CHANGING BASIC SOCIAL STRUCTURE?CITIZENS UNITED vs. FED ELEC COM

What is “Citizens United”? 2 Things:

1. A Political Action Committee2. A Supreme Court Case

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CITIZENS UNITED: The Political Action Committee • Founded by Floyd Brown

(DC Political Consultant)

• Funded by Koch Bros (Own 2nd Largest U.S. Private Co.)

• Goal: Promote Limited Govt; Conservative Causes; Strong Families; Private Enterprise

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CITIZENS UNITED:The Supreme Court Case

• Original Aim of Citizens United: Produce Anti-Hilary Clinton Video• Case Presented in 2008 • Goal: Change Law Which Limited

Corporate & Union Paid Political Ads

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SUMMARY OF ISSUES

• Citizens United Wanted to Broadcast Anti-Hilary Clinton Ads in 2008 Election Campaign

• Included a Video Criticizing Hilary Clinton• Ads Violated 2002 “Bipartisan Campaign

Reform Act” (McCain-Feingold Act) … • Which Barred Corporations & Unions From

Paying for Media on Candidates Just Before Elections

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HISTORY OF ISSUES

• Long-Term Tradition Had Prevented Such Corporate Spending on Campaign Publicity

• Case Had Gone through Lower Courts• Went to Supreme Court in 2008• Supreme Court Overturned a Century Old

Precedent Prohibiting Such Expenditures• Result: Greatly Increases the Amount

Corporations Can Spend on Elections

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ROLE OF FEDERAL ELECTION COMMISSION

• Federal Election Commission (FEC) Was Defendant in Case

• FEC Is Responsible for Managing Elections…• Citizens United Sought to Bar the FEC from

Preventing Such Corp. Expenditures • So Citizens United Sued the FEC …• Case Made Its Way Through Lower Courts• Appeal went to U.S. Supreme Court in 2008

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SUPREME COURT RULING• Court Declared Government Restriction on

Corporations & Union Campaign Expenditures Unconstitutional

• Stated Anti-Clinton Broadcast Should Have Been Allowed

• Decision Overturned Century-Old Precedent Allowing Govt to Regulate Such Spending

• Case Has Greatly Affected The Way Corp. & Unions Can Spend On Elections

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SUPREME COURT VOTING PATTERN

• Very Close Decision (5-4)• Voting in Majority: • Kennedy, Roberts, Alito, Scalia, Thomas – (The Traditional Conservatives)

• Voting in Minority: • Stevens, Ginsburg, Breyer, Sotomayor– (The Traditional Liberals)

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1. Barring Independent Political Spending Squelches Free Speech – Violates 1st Amendment

2. 1st Amendment Protects Speech – Regardless of Speaker (Organizations as Well as Persons)

3. Gov’t Has Right to Prevent Corruption – but Cannot Determine Whether Large Campaign Expenses Constitute Corruption

4. Public Has Right to Hear All Information – Spending Limits Prevent This

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MAJORITY ARGUMENT

MINORITY ARGUMENT1. 1st Amendment Protects Only Individual

Speech – Not Speech of Associations2. Government May Prevent Corruption –

Campaign Spending Which Influences Legislators Can Produce Corruption

3. Government May Prevent the Appearance of Corruption – Such as Placing Limits on Corporate & Union Spending

4. Public Has Right to Hear All Information – But Corporate Messages Overwhelm All Others

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PUBLIC RESPONSE TO CITIZENS UNITED

PRO: Advances Free Speech – Gives All Corp. Equal Power to Media (Which Always Had It)NEUTRAL: Simply Increases Volume of Political Ads – Wouldn’t Affect Public Discussion Much ANTI: “Gives the Special Interests & Their Lobbyists Even More Power in Washington…” [vs.] “Average Americans Who Make Small Contributions to … Candidates” (Pres. Obama)

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EFFECTS OF CITIZENS UNITEDEXTREME INCREASE IN POLITICAL SPENDING

(Center for Responsive Politics) 12

SUMMARY: CITIZENS UNITED IMPACT

• 2012 Election – 1st Since Citizens’ United• More Than 2x Political Spending As Any

Previous Election• Research Indicates Increase Nearly All the

Type Citizens United Allows• Does It Determine Election Winners? Some

Suggest It Does Not (I.e., People Still Vote the Way They Think)

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ALTERNATE POSITION (“RECLAIM DEMOCRACY”)

1. U.S. Founders of U.S. Restricted Corporations – Didn’t Intend to Give Constitutional Protection2. Gov’t Has Authority to Prevent Corruption & Its Appearance – This Is Lacking Here3. Majority Claims Spending Limits Prevent Full Information – Not True – We Get A Lot – This Approach Allows for a Monopoly of Information4. Court Violated Stare Decisis – Overturned Its Own Decisions to Rule Here – Could Have Ruled Narrower (E.g., McCain-Feingold Did Not Apply to Video) – Went Beyond What Plaintiffs Asked

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OTHER REASONS TO AVOID UNLIMITED SPENDING BY CORPORATIONS & UNIONS

1. Prevents Meritocracy of Ideas (E.g., Ideas Win Not by Merit but by Level of Spending!)2. Has Influence Beyond the Ads – Politicians Dependent Upon Wealthy Donors’ Support3. Unlimited Political Spending Focuses on Attack Ads – Creates Unthinking Partisanship – Not Thoughtful Discussion4. Gives Large Corp Too Much Advantage Over Small Businesses (Amer. Indep. Business Assn.)

5. Need to Protect the Rights of Individuals & Protect Integrity of Elections (Most from Reclaim Democracy) 15

THE BIGGER PICTURE• Citizens United Not an Isolated Problem• Long-Term Increase in Corporate Political

Power – at Expense of Individuals• Corporations Use Power - Receive Protections:• Obtain Influence in Govt Process• “Buy” Influence of Politicians • Gain Right to Hide Their Actions, Avoid Govt

Regulation (EX: Monsanto Prevent Disclosure of Genetic Manipulation of Food) (Reclaim Democracy)

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CITIZENS UNITED PART OF BIGGER ISSUE

• Largest Corp Taking Over Power from Citizens• Corp Personhood = Protection to Individuals• Corporations Are Persons? Or…• Non-Persons Have Free Speech Rights?• Citizens United Latest in a Long Line of

Decisions Granting Constitutional Rights to Corporations

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POSITION OF OPPONENTS

• Under Current Legal Conditions, Only Way to Strip Corp of Constitutional Rights is Through a Constitutional Amendment

• EX: Other Recent S. Ct. Decision on Campaign Finance:

• Same 5-4 Decision as Citizens United[Law: Ariz Citizens Clean Election Act (passed 1998) Cases: Ariz Free Enterprise Assn v. Bennet; McComish v. Bennet]

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GROUPS SEEKING TO REVOKE MOVE TO EXTREME CORPORATE POWER

• Demos• Common Cause• Free Speech for People• Program on Corporations Law and Democracy• Public Citizen (Organization Established to

Maintain Individual vs. Corporate Rights)

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UPDATE: COMPANY DOE CASE (Pt. 1)

• Facts of Case: • Child Injured by a Product• Rept Submitted to Consumer Product Safety

Commission (Estab. Public Citizen, & Others)• Co. Making Product Sued to Suppress Report• Co. Asked That Co. Identity Be Hidden &

Hearing Secret [Public Citizen Email, 11/9/13, Scott Michelman, Pub. Cit. Atty]

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UPDATE: COMPANY DOE CASE (Pt. 2)

• Request to Suppress Identity Granted by Judge • Case Lasted 9 Months• Final Decision Made Public 3 Months Later• Ruling Published – With Items Blocked Out: Name of Co – Product – Witnesses – Facts • Q: How Can People Protect Themselves, Their

Children – If They Cannot Find Out What Products Prove Unsafe? Who Makes Them? What Evidence Exists? Etc.?

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CONCLUSION OF “PUBLIC CITIZEN”

• Public’s Right of Access to Court Proceedings Goes Back to Earliest Origins of U.S. Courts

• Exceptions Made Only to Protect Most Sensitive Cases (Children; Persons at Risk of Retaliation)

• These Cases Extend Personal Protect Rights to Non-Human Corporate Entities – Who Wish to Avoid Responsibility for Their Actions

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TURNING CITIZENS UNITED ON ITS HEAD

• Recent News Update (11/15/13)• Corporations Claim Rights of Individual

Citizens (Free Speech; Confidentiality)• BUT: Corporations Now Claim Right to Take

Away Rights of Individual Citizens• EX: 2 Reports: Texas Woman; Utah Couple• Customers Fined $3,500 for Writing Negative

Review of Company Not Filling Order

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BASIS FOR SUIT• Company Inserted Statement into On-Line

Order Form …• “Non-Disparagement Clause”:• Customer “Promises Never to Say Anything

Negative Re the Company”• Consequence? Corporations Now Have

Individual Rights Individuals Do Not!• Refs: www.dailymail.co.uk... couple charged;

www.hutv.com.news ; www.offthegridnews.com; www.businessinsiders.com

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CONCLUSION

Questions?Comments?

What Is Likely Outcome If Pattern Continues?Is This Appropriate?Is This Dangerous?

What Is the Likelihood of Change?

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