Saving Our Republic From Citizens United

By John Conyers, Jr.

Dean of the U.S. House of
Representatives
John Cconyers, Jr.

When Benjamin Franklin walked out of the 1787 Constitutional Convention, a woman standing outside the hall asked him what sort of government the delegates had created. Franklin responded, "A republic, Madame, if you can keep it."

While this republic was born without legal franchise for people of color and women, it has marched steadily for more than two and a quarter centuries toward fulfilling its promise. It remains a great achievement of human history that Americans established a democratic republic -- governed according to the will of its people rather than the whims of a despot -- and that we've been able to keep it.

Today, on the fifth anniversary of the U.S. Supreme Court's Citizens United decision, in the face of limitless anonymous political donations and dramatically widening inequality, it's an open question whether we can keep our republic. Our government is slowly starting to look more like an oligarchy, governed according to the whims of a special few. Thankfully, there are straightforward steps Congress can take right now to reverse this deeply troubling trend.

On Jan. 21, 2010, the Supreme Court majority in Citizens United v. FEC declared it unconstitutional to restrict a corporation from contributing money to support or attack candidates, opening the door to unlimited contributions from shadowy outside groups, including Super PACs and tax-exempt nonprofits. In the five years since then, spending by such outside groups has more than doubled, and the cost of winning an election has increased astronomically. In the most competitive Senate elections of 2014, more than 70 percent of the outside spending benefiting winning candidates came from undisclosed sources.

Unlimited secret money, coupled with rising inequality, creates a vicious cycle for democracy. The wealthiest among us are able to buy votes for politicians who pledge to cut their taxes, rig financial rules in their favor, and remove regulations requiring them to protect workers and the environment. All these actions make the rich richer and, in turn, enable them to purchase more political support. Lax campaign finance laws lock in a permanent governing class. The absence of disclosure requirements makes this governing class utterly unaccountable.

This not only damages our national character but directly impacts lives. With 95 percent of economic growth since the end of the Great Recession accruing to the wealthiest 1 percent of the population, working people lack the purchasing power to pay for college, mortgages, or many basic goods and services. While over two thirds of the public believes that "the government in Washington ought to see to it that everyone who wants to work can find a job," a recent study indicates that only 19 percent of the wealthiest Americans, who disproportionately fund elections, agree.

While multinational corporations and Wall Street titans have taken maximum advantage of Citizens United, small businesses have also been negatively impacted by the flood of campaign money. A new poll conducted by Small Business Majority found that 88 percent of small-business owners view money as a negative force in politics, and 66 percent believe Citizens United has hurt modest-sized firms.

But history gives us reason for hope.

As former Labor Secretary Robert Reich has pointed out, the corporate "robber barons" of America's late-19th-century Gilded Age would drop sacks of money on lawmakers' desks in exchanges for business favors. Public outcry gave rise to the progressive movement and the nation's first campaign finance laws -- as well as the major labor protections, antitrust enforcement, and food and product standards.

To take on our modern crisis of corruption, Congress needs to pass legislation to repeal Citizens United, require transparency in political contributions, and empower small donors.

As Ranking Member of the Judiciary Committee, I have been proud to help lead the fight for an amendment to the U.S. Constitution to reverse the Supreme Court's unprecedented application of the First Amendment to corporations, giving Congress and the states specific authority to regulate corporate expenditures on political activity.

Today my Democratic colleagues and I will reintroduce the DISCLOSE Act to require that corporations and outside groups disclose all political spending to the Federal Elections Commission.

To counter the flood of big money and ensure that candidates spend time hearing from regular citizens rather than elite contributors, we need frameworks that encourage small donors. That's why I support Congressman John Sarbanes' "Government by the People Act" to match small donations with federal dollars and amplify the voices of ordinary concerned citizens.

After the last Gilded Age, the great jurist Louis Brandeis said the nation had a choice: "We can have a democracy or we can have great wealth in the hands of a few, but we can't have both."

The same remains true today.

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Conyers Criticizes Supreme Court Ruling As Another Blow to Democracy

(ANN ARBOR) – Today, in a 5-4 ruling, the United States Supreme Court ruled in McCutcheon v. FEC that the aggregate limits imposed on campaign contributions through the Bipartisan Campaign Reform Act of 2002 are invalid under the First Amendment. Since significant First Amendment interests were at stake in this case, the Court held that the aggregate limits imposed by Congress on campaign contributions do not further the permissible government interest in preventing quid pro quo corruption or the appearance of corruption. After the ruling, today Congressman John Conyers, Jr. (D-Mich.) released this statement:

U.S. Representative
John Conyers, Jr.

“Today, America’s electoral integrity suffered a second blow by the Roberts Court as their ruling in McCutcheon v. FEC was issued, striking down limits on overall campaign contribution from individual donors. In 2002, Congress passed the Bipartisan Campaign Reform Act to eliminate the ability of wealthy donors to contribute millions of dollars to political parties - over the voices and votes of those who cannot financially flood the electoral system. Until today, the courts had consistently upheld that the contribution limits and aggregate limits were permissible tools in Congress’s arsenal to fight the actuality or appearance of corruption. However, the decision in McCutcheon v. FEC will  dangerously impact Congress’s ability to protect the electoral process from corruption,” said Conyers.

“In past rulings, the Courts have always struck a balance between Congress’s authority to place limits on campaign contributions and the constitutional notion that contributions are speech. However, over the last decade, our nation’s campaign finance laws have been under attack by those who seek to unleash unlimited contributions in our political system.  Since the Supreme Court’s ruling in Citizens United, the confidence of the America people has been impaired, necessitating Congress determine how to best protect equal access to our political system.  The Supreme Court’s ruling today removes the deference that was traditionally left by the Court for Congress to protect its interest in preventing corruption.

“This is a government by the people and for the people, not just the privileged few. The Supreme Court’s decision today will increase the power of a small set of wealthy donors who seek to determine the outcome of our elections system.”  

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Conyers Pledges to Support Constitutional Amendment to Limit Secret Corporate Campaign Cash in Elections Permitted Under Citizens United

(WASHINGTON) – Today, at a Congressional Summit on Overturning Citizens United, House Judiciary Committee Ranking Member John Conyers, Jr. (D-Mich.) pledged to work towards passing a constitutional amendment to expressly permit Congress the power to regulate corporate spending in federal elections.  The Supreme Court’s decision in Citizen’s United v. FEC equated corporate campaign donations with free speech, overturned established federal campaign finance laws, and opened the floodgates on unlimited campaign spending by Super PACs.  The summit highlighted local, state, and federal efforts to limit the ruling by amending the U.S. Constitution.  Ranking Member Conyers along with Representative Donna Edwards (D-Md.) have introduced one such amendment in the House this Congress as H.J. Res. 78. 

Ranking Member Conyers released this statement following the summit:

U.S. Representative
John Conyers, Jr.

“The Supreme Court’s holding that corporate political speech is no different than an individual citizen’s political speech was not the law when the Constitution was written, was not the law before the Supreme Court’s decision, and should not be the law in the future.  The Citizens United decision undermines citizens’ faith in our Nation’s democratic process.  Congress regulated corporate campaign donations to limit not only the potential for corruption, but also the appearance of corruption.  The mere appearance of impropriety has a corrosive effect on voters’ belief in the legitimacy of the government.     

“Fortunately, we have options to preserve the integrity of our democratic electoral system.  To date, 12 proposals to amend the Constitution in response to Citizens United have been introduced this Congress, including H.J. Res. 78.  I accept the Supreme Court’s authority to determine the law’s constitutionality.  But many of my colleagues and I respectfully disagree with the Court’s decision in this matter.  That is why I pledged to support amending the Constitution of the United States to restore the rights of the American people, undermined by Citizens United and related cases, to protect the integrity of our elections and limit the corrosive influence of money in our democratic process.  

“Congress needs to take a leading role in initiating the process to amend the Constitution.  As elected officials, it is imperative that we demonstrate to the American people our dedication to the principal that the voters, not moneyed corporate interests, should determine the outcome of elections.  A constitutional amendment providing Congress the explicit authority to regulate corporate campaign contributions would do much to restore the American people’s faith in honest and fair elections.” 

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Conyers: People Must Know Who is Flooding the Airways with Anonymous Political Ads

**Follow Me On Twitter @HouseJudDems**

For Immediate Release
Date: Friday, January 20, 2012
Contact: Matthew Morgan – 202-226-5543

Conyers: People Must Know Who is Flooding the Airways with Anonymous Political Ads
  

(WASHINGTON) –  Today, House Judiciary Committee Ranking Member John Conyers, Jr. (D-Mich.) released the following statement in advance of the second anniversary of the Supreme Court’s decision in Citizens United v. Federal Elections Commission, which falls on tomorrow January 21.  The Supreme Court’s decision in the Citizens United case wiped out a century of legal precedent, granting corporations the same free speech rights as individuals and allowing for unlimited spending by corporations and special interests on political campaigns.         

“Two years ago, the Supreme Court opened the floodgate on unlimited, anonymous corporate money that distorts elections and accords giant corporations the same free speech rights as real people.  In order to address this dangerous decision, my colleagues and I introduced a narrowly crafted constitutional amendment, H.R. Res 78, to ultimately undo the damage the Citizens United decision wrought on the democratic process.  However in the meantime, Congress must immediately take up disclosure legislation similar to H.R. 5175, the DISCLOSE Act, which passed the House last Congress.  People have a right to know what entities are responsible for the anonymous ads flooding the airwaves. And until the Citizens United decision is overturned, Congress must ensure that all the facts are available to voters before they make a decision at the ballot box.”             

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House Amendment to Reverse Citizens United Ruling Meets With Mixed Support

House Amendment to Reverse Citizens United Ruling Meets With Mixed Support

Wednesday 12 October 2011

by: Britney Schultz, Truthout | Report

In the wake of the landmark Supreme Court case Citizens United v. Federal Election Commission, which upheld that corporations were "persons" and that their deep-pocket political expenditures were a constitutionally protected expression of their free speech rights, much resistance to the decision has sprung up, from the grassroots to the halls of power in Washington.

Last month, Rep. Donna Edwards (D-Maryland) and Judiciary Committee ranking member John Conyers (D-Michigan) reintroduced an amendment to the US Constitution, HJ Res. 78, which called for a reversal of the Citizens United case by limiting corporate contributions in elections. The bill is cosponsored by 18 US representatives.

Representative Edwards expressed initial hesitation to amending the Constitution, but said that the Supreme Court left her with no other choice after its ruling in Citizens United. 

"Justice John Paul Stevens warned that the Supreme Court's ruling in Citizens United threatened 'to undermine the integrity of elected institutions around the nation,' and how right he was," said Edwards. "Since that flawed ruling was issued, campaign spending by outside groups including corporationssurged more than four-fold to reach nearly $300 million in the 2010 election cycle." 

According to a poll conducted last year by Hart Research, an overwhelming majority of American voters agree that corporate spending has more to do with buying influence in Washington than with exercising free speech; 95 percent of those polledagreed that, "Corporations spend money on politics to buy influence/elect people favorable to their financial interests." 

The proposed amendment targets corporations' First Amendment "political speech rights," but does not include corporations' commercial "free speech rights." Rep. Edwards said that Congress has other routes of "policing" corporate marketing.

While HJ Res. 78 is praised by some activist groups, such as Free Speech for People, others regard the bill as it is written with skepticism, pointing out that it is not a comprehensive solution for groups actively working against the larger issue of corporate personhood.

According to Move to Amend organizer David Cobb, "It is a mistake to oppose Citizens United only on the basis of campaign finance reform." Kaitlin Sopoci-Belknap, also from Move to Amend, told Truthout that, because the bill legitimizes corporations' status as "persons" within the Constitution, it would actually make it harder for groups against corporate personhood to get their agenda through.

Rep. Edwards told YES! Magazine she has faith in passing the amendment: "We've amended the constitution 27 times, and this 28th amendment is no different. Some constitutional amendments have gone rapid-fire through the Congress, and I think that we have the potential for that kind of momentum here."

This work by Truthout is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

House Joint Resolution 78 to Amend Constitution on Political Activity by Corporations

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A Blockbuster Case Yields an Unexpected Result

By ADAM LIPTAK

Published: September 19, 2011

WASHINGTON — People who hate Citizens United, last year’s blockbuster campaign finance decision by the Supreme Court, tend to blame it for allowing secret money from corporations and unions to flood the political landscape. But the critique is wrong on at least one point — the bit about secrecy.

An often-overlooked part of the Citizens United decision actually upheld disclosure requirements, saying that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Lower courts have embraced the ruling, with at least nine of them relying on Citizens United to reject challenges to disclosure laws, often in cases involving political spending related to social issues. In particular, courts have rejected efforts by groups opposed tosame-sex marriage to keep their supporters and spending secret.

Put another way, you can make the argument that Citizens United has been good for gay rights. “Even Justice Scalia supports donor disclosure,” said Joe Solmonese, president of the Human Rights Campaign, a national gay rights group.

The Supreme Court has left open the possibility that secrecy may be warranted when there is hard proof of illegal harassment of supporters of controversial causes. But justices across the ideological spectrum have so far leaned toward the value of open debate.

“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” Justice Antonin Scalia wrote in another case last year.

None of this means that existing disclosure laws are necessarily adequate. But if they are not, the fault lies with Congress and state legislatures, not the Supreme Court. You can’t blame Citizens United for everything.

It is probably true that the more important issue is not which laws have been upheld, but rather which bills were never passed. But it is also true that the Supreme Court is likely to sustain aggressive disclosure laws if they are enacted. The part of Citizens United that everyone remembers was its main ruling, allowing unlimited campaign spending by corporations and unions. The court decided that part by a 5-to-4 vote, split along the classic ideological fault line. People forget the second aspect of the decision, this one favoring disclosure and decided by a lopsided vote. Only Justice Clarence Thomas dissented.

The two parts of Citizens United are not hard to harmonize. Citizens United takes the libertarian view that people may be trusted to evaluate the messages they hear and need not be sheltered from the responsibility of critical thinking. The theory is as applicable to the marketing of soda and cigarettes as it is to that of political candidates.

Citizens United itself concerned a slashing polemical documentary about Hillary Rodham Clinton paid for by a conservative advocacy corporation that wanted to distribute the film on a video-on-demand service during the Democratic presidential primaries in 2008, when Mrs. Clinton was seeking the party’s nomination.

The five-justice majority in Citizens United said that speech about politics is at the core of what the First Amendment protects, that more speech is better than less and that the government has no business deciding who can speak or how much.

It is a small step from that reasoning to saying, as eight justices did, that it helps to know who is advancing the ideas you are evaluating. You probably trust some sources of information more than others, for instance, and you may examine an argument more skeptically if it happens to align with the speaker’s self-interest.

Richard L. Hasen, an election law specialist at the University of California, Irvine, added that political science research had shown that disclosure could provide voters with useful information. “If all I tell you about a candidate is that he is backed by the N.R.A. or Planned Parenthood, that is all many voters need to know,” he said. “The disclosure serves a shortcut function.”

James Bopp Jr., a driving force behind the Citizens United case and a leading critic of campaign finance regulation, acknowledged that his side had been on something of a losing streak in disclosure cases, including in a pair of decisions last month from the United States Court of Appeals for the First Circuit, in Boston, that upheld laws fromMaine and Rhode Island requiring the disclosure of election-related spending.

“It is true,” Mr. Bopp said, “that some courts, particularly most recently the First Circuit, have treated Citizens United’s endorsement of disclosure as novel, which it isn’t, but also as carte blanche for any regulation.”

Mr. Bopp is right that the Supreme Court has long been comfortable with disclosure requirements. But Ciara Torres-Spelliscy, a law professor at Stetson University in Florida, said that lower courts had in the years before Citizens United grown skeptical of compulsory transparency, sometimes saying that it chilled First Amendment rights by imposing burdensome reporting requirements. “Before Citizens United, there was a very alarming trend in this area,” she said.

In a recent article in the Georgia State University Law Review, Professor Torres-Spelliscy described “the dramatic 180-degree turn that the law has taken” in the wake of Citizens United on the issue of disclosure.

These days, Professor Hasen said, “lower courts have been taking their cue from Citizens United that disclosure laws, even if they are intrusive, are constitutional.
”