The recent Citizens United decision by the Supreme Court has caused a lot of consternation, to say the least. The main concern is that decision is so broad that, if they care to, any cooperation could spend unlimited amounts of its collective money to influence the election of a Senator, a Representative or even state level judges and elected officials.
Today the House Judiciary Sub-Committee on the Constitution, Civil Rights and Civil Liberties held a hearing on the impact of this decision and where there might be legal curbs placed on the now unlimited money. There were four witnesses today, Professor Lawrence Tribe from the Harvard School of Law, Monica Youn from the Brennan Center for Justice, Sean Parnell the President of the Center for Competitive Politics (an anti-reform group) and Donald J. Simon of Sonosky, Chambers, Sachse, Endreson & Perry, LLP, a law firm that specializes in representation of Native American interests. He is also General Council for Democracy 21.
All but Mr. Parnell testified to the expected negative impact of the Citizens United ruling. Mr. Parnell, of course, does not think that the Supreme Court stripping away all limits on corporate spending on elections is a problem, as his group tends to think that if you have the biggest stick you should get what you want.
The hearing, from the point of view of the Representatives was how big a problem this is and what could be done legislatively to mitigate the problem. The three big ideas from the witnesses who were in favor of restraining cooperate spending were as follows:
1) Much stronger requirements for reporting to shareholders on expenditures and requirements for direct shareholder approval of expenditures in advance.
2) Strengthen FCC Disclosure – this would include a requirement that all 527 groups fully disclose where they get their money.
3) A law allowing the States to regulate cooperate expenditures in State elections. Currently this would not be possible since the Commerce Clause applies to corporations.
Interestingly none of the pro-reform witnesses were in favor of a Constitutional Amendment, like the one proposed by Representative Donna Edwards. They had two arguments against this, first off the time it would take to amend the Constitution would allow a lot of influence by domestic and foreign company’s to our elections.
The other, which came from Ms. Yuon, was that we should push back on the actions of the Court legislatively before we work on the Constitution. This is the solution I am in favor of but for another reason.
No matter what we do the ilk like Citizens United is going to push to have the elections in this nation be like the Wild West. However, it takes time for court cases to work their way through the system. There has to be some harm done, then an initial case in District Court, an appeal the Circuit Court then it gets back to the Supreme Court. This process is very rarely shortened, even when we are talking about things like habeas corpus. So by putting some limits in right now we buy some time to really dig in and find a way to fix the problem the Supreme Court has handed us.
Ms. Yuon hit the nail on the head about the effects of time on this issue. The Republican members of the committee were unconvinced that corporations really would jump in, one went so far as to say that corporations were the political speakers most likely to be intimidated, citing their willingness to change when boycotted by consumers. The question that shot to my mind was “Who is going to be able to boycott Exxon, exactly?” Even if you don’t buy gas from their station, the number of products that use their oil is shocking. Besides, do we really think they care? If they did, would they be continually fighting to reduce the judgment against them for the Exxon Valdese accident?
There is a lot of hoopla about the proposed Constitutional Amendment. For those who have not seen it, the text reads :
Section 1. The sovereign right of the people to govern being essential to a free democracy, the First Amendment shall not be construed to limit the authority of Congress and the States to define, regulate, and restrict the spending and other activity of any corporation, limited liability entity, or other corporate entity created by state or federal law or the law of another nation.
Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.
While this is a good thing in and of itself the path to passage is far from sure. Passage requires not only a 2/3 vote in both the House and the Senate, it requires that ¾ of the states also ratify it. For someone that lived through the attempted ratification of the Equal Rights Amendment as a kid, I am far from convinced that we will be able to get this done.
It is far better to work the system, to make law that has to be challenged in the courts and keep doing so until we can find a set of conditions that protect the people from the non-people corporations.
This is not to say that we should not push ahead with the Amendment attempt, we should. It is just that we need to focus on the immediate future and not allow our political system to be held hostage by the mere threat of enormous amounts of money being spent.
The floor is yours.