The hard truth about Citizens United

On the second anniversary of a terrible decision, every proposed solution has a downside.


The movement to overturn the Supreme Court’s controversial Citizens United ruling and confront the doctrine of “corporate personhood” stands at a perilous crossroads.

Across the country, two distinct strategies are converging on Congress. More than a million people have signed online petitions. State legislators, city and township governments, Democratic Party groups and unions have sponsored and passed measures in 23 states demanding that Congress pass a constitutional amendment to reassert and elevate the political speech of individual citizens and roll back the growing legal privileges of corporations.

The two approaches can be seen in the protest signs and sound bites proclaiming, “Money is Not Speech” and “Overturn Corporate Personhood.” But these slogans are not calling for the same remedy, especially when transformed into legal language in 10 proposals that have been introduced in the current Congress.

The first would address campaign finance setbacks in a 35-year line of Supreme Court rulings, including the Citizens United ruling in 2010, which deregulated campaign spending by corporations and unions. The second would go further and seek to revoke the status of corporations as persons under the Constitution, rolling back more than a century of Supreme Court rulings.

These two approaches expose an emerging split among progressives with deeper problems that go beyond the steep if not improbable political climb required to adopt any constitutional amendment: passage by two-thirds of Congress followed by ratification by three-quarters of state legislatures.

With a few exceptions, the growing movement to overturn Citizens United and revoke corporate personhood is not being taken seriously beyond America’s liberal communities. The guardians of American capitalism—the U.S. Chamber of Commerce and Republican National Committee—do not even feel a need to attack it, unlike recent barbs aimed at the National Popular Vote campaign to reform the Electoral College.

Corporate America’s assessment that this activity is not yet a serious threat to their power is also shared by another key sector of the progressive spectrum. Many of the country’s top liberal constitutional scholars have been silent, as this bandwagon has gathered momentum. They sympathize with its goals but think its champions are not only overpromising to grassroots supporters but have not thought out what they want Congress to do. Nor do they think the frontline voices have done a good job explaining what is at stake beyond hurling bumper sticker slogans. In other words, they reach the same conclusion as America’s corporate titans: this clamor is not yet poised to upend the law behind America’s political system.

“I am really excited about the fact that there is so much public interest in this stuff and on the right side—the visceral sense that the Supreme Court has got it wrong,” said Dan Tokaji, co-editor of Election Law Journal and an Ohio State University professor of law. “But at the same time I’m uncomfortable with the bumper sticker-like critiques. It’s not like there’s a magic bullet. Every solution has a downside. It’s a matter of weighing costs and benefits. And that is especially true in campaign finance reform.”

“I do think the body of law from Buckley through Citizens United to Bennett needs readjustment, and I helped Rep. Donna Edwards draft one potential constitutional amendment,” said Harvard Law School’s Laurence Tribe, one of the country’s leading constitutional scholars and a man liberals lobbied President Clinton to appoint to the Supreme Court. “But most of the constitutional amendments floating around seem to be seriously misguided; they would do both too much and too little.”

Such skepticism is not what amendment proponents, particularly those favoring the most sweeping ideas, believe or want to hear. They say there is a danger in doing too little; that a populist campaign is needed and working; and that an amendment reserving constitutional rights only for natural persons is on par with the post-Civil War amendments ending slavery and protecting former slaves as citizens.

“We are doing movement building in order to win a constitutional amendment within a decade,” said David Cobb, the 2004 Green Party presidential candidate and board member of the Move To Amend coalition, which has led much of grassroots organizing. “We have a meta-perspective about what is going on, but we also have a sense of movement history; in recognizing what it takes to actually get a lot of people in motion demanding systemic change. Our call is no more radical or will be no more difficult than the abolitionist movement, the women’s suffrage movement, trade union movement or the Civil Rights movement.”

But liberal skeptics also include groups that have been helping local governments adopt laws subordinating corporate rights to community and individual rights in a range of environmental fights. These ordinances are below-the-radar equivalents to the recent Montana Supreme Court decision that upheld its century-old ban on corporate electoral spending. They all make a “compelling” claim, the highest standard in constitutional law, to affirm democratic rights.

“They’re good people and their heart is in the right place, but they’re not being helpful—as a matter of fact, they are doing damage,” said Ben Price, project director of the Community Environmental Legal Defense Fund (CELDF), which has helped 130 municipalities in a half-dozen east-central states–—including the city of Pittsburgh, Pennsylvania–local anti-corporate ordinances in environmental fights. “They won’t bring the outcomes that are needed.”

“We don’t think that is the right strategic move at this time because it will be overturned,” Cobb said, when asked why his coalition’s members do not pursue CELDF-style changes in law, citing his own experience in Humboldt County, California, where a county ordinance was reversed in federal court. “And why will it be overturned; because corporations have constitutional rights, according to the federal district courts and U.S. Supreme Court. The ultimate win has to result in a constitutional amendment.”

This debate—to go narrow or to go big; to focus in Washington or in the states; or what is the relationship between divergent strategies—has not been heard on the airwaves as Americans see the big-spending excesses in the first 2012 presidential contests and as many liberal public interest groups focus on the anniversary of the Citizens United ruling. But it is a vast middle ground that is not esoteric or fruitless.

It is not difficult to understand the substance of the law or the choices before Congress. Do people want to see candidates like Newt Gingrich knocked from the lead in Iowa with millions of dollars in largely negative TV ads from super PACs, which Gingrich decried until a billionaire friend gave $5 million to a pro-Newt super PAC before the upcoming South Carolina primary? Do they want to see public financing as a way that non-wealthy candidates can run for federal office? Do they want to see corporations banned from spending money on ballot measures in states like California? Do they want to see limits imposed on all political donations and expenditures to prevent corruption? Do they want to see all money—above the smallest donations—flowing in and out of campaigns and electioneering reported in a timely way?



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BY STEVEN ROSENFELD