With the advent of the 2018 midterm elections, a great deal of media attention will focus on the effect of PAC spending upon all levels of government races. A recent Wisconsin supreme court judgeship was the subject of spending by the NRA. At the same time, the appointment of John Bolton as national security adviser raised ethical concern about a PAC in his name that received funding from the Mercer Family and employed Cambridge Analytica in several campaigns. The world of funding for PACs is very dark and protected in most instances. However, PAC funding and accompanying protections of donor names and sources relates to the Supreme Court decision of 2010. Some may recall how President Obama called out the decision during a State of the Union address, causing Justice Alito to shake his head in disagreement. It’s time for a refresher about this judicial principle concerning money and elections.
The organization Citizens United, girt snugly and deeply on Pennsylvania Avenue within the D.C. Beltway, advocates that it is Devoted to Restoring Our Government to Citizen Control. Now, “citizen” as commonly understood means a person legally recognized, native or naturalized, of a state who has sworn loyalty to it, enjoys the protections thereof, and acknowledges the duties therein. One may trace a reasonably direct line in Constitutional phraseology from “people” to “citizen” and “person” to appreciate their meanings.
At the same time, “corporation” is not a term in the Constitution and is generally defined in the dictionary as an association of people who, for policy reasons, cannot be sued individually; nor may a corporation be imprisoned, meaning that owners, i.e. investors or shareholders, risk only as much as they invest. The path to corporate dominance in American politics started early in the nation’s history.
From 1607, when the Virginia Company established the Jamestown colony, corporations have been inextricably embedded in American life. …Corporations have rarely won rights by trumpeting their own importance or openly arguing for civil rights. Instead, over generations, they have succeeded by claiming that corporate rights are necessary and useful tools for vindicating the rights of others—of people. …The problem was that the Constitution gave access to federal court only to “citizens.” Instead of arguing that a corporation is a person,…[the corporations] insisted that the rights of the owners—an association of people—would be trampled on if the [corporation] couldn’t be heard.
—Zephyr Teachout, New York Times Book Review of We the Corporations by Adam Winkler, March 5, 2018.
Beginning in the 1850s and for over 100 years, corporations were prohibited from contributing to federal political campaigns and, later, government contractors were subject to the same restriction.
Then came Citizens United v. FEC in 2010 in which SCOTUS (in a 5–4 decision) unraveled virtually all limits on corporate spending by extending the rights of a person or citizen to corporations as a matter of political free speech, endowing and equating the associated and collective entity with that of individuals. Or, as some critics say, “money equals speech.” The text of the decision references the phrase “associations of citizens” as the constituency of corporations. Justice Anthony Kennedy wrote:
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. [emphasis added].
SCOTUS seems to have overlooked the fact that corporations are not wholly constituted of citizens of the U.S. since foreign individuals and corporations may also be investors and/or shareholders, although forbidden from making political contributions directly or indirectly. In this way, the libertarian orthodoxy of SCOTUS in extending this right to corporations equal to the right of a single person or citizen has only opened the door for further mischief.
Perhaps the most frightening aspect of the decision is the effect such unfettered free speech may have upon voting and who may be elected or what policies influenced. The responses of the governors of Indiana and Georgia to the messaging from corporations in vetoing “religious freedom” laws is an example of the power of corporate broadcasting in the political sphere. This phenomenon is greater than “simply engaging in political speech.”
Although government contractors are barred by law from making such contributions, that restriction is not likely to be sustained, given the broad sweep of the Citizens United decision. In that circumstance, taxpayer funds could be reused or repurposed as political contributions protected by the First Amendment.
It is also possible that foreign individuals and corporations could simply and legally associate in any state without including American citizens to pursue this newly created right.
Since no one of us will ever have a voice louder than the one that can be purchased by a corporation or an association of citizens, perhaps the older rule prohibiting corporations from making political contributions is the fairer and more equitable one. Only citizens may vote in U.S. elections, or, conversely, noncitizens may not vote in U.S. elections. Why, then, permit noncitizens to buy free speech in elections, thereby influencing the outcome of those elections?
Ellen Weintraub, the sole Democratic member of the semi-permanently-deadlocked Federal Election Commission, has indicated that she was prepared to propose new rules in this regard. Weintraub also has argued that states can take action with respect to campaigns and expenditures under their jurisdiction “to insure that those corporations are indeed associations of American citizens.” Wow! There’s a suggestion that should be heard in Richmond.