Overturning ‘Citizens United’ needs united citizens

Bill Knight column for Mon., Tues. or Wed., Jan. 26, 27 or 28

Eight protesters on Wednesday (Jan. 21) were arrested and charged with causing a disruption in the U.S. Supreme Court, where five years ago to the day the Court in a 5-4 vote in Citizens United v. Federal Election Commission caused much more disruption to democracy by allowing unlimited campaign spending by corporations and other associations.

Illinois poet-biographer-journalist-troubadour Carl Sandburg wrote, “I'm an idealist. I don't know where I'm going, but I'm on my way,” and though I can identify, optimism about overcoming the influence of money in politics and government is hard to feel.

Corporations aren’t mentioned in the Constitution, although Thomas Jefferson, referring to corporations as “artificial aristocracies,” once sought a declaration of “freedom of commerce against monopolies.” But other Founders felt it unnecessary since corporations then were unpopular and chartered by states, which then required corporations to have public purposes (providing education, building roads); to limit activity to that purpose and prohibited them from buying other corporations; to renew charters after 15 years or so; to treat farmers, small businesses and suppliers responsibly; and to refrain from lobbying or political campaigning.

But after 1868’s ratification of the Fourteenth Amendment (providing equal protection of the law to former slaves – all people), corporate lawyers began to assert that corporations weren’t artificial things, but the same as human beings.

Then, as documented in Thom Hartmann’s book “Unequal Protection,” on May 10, 1886, a clerical error first made corporations “people,” mistakenly setting a precedent for case law. In a tax case, Santa Clara County v. Southern Pacific Railroad, about that county’s power to tax some railroad fence posts, the court ruled in favor of the railroad. However, it held no open-court discussion about personhood, wrote no opinions about it, and rendered no judgment on it. Nevertheless, court reporter J.C. Bancroft Davis (an ex-railroad official), wrote a headnote summarizing the decision saying, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny any person within its jurisdiction the equal protection of the laws.”
Davis later asked Chief Justice Morrison Waite whether that was correct and Waite responded, “We avoided meeting the Constitutional questions.”

In Citizens United, the Court held that the First Amendment forbids the government from restricting independent political expenditures. Floodgates open, the Court last April in McCutcheon v. FEC struck down limits on the amount individuals may contribute during a two-year period to federal candidates, parties and Political Action Committees combined (also 5-4, also on First Amendment grounds); in December, Congress passed a $1.1 trillion spending bill including a provision to let wealthy Americans give more money to political parties. Before, individuals could donate up to $32,400 to the Democratic or Republican National Committees. Now, they can donate 10 times as much, plus more than $1 million to a party’s various accounts.)

If a business owner defrauds, kills, pollute, etc., they can be jailed. But if corporations do, stockholders or management aren’t imprisoned. So, with weaker state-charter enforcement, corporations can live forever, don’t need clean environments to function, and have no moral restraints since their only goal (their “fiduciary responsibility”) is to keep profits flowing to shareholders.

The late Illinois author David Foster Wallace in “The Pale King” wrote, “Corporations aren’t citizens or neighbors or parents. They can’t vote or serve in combat. They don’t learn the Pledge of Allegiance. They don’t have souls. They’re revenue machines. With corporations, I have no problem with government enforcement of statutes and regulatory policy serving a conscience function.”

Without regulations, the conservative Koch brothers and casino billionaire Sheldon Adelson hold “auditions” for possible GOP candidates, and progressive hedge-fund billionaire George Soros a decade ago pledged $25 million to groups dedicated to removing then-President George W. Bush from office (although his contributions fell off since). Generally, improvements don’t happen if corporations and their money block them.

There is popular support to undo Citizens United, according to surveys by Peter Hart polling and last spring by Greenberg Quinlan Rosner Research. Both found about 80 percent of Americans oppose the ruling – including 72 percent of Republicans. GOP foes of Citizens United include nine members of Illinois’ House and two Illinois State Senators, plus John McCain, Olympia Snowe, Buddy Roemer, Jon Huntsman and Ron Paul.

Some advocate a constitutional amendment restoring campaign finance rules, but that would require support by two-thirds of both houses of Congress and the legislatures of three-fourths of the states.

Unfortunately, popular will and reason matter less than power, and money may not be speech, but money is still power. Perhaps more disruptions and more arrests would help. As Sandburg said, “I’m an idealist. I don’t know…”

[PICTURED: Photo from sanders.senate.gov.]