and an unrelated business” would be allowed to use its connection to media to promote its business interests. Meanwhile, a different corporation “with an identical business interest” could not promote its interests to the same extent if it did not have connections to media. Justice Stevens clearly adopts the position in favor of the Federal Election Commission, which advocated for the existing regulations to remain intact. Yet those regulations did not protect society from the biases promulgated by mass media, and Justice Stevens does not aptly address this inconsistency. Overall, however, Justice Stevens provides a stronger argument than Justice Kennedy. As the former writes, Citizens United was a turning point in the conflict between “assertion over tradition, absolutism over empiricism, rhetoric over reality.” Unfortunately, it was a turning point that has allowed corporations to gamble heavily in political decision-making, and We the People are the ante.



Robert Reich Defends Bernie Sanders

Economist Robert Reich explains why Bernie skeptics need not doubt the Senator. Here Reich provides responses to the top six objections to Bernie Sanders’ presidential campaign, and he does so in just three minutes. (Video posted by YouTube channel “Bernie Sanders For President.”)

Bernie Sanders’ Speech at Georgetown University 11/19/2015

Democratic presidential hopeful Bernie Sanders delivered a powerful speech at Georgetown University on Nov. 19, 2015. As we near the Iowa caucuses in just three days, I want to provide a recap of Sanders’ eloquent speech as it reveals a great deal about his platform. The following are main points extracted from the Democratic Socialist’s Georgetown visit. (Video posted by YouTube channel “Separation of Corporation and State.”)

  1. During the Great Depression era, Franklin D. Roosevelt proposed numerous reform measures that were dismissed by opponents as “socialist” ideals. These include the creation of minimum wage, the social security program, unemployment insurance, bank regulations, deposit insurance, 40-hour work-weeks, child labor laws and union rights.
  2. In the 1960s, Lyndon B. Johnson proposed Medicare and Medicaid—health insurance for elder citizens and health insurance for low-income citizens, respectively—both negatively denounced as socialistic by conservative opponents. (Note: The U.S. Census Bureau reported that 15.7 percent of Americans, roughly 49 million people, were covered by Medicare in 2012. That same year, 16.4 percent, more than 50 million people, were covered by Medicaid.)
  3. For the past 40 years, the middle class has been shrinking, taking with it public faith in the political system. An increasingly powerful corporate class continues to hoard the wealth by way of greed-driven practices. The top one-tenth of one percent in this country has nearly as much wealth as the entire lower 90 percent. Moreover, 58 percent of all new income generated in America goes to the top one percent. Median family income is $4,100 less than it was in 1999. We are working harder for less while the money continues to be distributed disproportionately, favoring the corporate elite.
  4. We are the wealthiest nation in the world. Yet, nearly 47 million people are currently living in poverty in the U.S. Over 20 percent of children are living in poverty, which equals more than one in five children. (Sanders pointed out that 36 percent of African-American children live in poverty.) Our childhood poverty rate is currently greater than almost any other developed country on earth.
  5. 29 million Americans do not have health insurance while even more are under-insured. One in five Americans cannot afford their medical prescriptions.
  6. We have more people incarcerated than any other country on earth. (As Sanders points out, we have more incarcerated citizens than communist China, which has a population four times that of the U.S.) We spend $80 billion every year incarcerating our citizens.
  7. In 1944, FDR gave a speech detailing the “second Bill of Rights.” This speech presented the idea that freedom cannot be acquired without economic security. Roosevelt urged that Americans had economic rights—not privileges—that ensured adequate paying jobs, adequate sustenance, and adequate time off from work; the right to live and work in atmospheres devoid of dominating monopolies; the right to adequate housing; and the right to healthcare. Sanders reiterates that people are not truly free when these rights are not recognized.
  8. Democratic socialism means we must reform a corrupt political system that fails those who are not wealthy. A system which, for example, allowed Wall Street to spend $5 billion in the 1980s to lobby away government regulations. The same system invested trillions in bailing out Wall Street ten years later when reckless greed (including illegal activities) resulted in economic crises. While Wall Street CEOs have circumvented legal penalties for destabilizing our economy, nonviolent offenders (for example, young people caught possessing marijuana) are routinely subjected to incarceration and lifelong criminal records.
  9. Democratic socialism means reforming a system that offers huge tax breaks to the extremely wealthy, supports corporate welfare, and enables trade policies that benefit wealthy corporations at the expense of working Americans.
  10. Democratic socialism is not communism. It means that the working Americans who create the wealth in this country should see more of it. Private enterprise is important; however, it should emphasis domestic job opportunities, rather than outsourcing to and exploiting developing countries.
  11. Our current healthcare system is the most expensive per capita than any other nation. A universal single-payer healthcare system would ultimately save money and provide economic boosts in addition to providing healthcare, a human right, indiscriminately.
  12. We must invest in higher education with the same voracity that we have historically invested in incarceration.
  13. We must require a living wage for workers to ensure that anyone working full time will not be impoverished.
  14. We must pass legislation that honors family values by allowing paid family and medical leave for working Americans.
  15. We must not allow the fossil fuel industry to diminish the quality of our planet.
  16. We must not use war as a first resort, but as a last. (Sanders stated he will not hesitate to go to war in defense of the country, but he will not take our nation to war under false pretenses and without an end in sight.) We should also remember that history confirms the challenges of overthrowing regimes in turmoil-stricken countries.
  17. Islamic extremists must be combated primarily by Muslim nations with the backing of America and other allies. Currently, many Gulf-region nations have contributed little to help combat ISIS and that must change.
  18. Entrepreneurialism and innovation should be encouraged and rewarded; however, “greed for the sake of greed” should not be supported by public policy. The wealthy must pay their fair share.
  19. In the last election, 63 percent of Americans did not vote, including 80 percent of young people. While it is easy to avoid involvement in a political system so clearly flawed on either end of the spectrum, boycotting the polls will simply support the status quo.