Posted by Brendan Fischer on January 20, 2012

U.S. ConstitutionJanuary 21 marks the second anniversary of Citizens United v. F.E.C., where a narrow majority of the U.S. Supreme Court asserted that the Constitution prevents Congress from limiting the amount of money that can be spent influencing our elections. The Center for Media and Democracy is working with a constellation of groups in support of amending the Constitution to reverse the decision and address the distortion of the democratic process.

The 5-4 Citizens United decision struck down bipartisan clean election laws and declared that Congress could not limit so-called "independent" spending by corporations or others. In the two years since that decision, the 1% have been playing an increasingly outsized role in our elections, holding even greater sway than they had before 2010. Deep-pocketed CEOs and corporations have filtered many millions of dollars through Super PACs like American Action Network and secretly-funded non-profit groups like Karl Rove's Crossroads GPS, spending made possible by Citizens United and the district court decision SpeechNow.org v. F.E.C.

Exceptionally Costly, and Exceptionally Unpopular

The first elections after Citizens United were the most expensive in U.S. history, with more spending coming from outside groups than from the candidates themselves. In modern elections, 9 out of 10 races are decided by who raises more campaign cash. Given this reality, it stretches the imagination to believe elected officials won't be indebted to those deep-pocketed donors who help them get the edge over their opponent.

The 2012 elections are expected to once again set new records for spending. And the money that flows into this year's campaigns will come overwhelmingly from the top one percent. Only a tiny sliver of Americans donate to elections, and the bottom 99.5 percent who can afford to contribute will have their dollars drowned out by the million-dollar contributions made possible by Citizens United.

The decision is not only unleashing an exceptional amount of spending -- it is also exceedingly unpopular. A Pew Research Center poll released Tuesday shows 65 percent of voters from both parties who know about the Citizens United decision believe it has had a negative impact on politics. Additionally, a poll released Wednesday from Main Street Alliance, the American Sustainable Business Council, and Small Business Majority shows that 66 percent of small business owners believe Citizens United has been bad for small businesses, compared to only 9 percent who think it's good -- a margin of 7 to 1.

Constitutional Amendment May be Only Option

Despite public opposition to Citizens United, reversing it will not be easy. With money deemed to be "speech" and corporations "people," the narrow majority of justices in that decision claimed the U.S. Constitution's First Amendment compelled the Court to strike down bipartisan rules governing election-related spending. As a result, many believe it necessary to push for a constitutional amendment to reverse Citizens United and related decisions that have distorted the election process.

Several public interest groups have been calling for amending the Constitution since Citizens United was released, including CMD, Move to Amend, People for the American Way, Free Speech For People, Public Citizen, Common Cause, and others, like the Coffee Party, the NEA, and CWA, as well as a new group called "United Republic." Despite some differences in tactics and proposed amendment language, these and other groups have come together in a "constellation," uniting under the banner of a common set of principles and with a collaborative website, "United for the People" (www.United4thePeople.org). The effort to amend the Constitution gained major steam as the Occupy and 99% movements have objected to the distorting role of money in politics and the absurdities of "corporate personhood."

And some legislators have been paying attention.

U.S. Congresspersons Offer Amendments

In November 2011, Congressman Ted Deutsch (D-FL) introduced the "Outlawing Corporate Cash Undermining the Public Interest in Our Elections and Democracy" (OCCUPIED) constitutional amendment that would prohibit business corporations from spending money on elections. It would also restore the power of Congress and the states to regulate election contributions and spending, which would prevent wealthy CEOs like David and Charles Koch, or North Carolina's Art Pope, from having an undue influence on elections. In December, Senator Bernie Sanders (I-VT) introduced a companion bill in the Senate, along with Sen. Mark Begich (D-AK). (You can sign a petition in support of the amendment here.)

The Center for Media and Democracy endorsed the Deutsch/Sanders proposal as the most powerful amendment to date in Congress (and got a shout-out from Sen. Sanders when he introduced it).

Other amendment proposals have also been introduced.

Weeks after the Citizens United decision was announced in January 2010, Rep. Donna Edwards (D-MD) introduced an amendment, followed in February by a proposal from Sen. Chris Dodd (D-Conn.) and Sen. Tom Udall (D-N.M.), then one from Rep. Paul Hodes (D-NH) in April, and another proposal from Sen. Max Baucus (D-MT) in July.

On Thursday, Congressman Dennis Kucinich (D-Ohio) introduced an amendment to deal with public financing of election, a proposal in line with the suggestion of hip hop mogul Russell Simmons.

In total, ten amendments have been offered in the 112th Congress. Others have been floated but not yet introduced, like the proposed amendment from the "Move to Amend" coalition.

Amendments Differ, But Reflect Need for Change

The introduction of each amendment helps advance this vital issue and reflects the depth of support for reversing Citizens United. While the precise language and impact of each proposal differs, they share a common diagnosis: that the democratic process is being unduly distorted by money and corporate influence.

Non-profit law expert Greg Colvin has suggested an analytical framework to help people assess what the proposed amendments do (or do not do), and compared some of these and other proposed amendments.

There is no doubt that amending the constitution will not be easy, but a growing number of Americans believe it is essential. Citizens of all political stripes know the current systems gives far too much power to a small number of rich individuals and corporations.

Second Anniversary Events

Hundreds of events are being held this week across the U.S. to protest the decision on its second anniversary.

On Friday, one day "occupations" will be held at hundreds of federal courthouses. A large demonstration is planned for the U.S. Supreme Court, where Move to Amend's David Cobb and George Friday will be joined by Code Pink's Medea Benjamin, the Coffee Party's Annabel Park, TV host Thom Hartmann and others in speaking out against Court decisions they believe must be overturned. "Occupy the Courts" is organized by the Move to Amend coalition.

On Saturday, activists across the country will 'apprehend' corporate impostors posing as 'people' asserting constitutional rights, including an effort targeting Bank of America at their New York headquarters. "Occupy the Corporations" is organized by Public Citizen.

For more information about these and other events, visit www.United4thePeople.org.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.

Comments

Do I understand you correctly; your solution to restoring the people’s voice in elections is to pass a new amendment that will overturn the 1st Amendment prohibition which denies Congress authority to write laws abridging the right of people to assemble and use speech and the press to petition government for a redress of their grievances?

Mainstream media corporations are the ultimate Super Pacs and they are exempt from campaign laws.

From 1791 to 1886 1st Amendment freedoms of speech, press and assembly were the sole rights of flesh and blood citizens.

From 1886 to 1973 flesh and blood citizens and media corporations enjoyed equal freedoms of speech and the press.

From 1974 to present only the commercial media enjoy unrestricted freedom of speech and the press. Following reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs.

2 USC 431 (9) (B) (i) The term "expenditure" does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

And what is the difference between slanted news stories or editorial opinions and political ads anyway? "Section 431(9)(B)(i) makes a distinction where there is no real difference: the media is extremely powerful by any measure, a "special interest" by any definition, and heavily engaged in the "issue advocacy" and "independent expenditure" realms of political persuasion that most editorial boards find so objectionable when anyone other than a media outlet engages in it

The media’s crocodile tears about the evils of money in politics is so hypocritical. Distributing political ads to the masses is the biggest expense of political campaigns. If the media were to carry political ads, as a public service, it would greatly reduce the need for money in politics! But corporate media are the recipient of billions of dollars in campaign ads.

The 1st Amendment is not a loophole in campaign laws. Campaign laws are corruption of the 1st Amendment.

Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.

To restore equal protection under law the press exemption must be extended to citizens and citizens groups!

The excerpts below are from page 25 The Media Monopoly by Ben H. Bagdikian Fifth Edition paperback.

It is normal for all large businesses to make serious efforts to influence the news, to avoid embarrassing publicity, and to maximize sympathetic public opinion and government policies. Now they own most of the news media that they wish to influence.

Under law, the director of a company is obliged to act in the interests of his or her own company. It has always been an unanswered dilemma when an officer of Corporation A, who also sits as a director on the board of Corporation B, has to choose between acting in the best interests of Corporation A or of Corporation B.

Interlocked boards of directors have enormously complicated potential conflicts of interest in the major national and multinational corporations that now control most of the country’s media.

A 1979 study by Peter Dreier and Steven Weinberg found interlocked directorates in major newspaper chains. Gannett shared directors with Merrill Lynch stock brokers), Standard Oil of Ohio, 20th-Century Fox, Kerr-McGee (oil, gas, nuclear power, aerospace), McDonnell Douglas Aircraft, McGraw-Hill, Eastern Airlines, Phillips Petroleum, Kellogg Company, and New York Telephone Company.

The most influential paper in America, the New York Times, interlocked with Merck, Morgan Guaranty Trust, Bristol Myers, Charter Oil, Johns Manville, American Express, Bethlehem Steel, IBM, Scott Paper, Sun Oil, and First Boston Corporation.

Louis Brandeis, before joining the Supreme Court, called this linkage “the endless chain.” He wrote: “This practice of interlocking directorates is the root of many evils. It offends laws human and divine. . . . It tends to disloyalty and violation of the fundamental law that no man can serve two masters…. It is undemocratic, for it rejects the platform: ‘A fair field and no favors.”‘

* “When the first edition of The Media Monopoly was published in 1983, critics called Ben Bagdikian’s warnings about the chilling effects of corporate ownership and mass advertising on the nation’s news “alarmist”. Since then, the number of corporations controlling most of America’s daily newspapers, magazines, radio, television, books and movies has dropped from fifty to ten.” [ from the fifth edition of The Media Monopoly rear book cover] * The sixth edition says the number of corporations controlling most of America’s daily newspapers, magazines, radio, television, books and movies has dropped to six.

I find it hypocritical that Common Cause, a 501 (c)(4) corporation exempt from publicizing its donors, is pushing for accountability and an end to corporate participation in elections. And I find it priceless that Common Cause claims money is not speech while asking for donations on their website.

http://judgepedia.org/index.php/Common_Cause

http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=4860191

I agree that the Citizens United ruling must be overturned somehow, and that the best way to do that will be through an Amendment to the US Constitution. Said amendment should be as tightly worded as possible to only indicate groups of people (corporations and unions) in order to avoid complications and misunderstandings such as the one above.

Conflating money with speech is totally incorrect. Money is simply a means to amplify and repeat speech. This is how it is dangerous, because it distorts the discourse through repetition or in some cases replacement. It is possible for a voter to only hear/comprehend the most repeated information and to miss an alternative that has been presented. In this way, such a ruling is undemocratic, because it undermines the quality of the debate/discussion. It is here that your condemnation of the media is valid, since they follow the repetition/replacement model to create as much sensation as possible. However, they would still have speech without money, as many people on the blogosphere can attest to. Their message would simply not be as amplified.

Allowing money to amplify and repeat speech also raises another hurdle for people desiring to enter into politics, or to advance beyond their current position. Someone from a state legislative branch may be well liked and have great ideas to solve larger problems, but because they lack financing, will not be able to present those ideas except through an intermediary, or as a side project. While those choices can be viable, they could also lead to bloated mega-bills or half-solutions that have been adjusted by the intermediary. The need for financing also opens the door for collusion by corporations or individuals with available resources. These campaign promises tend to be honored more than promises to voters, especially broad promises that are hard to realize. It is far easier to argue for specifics such as adjusting a regulation than to argue vague generalities such as creating more jobs.

This leads to the other danger of this type of campaign financing, that these advertisements must be as broad and as vague as possible when talking about what the candidate will do, or specific and acerbic when talking about what an opponent will do. This cheapens the discourse into finger-pointing and mudslinging with no real ideas about what action will happen if a specific candidate is elected. Thus, it becomes far easier for demagogues to be elected, because people are more likely to vote how they feel if they have no idea what the specifics are. This turns politicians into confidence men.