BY AMINU GAMAWA
What started as a 90-minute political campaign documentary against then- presidential candidate Hilary Clinton ended in the Supreme Court with a decision that was described by some critics as one of the worst since Dred Scot. “Hillary: The Movie,” was produced by Citizens United, a conservative nonprofit, as part of its campaign against the former democratic presidential aspirant, and was released during the Democratic presidential primaries in 2008.
The judgment, which relaxes the restriction on power of the corporations to directly spend on advertising during federal elections, was described by Harvard law Professor Lawrence Lessig as “proverbial fuel on the fire”. He notes that the issue is not whether corporations are silenced or their First Amendment right to free speech upheld. More importantly, the outcome is an assault on democracy, capable of promoting a system that will further erode the public trust in their elected officers. Lessig cautioned that decision would undermine the participation of the citizens in the democratic process and that it gives unfair advantage to corporations, whose financial prowess will give them a stronger voice than the electorate.
Lessig heads Harvard’s Safra Center for Ethics, which studies the intersection between politics, interest groups and corruption in the U.S. politics. As part of the reading for a course convened by the program, I came across a very interesting article by an expert on political corruption, Zephyr Rain Teachout (found in the Cornell Law Review, Vol. 94, No. 341, 2009, for those who are interested), which I found very relevant to the Court’s decision in Citizens United.
Teachout writes that the Framers of the Constitution were obsessed with corruption and saw it as one of the greatest threats to democracy. They designed the system in such a way that corrupt leaders will not only loose their positions, but also their reputation. The Founding Fathers built mechanisms into the Constitution to safeguard democracy by ensuring transparency, accountability and citizens’ participation in the political process. The independence of the political office holders from other special interests was of paramount importance to the Framers.
Teachout writes that “corruption was discussed more often in the constitutional convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened. Madison recorded the specific term corruption fifty-four times, and the vast majority of the corruption discussions were spearheaded by influential delegates Madison, Moris, Mason, and Wilson. The attendees were concerned about the corrupting influence of wealth, greed, and ambition.” It is not an overstatement to say that the Framers actually saw the Constitution as an instrument to fight corruption.
The Framers defined political corruption to include “self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of dependent relationships, public decisions to serve executive power made because of dependent relationships, and use by public officials of their positions of power to become wealthy”.
Their efforts to curb corruption in the political process is visible in issues including the regulation of elections, term limits, limits on holding multiple offices, limitations on accepting foreign gifts, the veto power, the impeachment clause, and provisions for the separation of powers, among other measures, with a view to ensure that leaders represent the interest of their constituency and not personal interests. In the words of Teachout, “taking seriously the architecture [of the Constitution] requires more than passing knowledge of what motivated the choice of architecture. Political corruption is context without which other specific words don’t make sense; it is embodied in the text itself through other words that can’t be understood without understanding corruption”.
History has shown that when leaders put their self-interest above those who elected them, it undermines the trust of the people in the process and inevitably leads to collapse of the democratic system. The Roman and Greek empires are classic examples. The danger of democracies leaving political corruption unchecked is succinctly captured by Teachout: “voters will stop voting, people will stop running for office, and citizens will stop making serious efforts to read news and understand the public issues of their day, because they will believe that such efforts are futile,” she writes.
In McConnell v. FEC, 540 U.S. 93, which the Court overturned in Citizens United, the Court had made the following powerful comments:
“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the office holder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means to prevention is to identify and remove the temptation.”
Ignoring the threat of corruption to democracy is, therefore, a serious problem that cannot be taken lightly. I agree with Teachout when she writes that “internal decay of our political life due to power-and-wealth seeking by representatives and elites is a major and constant threat to our democracy. History provides some powerful tools to allow us incorporate the anti-corruption principle into the constitutional law of democracy. We should pay attention to it”. The recent decision of the Supreme Court ignores this history, undermining the Constitution’s efforts to curb corruption at the highest level.
The 5-4 conservative majority decision was delivered by Justice Anthony Kennedy ’61, and concurred in by Justice Samuel Alito, Chief Justice John Roberts ’79, Justice Clarence Thomas and Justice Antonin Scalia ’60. Justice Sonia Sotomayor began her Supreme Court career with a dissent. She joined four other liberal justices in disagreeing with the majority decision. The dissenting judgment delivered by Justice Stevens severely criticized the majority court for ignoring the dangerous consequence of the decision on democracy:
“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 wrote.
The decision overruled a decade of precedent laid down in McConnell, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002, which restricted campaign spending by corporations and unions, as well as Austin v. Michigan Chamber of Commerce, 494 U.S. 652, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates.
In his weekly address on Saturday, President Barack Obama ’91 criticized the decision as “a huge victory to the special interests and their lobbyists”. The President expressed his disappointment with the ruling, saying that he could not “think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections”. He noted that even foreign corporations would now have say in U.S. politics; candidates that disagreed with corporations would come under serious
attack from the corporations during election.
Obama went on to observe that “all of us, regardless of party, should be worried that it will be that much harder to get fair, common-sense financial reforms, or close unwarranted tax loopholes that reward corporations from sheltering their income or shipping American jobs offshore”. He also cautioned that the decision makes it “more difficult to pass common-sense laws” to promote energy independence or expand health care.
The danger is clear!
The competition will now be intense among the corporations to producing the highest number of Senators and Representatives. Doesn’t this undermine the role of the public in the American democracy? Can individuals’ contribution to candidates now count in the campaign process? Will this be the last Congress that is truly elected by the people? How much would this decision contributing in promoting institutional corruption? I am sure most politicians will be more concerned about pleasing the corporations than their constituencies. It will be dangerous for any of them to fall out with the corporations.
American democracy has been a model to many countries across the globe. But the recent decision by the Supreme Court legalizing direct corporate participation which over turn a time revered restriction on the corporation is a worrisome development that deserve concern of anyone that is interested in American democracy’s future. Citizens United has introduced a new era in the U.S. politics.
The Constitution’s “We the People” has gradually become “We the Corporations”. Equating corporations with human beings undoubtedly undermines the participation of individual citizens in the political process. Election into political office under the new regime will largely depend on having the highest donation from the corporations. Corporations and their interests, which sometimes include interest of foreign nationals, will now have the strongest voice in the U.S. politics.
It will not be surprising to see Blackwater, Wal-Mart, Exxon and other corporations being better represented in Congress than citizens, whose interest and participation the Constitution seeks to preserve. This is an unwelcome development that anyone concerned about preserving the U.S.’ long-cherished democracy must oppose.
The matter of democratic integrity, transparency and accountability transcends the usual liberal/conservative or Democrat/Republican divide. It is an assault on democracy and negation of the text and original understanding of the Constitution as understood by the Founding Fathers, who strived to craft a document that would preserve democracy by protecting the interest of the electorate over and above other interests.
One might ask if there is anything Congress can do. Even before the decision was announced, an advocacy group called Change Congress was working to pursue the passage of a bipartisan bill called the Fair Elections Now Act. The bill is sponsored by congress men Sens. Dick Durbin (D-IL) and Arlen Specter (R-PA), and Reps. John Larson (D-CT) and Walter Jones (R-NC).
“Under this legislation, congressional candidates who raise a threshold number of small-dollar donations would qualify for a chunk of funding—several hundred thousand dollars for House, millions for many Senate races. If they accept this funding, they can’t raise big-dollar donations. But they can raise contributions up to $100, which would be matched four to one by a central fund. A reduced fee for TV airtime is also an element of this bill. This would create an incentive for politicians to opt into this system and run people-powered campaigns.”
President Obama said that he has instructed his advisers to work with Congress on a forceful, bipartisan response. In a New York Times op-ed, David D. Kirkpatrick wrote that because of the enormous threat of this decision to democracy, some members of Congress are working hard to introduce new laws that will, cure the defect by either
• Imposing a ban political advertising by corporations that hire lobbyists, receive government money, or collect most of their revenue abroad;
• Tightening rules against coordination between campaigns and outside groups so that, for example, they could not hire the same advertising firms or consultants; or
• Requiring shareholder approval of political expenditures, or even forcing chief executives to appear as sponsors of commercials their companies pay for.
What is really necessary need, as Professor Lessig puts it, is an alternative, “Not the alternative that tries to silence any speaker but an alternative that allows us to believe once again that our government is guided by reason or judgment or even just the politics of the people in a district and not by the need to raise money.”
Aminu Gamawa is an LL.M. student from Nigeria.