Citizens United: Free Speech or Democracy for Sale? | Guest Opinion
The Supreme Court’s landmark Citizens United decision in 2010 left more than a few people scratching their heads: Corporations are citizens?
That 5-4 ruling found the 2002 McCain-Feingold bill violated the free speech clause of the First Amendment by restricting political spending by corporations, unions and other associations. Such spending is now unlimited.
Polls showed in 2020 that 60 to 80 percent of Americans — Republicans and Democrats alike — opposed the decision. And political spending has snowballed.
Why do businesses deserve the right of free speech? Starting in the 1970s, the Supreme Court relied on the “invisible hand” and “marketplace of ideas” metaphors by 18th-century Scottish economist Adam Smith to justify a series of decisions that chipped away at the legal wall separating money from politics.
It hasn’t always been this way. Since the Guilded Age of the 1890s, both Congress and the Supreme Court have been wary of the corrosive and corrupting influence of money on politics and democracy. Campaign finance was limited to “natural” citizens. Time and again the court reaffirmed this stance. Until the conservative Rehnquist and Roberts courts.
Critics of the Citizens United ruling say it constitutes judicial overreach and allows a handful of individuals and corporations with narrow interests to wield undue influence on political campaigns, state initiatives and legislative agendas at all levels of government. They argue it sidelines ordinary citizens.
Indeed, critics note 70 percent of all political contributions come from fewer than 0.4 percent of Americans. Much of that is unlimited “dark money” contributed through Super PACs, which are not required to reveal donors.
We have seen the effects of Citizens United in Washington state. In 2011, Costco outspent opponents 2 -to-1 in putting $22 million behind I-1183 to privatize the sale of hard spirits. Costco’s alcohol sales soared. In 2018, major beverage companies outspent opponents 176-to-1 with $25 million supporting I-1634 to block a tax soft drinks.
Nationally, total spending on federal campaigns ballooned in 2020 to $14 billion — almost double 2016 spending. The two Georgia U.S. Senate races alone totaled more than $440 million. This forces congressional members and senators to be part-time legislators, half-time fundraisers.
Still, the Supreme Court asserts that corporations hold a valuable perspective and should be part of the conversation — that corporations are in effect people.
But does unlimited corporate spending that wins advantages such as subsidies and tax breaks further the public interest? At what point does corporations’ outsized influence on campaign financing and legislative agendas become unfair to the common voter, and corrupt?
The Columbia Basin Badger Club’s online forum, “Citizens United: Free Speech or Democracy for Sale?”, at noon on March 18 will examine how the Supreme Court arrived at this decision, and whether it should be overturned by a constitutional amendment. Register at columbiabasinbadgers.com to receive a confirmation and link to join the forum. Cost is $5 for nonmembers, while club members can join for free.
The speakers will be:
Tim Kuhner, a law professor at the University of Auckland, New Zealand, who teaches comparative constitutional law, anti-corruption law and campaign finance. Previously a Fulbright senior scholar at the University of Barcelona and tenured professor at Georgia State University College of Law, his books include Capitalism v. Democracy: Money in Politics and the Free Market Constitution (2014), and Tyranny of Greed (2020).
Cassidy Faber, who is the former legislative director for Wolf-PAC in Washington state. She became interested in politics in 2018 after watching friends and family struggle with meeting basic needs, crushing medical debt, low pay and no opportunities for advancement despite working hard. She lives in the Seattle area and volunteers at-large with political organizations around the state.
State Sen. Mark Schoesler, R-Ritzville, who will argue in favor of Citizens United. He has served in the Washington Legislature for 23 years, the first 12 in House. He represents part or all of Adams, Asotin, Franklin, Garfield, Spokane and Whitman counties. He has served in party leadership and is on two Senate committees: Labor, Commerce and Tribal Affairs; and Ways and Means.
Dan Clark taught English at Kamiakin High School and is a board member of the Badger Club.
This story was originally published March 15, 2021 at 1:40 PM with the headline "Citizens United: Free Speech or Democracy for Sale? | Guest Opinion."