Two days ago the Supreme Court issued what is perhaps its most calamitous ruling in a century. In a 5-to-4 ruling in the case Citizens United v. Federal Election Commission, the court’s reactionary majority ruled that the government has no right to ban political spending by corporations in elections. The decision thrusts the U.S. back, as an editorial in the New York Times the day after had it, to the robber-baron era of the late 19th century.
The logic adopted by the conservative majority in order to legitimate undoing over a century of legislation and legal precedent intended to stem corporate power over electoral affairs is particularly noteworthy. For the reactionary majority, government attempts to limit corporations’ power to buy politicians is an unfair interference in their right to free speech, a right protected by the First Amendment.
But why should corporations have a right to free speech? Isn’t this something guaranteed to citizens rather than corporate entities in the Constitution? The recent decision in fact hinges on the idea that corporations have the same rights as individuals. This slide towards corporate personhood can be traced back to Santa Clara County v. Southern Pacific Railroad Company (1886), in which the Supreme Court ruled that corporations had the right to protection under the Fourteenth Amendment. The Fourteenth Amendment, one of the Reconstruction Amendments adopted following the Civil War, forbids states from denying to any person within their jurisdiction the equal protection of the laws. Twenty years after this amendment’s passage, it had become colonized by increasingly powerful corporate entities such as railroad companies, while its use to protect the rights of former slaves lagged as Jim Crow laws were put into effect.
This week’s outrageous court decision takes this slide towards corporate personhood to a radical extreme, in clear violation of a century of Congressional attempts to limit bribery and corruption in U.S. politics. In addition, it flies in the face of a century of legal precedent in which corporations have been classified as artificial creations of the state, created in order to achieve particular economic ends and with exceptional rights related to these ends. In his dissenting opinion, Justice John Paul Stevens wrote that the ruling threatens democracy and does profound damage to the Supreme Court as an institution.
Obviously citizens must lobby Congress to legislate against this unjust ruling. Concrete steps could include fixing the public finance system for presidential elections and establishing a public system for Congressional elections. Such steps are unlikely, however, to challenge the underlying slide towards corporate personhood that has gotten us into this fix.
What we really need, as Jamin Raskin recently suggested, is a citizens’ movement for a constitutional amendment declaring that corporations are not persons entitled to the rights of political expression. For details of the building mass movement, go here.