Five Years After the Citizens United Decision: Do the People or the Major Contributors Rule?

Plutocracy and its Discontents

Shortly after the 2014 mid-term election, Fred Wertheimer, President of the reform group, Democracy 21, wrote in his Huffington Post article, “A Call to Arms“, that “In 1789, the Founding Fathers created a constitutional system of government by the People. In 2010, five Supreme Court Justices – Roberts, Kennedy, Scalia, Thomas and Alito – changed it to a constitutional system of government by millionaires, billionaires and corporations.” Wertheimer’s article portrays a new system where the systemic corruption of elections has been defined away so that the corporate CEOs and the plutocratic few who fund elections exercise so much influence that they, not the people, rule. Referring to the congressional elections he wrote:

Never has so much money from so few people been so pervasive in our congressional elections. Never has so much money in huge contributions, corporate funds and secret donations flooded our congressional elections and created so much opportunity for buying and selling. Never has the foundational principle of one person one vote been so undermined by a Supreme Court majority that apparently believes money is king.

On January 21, 2010, five years ago, the conservative majority on the Supreme Courts ruled in Citizens United that corporations, as “artificial persons” had the right to make unlimited expenditures to fund the federal election campaigns of politicians they supported, as long as that money went through an allegedly independent non-profit political committee. Such non-profit committees have since come to be known SuperPACs.

The conservative majority on the Court maintained that the Fourteenth Amendment forbids government from taking away the right of all “persons,” including corporations as artificial persons, and that making huge financial expenditures or donations is constitutionally protected free speech. Since these justices view “independent committees” as totally separate and independent from the candidate, Citizens United also allowed unlimited funding by wealthy individuals to these “independent” committees. However, the past five years have clearly demonstrated that most real world SuperPACs have close relationships to the candidates they support. In some cases, they are even led by a candidate’s former business associates or even relatives. It has also become clear that the Federal Election Commission, by law split equally between Democrats and Republicans, has rarely acted to enforce meaningful independence.

In the 2012 national election campaign, the last presidential election year, each candidate for President spent more than a billion dollars. In that year, the Congressional elections cost an additional four billion dollars. Most of this money paid for expensive sophisticated and highly adversarial commercials on television and radio in which the real issues facing the nation were dodged.

In their insightful 2013 book, Dollarocracy; How the Money and Media Election Complex is Destroying America, Nation Magazine authors Robert McChesney and Robert Nichols examined the how the nexus of big money contributions and electronic media contaminates US government, laws and policies in a way which does considerable harm to the vast majority of Americans. At the same time, those who cannot make major contributions come to feel powerless. McChesney, in an interview with Bill Moyers, stated that “Dollarocracy means the rule of the dollars; One dollar, one vote. Those with lots of dollars have lots of power. Those with no dollars have no power.” If we ask what real damage is done by a government which represents plutocratic and corporate contributors more than average voters, we need only reflect on policies that led to America’s numerous recent wars, the Great Recession of 2008 and related unemployment, the huge and increasing national debt or Trade Pacts which transfer rights from sovereign powers to multinational corporations. Most ominously, donations and lobbying by fossil fuel companies stand in the way of meaningful solutions to the existential threat humanity faces due to global warming. How much did the framing of federal laws and policies which led to these crises have to do with the sources of the billions in donations from persons, corporations and interest groups relegating the public interest to a secondary concern?

A recent major study by Professor Martin Gilens of Harvard University provides evidence for the view that ordinary voters have little or no influence of policy. In his 2012 book, Affluence and Influence, Professor Gilens found that, in the twenty five years before 2002, only the opinions of the affluent had a major impact on which policies and laws the federal government actually adopted. He found that, unless their opinions were the same as those of the affluent, neither the opinions of middle class citizens nor of poor citizens showed any correlation with the laws and policies government adopted on major issues. Since the Citizens United and McCutcheon decisions, the super-rich and those who control corporate donations have gained far more financial influence over the “gratitude” of candidates and office holders at all levels of government.

Has the Supreme Court Legitimized Systemic Corruption?

On April 2, 2014, in their McCutcheon ruling, the Supreme Court’s majority overturned aggregate limits in America’s federal elections. In so doing, the conservative justices seemed to ignore the experience of Congress on what constitutes corruption, while delivering even more power to billionaires linked to corporations seeking the gratitude of legislators and elected office holders. Their decision defied a common sense view of corruption.

In the majority opinion, Chief Justice Roberts wrote that “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Citing the Court’s 2010 Citizens United decision, Justice Roberts stated that “ingratiation and access … are not corruption” and that Congress may limit donations and spending to prevent direct “quid pro quo corruption” or its appearance only. The Roberts Court thus defined away systemic corruption while recognizing only the extremely rare event called a “direct quid pro quo,” meaning the overt exchange of money for a specific official act.

Further narrowing the government’s tools to fight systemic corruption, Roberts’s McCutcheon opinion states “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” In his view, only direct bribes may be restricted, even though such bribes were already illegal. Again the Court said this was to protect the freedom of speech of the funders of political communications.

In his dissent to McCutcheon Justice Breyer points out, however, that “just as troubling as classic quid pro quo corruption is the danger those office-holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the office-holder.” Breyers’ view matches the common sense understanding of corruption shared by millions of Americans. Generalized corruption rarely requires direct stated agreements.

Turning the First Amendment on Its Head

In their Citizens United ruling, Court used First Amendment’s protection of free speech in a way that took away vital governmental tools passed by congress and signed by President, replacing them with court-made doctrine giving a “right” of unlimited contribution (via “independent committees”) to Corporations and the billionaires with business before the elected officials who benefit from those contributions. It is puzzling that those five justices see this as “speech” rather than corruption.

To better understand their logic, in 2013, I interviewed Trevor Potter; one of the most recognized experts in US campaign finance law. Potter explained that the First Amendment was passed, in part, because the English, before the Revolution, had charged those who spoke against the Crown with sedition and then took them off to jail. The most apt modern parallel would view the First Amendment as protecting the speech right of protester and dissident opposing the policies of our government today. The troubling treatment by police of “Occupy Wall Street” and anti-war protesters raises questions whether their First Amendment rights have been protected. However, turning the concept of free speech on its head, the Court has created a right for super-rich and corporations to write million-dollar checks to induce legislative gratitude which seems to express itself in the laws we live under.

According to Trevor Potter, the Court effectively rejects “the equality argument in which you have a meaningful one person, one vote, relationship. The Court flatly rejects the assertion that donations can be limited to “level the playing field” between the average individuals and those who can make major donations.

Robert Weissman, the President of the reform group Public Citizen stated his belief that in Citizens United and subsequent Court rulings created a system that was not a democracy but a plutocracy. Shortly after the McCutcheon ruling, Weissman stated, “No matter what five Supreme Court Justices say, the First Amendment was never intended to provide a giant megaphone for the wealthiest to use to shout down the rest of us.”

Forebodings About the Undemocratic Nature of “Judicial Review”

In his book How Democratic is the American Constitution? (2001), Professor Robert A. Dahl, a prominent US political scientist, openly worried about the undemocratic nature of the Supreme Court’s self-created power to override legally enacted law. This was not a power given in the Constitution itself, but was created by the 1803 Supreme Court decision Marbury v. Madison, a decision Thomas Jefferson spoke out against repeatedly throughout his life.

In 1815, Jefferson wrote that as to “the question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”

Jefferson foresaw that, through manipulative interpretations, five court justices might distort both law and the Constitution. About the theory of judicial review, Jefferson wrote that “The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Shortly after Marbury v. Madison, Jefferson wrote that the Court could use its self-created judicial review powers over time to take an almost autocratic role. In a letter to Abigail Adams in 1804, Jefferson wrote:

The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

Regarding what a democracy is, Professor Robert Dahl made it clear that, to be even an imperfect democracy, a government must embody the principal of political equality. He wrote that in a democratic system, we need a “moral judgment that we ought to regard the good of every human being as intrinsically equal to that of another” and that those making governmental decisions need to give “equal consideration to the good and the interests of each person.”

Like Jefferson, Professor Dahl believed that the Supreme Court’s power to declare existing law unconstitutional gave five unelected Justices the power to use their own values and biases and might be seriously misused. In light of decades of Supreme Court decisions which may have undercut the very basis of democracy, we as citizens should ask whether the court’s rulings that “money is speech” and that “corporations are people” constitute such serious distortions. Jefferson had his grave concerns that a Supreme Court majority acting as a political faction might misuse judicial review and distort the Constitution. We must ask whether unelected Supreme Court majorities over time have converted America’s imperfect democratic republic into a pluto-corporate republic.