In the Citizens United decision, a 5-4 majority of the Supreme Court decided to treat corporations as persons and grant them so-called “free” speech rights to spend unlimited amounts of money to influence the outcome of elections.
For American democracy the change goes far beyond the newfound capacity for Exxon, Goldman Sachs, Pfizer, AIG or any corporation to pour money into elections. Seizing on a minor campaign case about a movie, the court took aim at the very definition of democracy itself. Democracy at its core means power exercised by people not corporations. People through their representative government passed laws to create corporations in order to conduct commerce or do business, not to sway elections. The people and its government have, or certainly should be expected to have, the right to regulate corporations as deemed necessary.
The actions of five justices go further than any previous governmental action to take the “free” out of free speech. It hands the megaphone and soapbox to those with the greatest access to private wealth. Heretofore corporations were strictly limited on their ability to spend money in elections. Now the democratic principle of one person, one vote gets ever more replaced by pay to play.
Large flows of special interest money from corporate executives, PACs, lawyers, and lobbyists are already flooding elections. Individuals tied to banks, insurance companies, drug companies and others industries and interests invested more than a billion dollars in large election donations in 2008 alone. Instead of swinging the door open wider to include corporate treasuries, the courts and Congress should, to save democracy, be exploring ways to limit or end the undue influence of all big money out of elections.
Larger flows of money for or against candidates can only spawn higher levels of cynicism by the public with more reason to believe their democracy and their elections are controlled by large monied interests. Big money, as courts have noted before, is corrupting in appearance and actuality. In the end, there is no difference between large money transactions to candidate campaigns called campaign donations or independent expenditures any bribe or payment to a candidate to gain access, influence and win an outcome – be it their election or defeat or derailing a proposed policy or enacting a new one.
Every advanced democracy has sought and continues to find reasonable ways to regulate the flow of money in campaigns and creation of public policy. As they should. Cast aside by this court is the compelling public interest government has in creating a level playing field for competitive elections and balancing in the ability of the wealthy versus the common citizen to determine public policy outcomes. Democracy requires fair elections and equitable public deliberation or there’s another name – plutocracy.
What next? It’s a bad decision but so polar to the principle of democracy that it can’t last in this form. Short run fixes are being called for and may help. But there are only two solutions. Public election funding and free media used in all modern democracies to take big money out of elections and to discourage or eliminate the unlimited independent expenditures the court now sanctions. Systems that combine public campaign funding with incentives for the greater participation of small donors allowing ordinary candidates to mount campaigns and get their message out on a level playing field.
The other solution is for the evolution of a Supreme Court that gets democracy and the corrupting role of money. It is a Court looking forward not back that restores the rights of citizens over corporations and the meaning of “free” in free speech. In the 19th century the courts endorsed racial segregation and even slavery. Today courts have endorsed “free” speech rights to those who can pay the highest price. These things can change and, in the resilience of American democracy, they will.