Experts Debate Citizens United in Claremont

A clear and comprehensive report of what the speakers at the Forum said.

by Ivan Light

 “What should be the role of corporate cash in American politics?” Three Constitutional experts debated that topic before a large audience at Claremont Graduate University’s School of Politics and Economics. Representing the full spectrum of American opinion, from left to right, the experts addressed the Supreme Court’s Citizens United vs. Federal Elections Commission decision in 2010. In this landmark decision, the U. S. Supreme Court ruled that corporations have a first amendment right to inject as much of their own cash into political campaigns as they please. The court’s ruling overturned a century of legal restraint upon the ability of business corporations to influence elections.

Responding to that controversial decision, which permits corporations to spend unlimited funds to influence elections, many influential spokespersons have called for a Constitutional amendment that would strip corporations of their fictive personality under the first amendment.  Oddly, that view was endorsed in this debate only by the centrist speaker as both the left and the right speakers rejected the call for a Constitutional amendment. 

Speaking first was Erwin Chemerinsky, Dean of the Law School at the University of California, Irvine. Deploring the Citizens United decision, which he declared “tragically wrong,” “deeply corrosive” to democracy, and legally unjustifiable, Chemerinsky nonetheless rejected the call for a Constitutional amendment to repudiate the Supreme Court’s decision once and for all. First, Chemerinsky argued that a Constitutional amendment would fail of adoption so why bother? Second, he continued, the pernicious consequences of Citizens United can be controlled more easily by strengthening federal and state disclosure requirements under which donors to political campaigns must be fully identified to voters. If voters had this information, regrettably concealed under current law, Chemerinsky argued, then the voters could draw intelligent conclusions about the extent to which candidates for public office had allowed corporate cash to influence their platform and performance in office. Third, Chemerinsky pointed out that the federal government could prohibit corporations with which it does business from making any donations to political campaigns, and states could do the same. This measure would effectively terminate the ability of many corporations to make any political contributions. Fourth, Chemerinsky pointed out that even if corporations enjoy free speech rights under the first amendment, courts have ruled that free speech rights may be regulated in the public interest. One cannot shout “fire” in a crowded theater. Finally, Chemerinsky proposed that stockholders be required to approve proposed corporate political donations as union members are required to approve political donations by their union’s leadership. Such a requirement would greatly inhibit the ability of corporate directors to invest in political campaigns.

The second speaker was Hans von Spakovsky, a Bush appointee to the Federal Elections Commission, and currently a senior fellow at the Heritage Foundation. Von Spakovsky explained that the Citizens United decision arose in the wake of a controversy regarding the right of a small, non-profit organization to advertise their hostile documentary film about Hilary Clinton. Under then existing law, the McCain-Feingold Act, the non-profit organization was prohibited from advertising its film, and its directors faced imprisonment for having done so. In effect, the Supreme Court agreed that this prohibition upon advertising violated the first amendment rights of the film’s makers; and the Supreme Court then proceeded to strike down decades of legal controls upon the influx of corporate money into the political process. Should the film-makers have been imprisoned for advertising their film? von Spakovsky rhetorically asked the audience.

Turning to the Supreme Court’s decision, von Spakovsky claimed that in the modern world, money does equal speech just as the Supreme Court proclaimed.  Free speech no longer means the right to stand on a street corner and sound off.  Realistically speaking, free speech now means the ability to buy media access. In his opinion, the Supreme Court simply faced this unpleasant fact, and drew the logical conclusion. Additionally he pointed out that the majority’s decision cited 22 prior cases in which courts had declined to bar corporations from political spending. Therefore, in his evaluation, the Citizens United decision was based on precedent rather than, as Chemerinsky had claimed, a patent and politically-motivated violation of a century of legal precedent. Von Spakovsky further observed that the McCain-Feingold rules were of such “Byzantine complexity” that even the FEC’s lawyers could not understand them. Laws that complex and confusing cried out for simplification.   Von Spakovsky ridiculed the exemption of media corporations from prior bans upon political donations. The Washington Post is a four billion dollar corporation that routinely and legally meddles in American politics with full legal impunity. Von Spakovsky argued that if some corporations have this right, all should have it.

The final speaker was Bob Edgar, currently CEO of Common Cause and a former Congressional representative from Pennsylvania. Agreeing that Citizens United threatens to inundate American politics with corrosive corporate cash, Edgar defended not only the right of lobbyists to approach Congressional representatives, but even the desirability. Edgar observed that lobbyists serve a useful purpose when they approach Congressional representatives with facts and arguments. However, when they approach with check books, threatening to back opponents on the one hand, and offering bribes for compliance on the other, then the lobbyists have become enemies of democracy. Edgar recalled the many occasions during his twelve years in Congress that lobbyists had sought to influence him to vote against the public interest by threats and promises backed by corporate cash.     

Edgar’s organization, Common Cause discovered that Justices Scalia and Thomas had spoken before right-wing political groups just prior to the Citizens United decision, which was decided by a 5-4 party line vote in which the four Democratic Justices voted no, and the five Republican Justices voted yes. Supreme Court Justices are required to stay out of the political process, Edgar observed, so these speeches were violations of judicial ethics. However, when challenged, Justices Scalia and Thomas refused to recuse themselves. Since the Supreme Court has neither authority to hear complaints against Justices nor any way to compel Justices to recuse themselves, Scalia and Thomas participated in the decision, voting with the majority. The Supreme Court needs to tighten ethical restraints upon the Justices, Edgar concluded.

Edgar also introduced into the debate the complaint that the Citizens United decision permits foreigners to influence American politics despite statutory law that prohibits this influence. That is, multinational corporations have stockholders and directors of many nationalities so that when an “American” corporation like Standard Oil donates cash to candidates, hoping to influence public policy, foreigners are indirectly achieving an illegal influence upon the domestic political process within the United States.

Agreeing with Chemerinsky regarding the desirability of state and federal action to impose disclosure on corporate political contributions, Edgar also called for a Constitutional amendment to strip corporations of the legal fiction that they enjoy the same first amendment rights as natural citizens. He acknowledged that in the current political climate, the amendment would neither obtain the requisite two-thirds vote of both houses of Congress nor ratification by three quarters of the states. Nonetheless, he thought that putting the question of a Constitutional amendment before voters would heighten their awareness of the serious issues at stake in the aftermath of Citizens United.

This panel discussion of Citizens United was jointly sponsored by three groups: Common Cause, the School of Politics of the Claremont Graduate University, and the American Institute for Progressive Democracy in Claremont. The moderator of this event, who also introduced the panel speakers was Andrew Winnick, President of the American Institute for Progressive Democracy, which supports and has begun to promote a Constitutional amendment to deal with the issues raised by Citizens United. The discussant was Charles Doskow, Professor of Law at the University of La Verne School Of Law. Approximately three hundred people attended the discussion, which was opened to questions at the conclusion.

The program can be viewed online at http://www.ustream.tv/channel/cguoit.