In what could prove to be the most consequential Supreme Court decision in decades, all five of the Court’s conservatives joined together today to invalidate a sixty-three year-old ban on corporate money in federal elections. In the process, the Court overruled a twenty year-old precedent permitting such bans on corporate electioneering; and it ignored the protests of the four more moderate justices in dissent. As Justice John Paul Stevens wrote for the dissenters:
Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power. … At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
The majority, for its part, claimed that corporate political spending must be protected to prevent “taking the right to speak from some and giving it to others,” but they are simply wrong to claim that this is a case about free speech. Prior to Citizens United, no law prohibited anyone from saying anything they wanted. Corporate CEOs and other wealthy individuals could spend their own massive salaries to run political ads on TV. People who are less rich than corporate CEOs could pool their money together via organizations. The only thing that wasn’t permitted before Citizens United is that the CEO of Bank of America could not tap into Bank of America’s massive, multi-billion dollar treasury to defeat any lawmaker who thinks that TARP banks should pay back the federal government after it took expensive and unprecedented steps to prevent a total collapse of the U.S. banking system.
Ultimately, however, today’s decision does far more than simply provide Fortune 500 companies with a massive megaphone to blast their political views to the masses; it also empowers them to drown out any voices that disagree with them. In 2008, the Obama and McCain campaigns combined spent just over $1.1 billion, an enormous, record-breaking sum at the time. $1.1 billion is nothing, however, compared to the billions of dollars in tax subsidies given to the oil industry every year, or the $117 billion fee President Obama wants to impose on the Wall Street bankers who created the Great Recession. Indeed, with hundreds of billions of dollars of corporate profits at stake every time Congress begins a session, wealthy corporations would be foolish not to spend tens of billions of dollars every election cycle to make sure that their interests are protected. No one, including the candidates themselves, have the ability to compete with such giant expenditures.
The good news is that lawmakers are already considering ways to mitigate the damage caused by Citizens United, and a number of options exist, such as requiring additional disclosures by corporations engaged in electioneering, empowering shareholders to demand that their investment not be spent to advance candidates they disapprove of, or possibly even requiring shareholders to approve a corporation’s decision to influence an election before the company may do so. At the end of the day, however, many extremely well-moneyed corporations will still succeed in unleashing their treasuries on the electorate, and drowning out opposing voices.