People For the American Way

Edit Memo: The Citizens United Decision and How to Fix It


Contact: Drew Courtney or Josh Glasstetter at People For the American Way

Email: [email protected]

Phone Number: 202-467-4999

To: Interested Parties
From: Michael B. Keegan, President, People For the American Way
Date: January 26, 2010
Re: The Citizens United Decision and How to Fix It

Last week, the United States Supreme Court upended our political system with its decision in Citizens United v. FEC. The decision, in which the Court ruled that Congress was prohibited from limiting the influence of corporations in elections for public office, represents an unprecedented attack on the core democratic values of the Constitution, and all of us, progressive, centrist and conservative alike, should be deeply concerned about its implications.

The decision overturns more than a century of laws regulating the influence of corporations in elections. Not only is the decision a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They can not vote, they can not hold office, and they should not be allowed to pour billions of dollars into our system of government.

Thanks to the Supreme Court, though, they’ll be able to do just that. In fact, even foreign corporations may well be able to spend unlimited sums of money to support or defeat candidates-something flesh-and-blood non-citizens are still banned from doing.

If Americans are frustrated now by the corporate influence in the system, wait until they see what’s next.

In the next few months, for example, Congress will be asked to enact tough new regulations on the banking industry-a recommendation supported by experts across the ideological spectrum. The legislation might be good for the American people, but bad for big banks. For a given Congressperson, a vote against the legislation might lead to some angry phone calls from engaged constituents, but a vote for the legislation could unleash tens of millions of dollars of attack ads. If that number sounds exaggerated, consider that Goldman Sachs posted annual profits of $13.4 billion dollars on the same day the decision was handed down.

Can anyone honestly claim that the threat of an electoral avalanche won’t influence the decision?

The results will almost surely be disastrous. Elected officials will swiftly become answerable to giant corporations instead of to ordinary voters. At the moment, pundits predict that the decision will cut against Democrats, but in the long run it won’t be a left-right issue. Religious conservatives’ efforts to oppose gambling will be overwhelmed by gaming interests, just as progressives’ calls for climate change laws will be attacked by Exxon Mobil.

The decision’s defenders, most notably Justice Kennedy himself, have painted this ruling as a victory for free speech rights. It’s no such thing. Far from being a vindication of the First Amendment, the ruling is a perversion of the right to free speech. In Citizens United, The Court has profoundly devalued the individuals’ First Amendment rights.

There are three ways to repair or mitigate the impact of the Court’s ruling: change the law, change the Court, and change the Constitution.

Statutory fixes can’t completely repair the damage caused by this decision, but they’re important steps that can make a difference. Strengthening disclosure laws, limiting the power of federal contractors and foreign corporations, requiring shareholder approval of political expenditures and enacting a public financing system are all steps in the right direction.

Changing the Court is another imperative. In the coming years, Justices will leave the Court and the President will nominate replacements. It’s absolutely crucial that, whoever the president, Americans demand he or she nominate Justices who put the rights of individual Americans above the rights of corporations.

Perhaps most importantly, the only complete solution is to enact a Constitutional Amendment restoring Congress’s ability to limit corporate influence on elections.

As the leader of an organization dedicated to defending the Constitution and, especially, the First Amendment, this isn’t a solution that we should embrace lightly. But such a disastrous decision by the Supreme Court requires an appropriate response.

Make no mistake, we face an uphill battle. Amending the Constitution is deliberately difficult, but our nation has risen to the challenge in the past. At this historical moment, with anti-corporate sentiment at a possibly unprecedented level, the time is ripe to take on this issue and to win. A Constitutional Amendment to fix this decision, in addition to being good policy, may be a useful tool for leaders of both parties to show that they stand for people before powerful corporate interests.

In the coming years, we hope that you’ll join us in this fight and work to ensure that ours is truly a government of, by and for the people.