The Case Against Corporate Speech

The Wall Street Journal Opinion, February 11, 2010

By Ralph Nader And Robert Weismann

Last month, by a vote of 5 to 4, the U.S. Supreme Court gave carte

blanche to the world’s largest corporations to spend unlimited sums of

money to support or oppose candidates for elected office. Big Business

domination of Washington and state capitals will now intensify.

The case of Citizens United portends dire consequences for the nation’s

constitutional premise of “we the people,” not we the corporations. Our

constitution, at its origins and through all of its amendments, makes no

mention of corporate entities, only human beings and their government.

For 120 years, it was not Congress but the Supreme Court that expanded

the definition of “persons” to include for-profit corporations for the

purposes of applying constitutional protections. For 30 years, the court

has granted First Amendment speech protections to corporations as

“artificial persons.”

But not until last month has the court declared that the First Amendment

gives corporations the right to spend unlimited money to influence

elections. The court majority, self-styled believers in precedent and

judicial restraint, overturned two major Supreme Court decisions and

reversed decades of campaign-finance laws aimed at preventing

corporations from having undo influence over local, state and national

elections.

Granted, existing campaign-finance rules have been inadequate. Regular

news reports document how corporate spending debases elections and

elected officials. But that doesn’t mean things can’t get worse. The

court has challenged whatever social mores are left that view

no-holds-barred corporate cash register politics as unseemly.

The disparities between individual contributions and available corporate

dollars mock any pretense of equal justice under the law. A total of

$5.2 billion from all sources was spent in the 2008 federal election

cycle (which includes 2007 and 2008), according to the Center for

Responsive Politics. For the same two-year period, ExxonMobil’s profits

were $85 billion. The top-selling drug, Pfizer’s Lipitor, grossed $27

billion in sales during that time.

Such disparities invite corporations to spend whatever they believe

necessary to further entrench the corporate state. The money they now

spend will be used to reward friends and punish opponents.

Corporations know that money makes a big difference when it comes to

blocking protections for workers, consumers and the environment. Wall

Street, health insurance and drug companies, fossil fuel and nuclear

power companies, and defense corporations have been hard at work

defeating common-sense reforms that would make them more accountable.

Do we want more elected officials to believe that to challenge corporate

agendas is to risk their career?

There is every reason to expect that there will be much more direct

corporate electoral funding in the wake of Citizens United. Funneled

without limit through trade associations and shadowy front groups able

to run vicious attack ads without identifying their corporate patrons,

such lucre will deter good candidates from running for office because

they won’t want to have anything to do with such dirty politics.

What can be done about this accelerating drift into the muck?

In the absence of a future court overturning Citizens United, the

fundamental response should be a constitutional amendment. We must

exclude all commercial corporations and other artificial commercial

entities from participating in political activities. Such constitutional

rights should be reserved for real people, including, of course, company

employees, to enhance a government of, by and for the people.

Corporations are not humans. They do not vote. They should not be

accorded a constitutional right to influence elections or public

policies, especially given their enormous embedded privileges and

immunities compared to real people.

While the arduous amendment process is underway, the progressive

response to Citizens United rests with several legislative and

administrative initiatives.

First, the Fair Elections Now Act in the House and Senate would provide

candidates a base of funding to run viable campaigns without being

indentured to corporate money. But these bills would not prevent

corporations from overwhelming the public funding.

Second, a strong shareholder-protection policy should limit corporate

political spending. This would require executives to get support from an

absolute majority of their shareholders before spending any money on

politics.

Third, as the nation’s largest customer, the government could refuse, by

statute or executive order, to contract with or provide subsidies,

handouts and bailouts to any company that spends money directly in the

electoral arena. This would help avoid corruption. No longer would

Citigroup or General Motors, which were saved by taxpayers and are wards

of Washington, be able to lobby as if they were stalwarts of

sink-or-swim free enterprise.

As Justice John Paul Stevens, writing for the minority in Citizens

United, demonstrated, the Framers did not intend for the First Amendment

to confer protections on businesses beyond freedom of the press. The

robust guarantees of the First Amendment are vital for real, live human

beings, to ensure their expressive and democratic participative rights

are protected. There can be no level playing field between the giant

multinational corporations and individual citizens without such

differential rights.

It is worth recalling that representative democracy is rule by the

people. Corporations, first chartered into existence over 200 years ago

by the states, were meant to be our servants, not our masters.

Especially in the aftermath of Citizens United, it is time to right this

relationship.

Mr. Nader is a consumer advocate. Mr. Weissman is president of Public

Citizen.