Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (5 page)

Justice Anthony Kennedy wrote the opinion in
Citizens United
for the Court. At first, Justice Kennedy’s opinion sounds like a ringing defense of free speech and American democracy. He writes that the government may not “ban speech.”
Yes!
All “speakers”
must be allowed and no “voices” may be silenced.
Yes!
The government cannot restrict a “disadvantaged person or class” from speech.
Yes!
All “citizens, or associations of citizens,” must have an unfettered right to get their views about candidates or anything else out to the people.
Of course!

But wait. Who are these “voices,” “speakers” and “disadvan-taged persons”? They are corporations, particularly global corporations with
trillions
of dollars in revenue and profits. And what was this onerous “ban on speech”? A rather weak law that said corporations may not, within sixty days of an election, spend corporate “general treasury” money to support or attack candidates for federal office. That’s it.

The Court announced its decision on a cold January day in 2010 when most Americans were anxious about millions of job losses, angered by national debt and massive deficits deepened by corporate bailouts, and worried about our military and global strength overstretched by repeated distant wars while China, Germany, and other economic powerhouses at peace charged ahead. Now the Supreme Court says corporations are “disadvantaged persons” with “rights” that trump and invalidate our laws?

Since the decision,
Citizens United
has been widely recognized as a notorious and dangerous mistake by the Court. First, the four dissenting justices on the Court, led by eighty-nine-year-old Justice John Paul Stevens, sounded an alarm. Justice Stevens’s ninety-page dissent, among his last work before retiring, may be his greatest legacy.

Stevens, born and raised in Chicago, had enlisted in the U.S. Navy on December 6, 1941, the day before the Japanese attack on Pearl Harbor, and received the Bronze Star for his service in World War II. He then began a twenty-five-year career as a lawyer and represented numerous corporations in antitrust cases. In 1969, Stevens led the investigation and prosecution of corrupt
judges in Illinois and was hailed for his fair, honest, and determined approach. A Republican, he was appointed to the Court by President Gerald Ford in 1975. It would be difficult to find a more honest, moderate, and balanced judge.

When the justices assembled to announce the
Citizens United
decision, Stevens took the unusual step of reading his dissent aloud from his seat in the Supreme Court’s public chamber. While the reading of the elderly judge at times faltered, his words were unmistakable. Stevens called the Court’s action in
Citizens United
a “radical departure from what has been settled First Amendment law.” He blasted the Court’s conclusion that corporations, “like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” Justice Stevens said that “glittering generality” obscured the truth about what
Citizens United
really meant for America, already suffering from undue influence of corporate power. Then Justice Stevens said this:

The Framers [of our Constitution] thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues [on the Supreme Court], they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind….

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.

Justice Stevens and his fellow dissenters on the Court were not alone. President Obama called the decision a “strike at the heart of democracy.” Others, such as Maryland Congresswoman Donna Edwards, called
Citizens United
the worst case since the Supreme Court ruled in the 1856 case of
Dred Scott
v.
Sanford
that African Americans could not be citizens. Republican Senator John McCain said he was “disappointed,” and conservative Tea Party activists went further. A founder of the Tea Party said, “I have a problem with that. It just allows them to feed the machine. Corporations are not like people. Corporations exist forever; people don’t. Our founding fathers never wanted them; these behemoth organizations that never die…. It puts the people at a tremendous disadvantage.”
³

Polls showed that more than 75 percent of Independents, Republicans, and Democrats alike rejected the decision. People formed groups such as Free Speech for People and Move to Amend to launch a constitutional amendment campaign to overturn the decision and corporate rights, and more than a million Americans quickly signed petitions calling on Congress to send an amendment to the States for ratification. Several amendment bills were introduced in the House and Senate, and resolutions condemning the decision and calling for a constitutional amendment were introduced in towns, cities, and state across the country.

Why this reaction? Most Americans understand the fundamental truth that corporations are not people and that large corporations already have far too much power in America. The real people are not buying the metaphors sprinkled throughout
Citizens United
and know that corporations are not “speakers” or “disadvantaged persons.” Corporate money is not a “voice.”

Roots of
Citizens United:
Earth Day 1970

If so many understood at once the crisis that
Citizens United
poses for America, how did it happen? To answer that question, we need to go back to the 1970s and the formation of the organized corporate campaign to put American democracy on a leash. First came a wave of engaged citizens and responsive government; then came the corporate reaction.
Citizens United
could not have happened without the deliberate drive for corporate power and rights that began more than three decades ago.
⁴

After a century of industrialization, Americans had by 1970 had enough of corporations using our rivers, air, oceans, and land as sewers and dumps, leaving most people and communities with the costs and giving the profits to shareholders. One day in April 1970, twenty million Americans of every age and political party came out into the streets and the parks to celebrate the first Earth Day. They demanded a better balance between corporations and people and better stewardship of our land, water, and air. Look at the photos from this first Earth Day and you will see families with children, men in suits and ties and neatly dressed women, working- and middle-class Americans, people of all ages and races.

These millions continued a longstanding American principle of guarding against concentrated corporate power that might overwhelm the larger interests of the nation. This nonpartisan tradition goes back not only to Franklin Roosevelt’s New Deal, not only to Theodore Roosevelt’s Square Deal, but to the founding of America. James Madison, a chief architect of the Constitution, wrote in the early 1800s that “incorporated Companies with proper limitations and guards, may in particular cases, be useful; but they are at best a necessary evil only.”
⁵Always willing to be more colorful, Thomas Jefferson said that he hoped to “crush in its birth the aristocracy of our monied corporations, which dare
already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
⁶

In the 1830s, President Andrew Jackson and his allies battled against the partisan activity of the Second Bank of the United States, a corporation. Jackson pressed the urgent question of “whether the people of the United States are to govern through representatives chosen by their unbiased suffrages or whether the money and power of a great corporation are to be secretly exerted to influence their judgment and control their decisions.”
⁷Even President Martin Van Buren, hardly a radical, warned of “the already overgrown influence of corporate authorities.”
⁸

That first Earth Day in 1970 again awakened our government to the necessity of restoring the balance of corporate power and public interest, of those who control powerful corporations and the rest of Americans. With a Republican president in the White House and bipartisan support in Congress, the extent of reform that quickly followed in the months and a few short years after the first Earth Day remains astonishing: