“Repeal Citizens United” is the campaign slogan of the effort underway to collect signatures on the issue of repealing a decision of the Supreme Court about two years ago. The decision was that a corporation had the same rights at law as a person and was allowed to donate unlimited sums of money to the election campaign of a favored candidate. The slogan of the signature-gathering campaign is “a corporation is NOT a person.” I have not seen the text of the proposed constitutional amendment. I know that if the proposed amendment simply declares that a corporation is not a person, the amendment won't fix the money problem we now have with most elections.
There are prior decisions by the Court that have to be considered. An important one is Buckley vs. Valeo, in which the Court decreed that a candidate must be allowed to spend as much money as he pleases. The money is used to proclaim and publish his views and his virtues. To limit such expenditures, the argument goes, amounts to curtailing his first amendment right to free speech. Congress is expressly prohibited from enacting any legislation that tends to curtail that expression. The Court gave no thought to the possibility that massive campaign spending tends to drown out the free speech of the opponent who can’t match the war chest of the beg spender.
Another case is Santa Clara County vs. Southern Pacific Railroad Company. In an otherwise uninteresting case the judge writing the opinion stated that the company (corporation) was entitled to the right granted to persons under the fourteenth amendment. That was the germ of the “corporation = person” argument in the previous two cases cited.
In fact, the slogan should be “Repeal Buckley vs. Valeo” rather than “Repeal Citizens United.” My argument continues below the fold.
A very brief summary of the meaning of each of these three decisions follows:
Santa Clara County etc.: A corporation is a “person” at law.
Buckley etc.: Congress cannot enact a limit on how much money a candidate can spend to get elected.
Citizens United: Since a corporation is a “person,” it can give money directly to a campaign. It does not need to create a PAC and abide by certain rules of the Federal Election Commission.
It is worth pointing out that Citizens United also applies to labor unions. In addition, the limits on individual contributions seem to have disappeared. As a “person,” a corporation or labor union is not limited as to the size of the contribution to any particular candidate.
We are bothered (or at least I am) by the massive flow of money into political campaigns, especially Presidential campaigns. What can be done to stop this torrent? I think the Buckley decision is the one to undo. Without Buckley, Congress could establish limits on the amount of money any candidate could spend in running for a federal elective office. It might be related to the population of the district or constituency represented by the office holder. Undoing Citizens United or Santa Clara County wouldn’t stop the flow of money. Whether or not corporations are persons and whether or not they would have to give money through PACs instead of direct unregulated contributions, the money would flow like a flood. Buckley vs. Valeo should be the target of the reformers, not Citizens United.
Any campaign to create an amendment to undo Buckley vs. Valeo must face the argument of “free speech = money” the Court used to prevent Congress from placing limits on his own money an individual candidate can spend. The court did allow limits on contributions from other persons to the candidate’s campaign. The court did not deal with the argument that too much free speech by one candidate can drown out the free speech by an opposing candidate. The supporters of the amendment must make this case. It amounts to recognizing that free speech is not absolute. Courts have already decided that “crying fire in a crowded theater” is too much free speech. Outspending your opponent a hundred fold can also be too much free speech.