What Harvard Law Students Should Know About Corporations and Campaign Finance

The greatest impediment to dealing with the greatest challenges facing our nation and planet — preventing catastrophic climate change, addressing wealth and income inequality, ensuring health care for all, and much more — is concentrated corporate power. And because corporations are legal creations of the state, the problem of corporate power is, ultimately, a legal question: What legal rights, responsibilities and restraints do We the People impose on our creations?

There are a multitude of sources of corporate power, and no one approach will be sufficient to reassert popular sovereignty over our corporate creations. But amidst a host of desperately needed reforms, reducing corporations’ political power is an absolute necessity; and a key imperative means of reducing their political power is through amending the Constitution. I favor a constitutional amendment to establish that for-profit corporations do not have claim to constitutional rights broadly, but here focus on a more particular issue: an amendment to enable control of election-related spending by corporations and the corporate class.

Following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, corporations are now endowed with First Amendment political speech rights comparable to those of real, live, breathing human beings; and, more specifically, have been bestowed with the power to make unlimited expenditures from the corporate treasury to influence election outcomes (corporations do not, yet, have the right to make direct contributions to candidates). Citizens United and a host of other decisions have also empowered the super rich to devote unlimited amounts of money to outside groups aiming to influence elections (these include Super PACs, 501(c)(4) social welfare groups and trade associations); overturned spending limits; undermined effective public financing systems for elections; made it impossible to control spending by self-financing candidates; overturned a limit on the total amount of money the super rich can contribute to candidates; and much more.

The result is something very much resembling a plutocracy – rule by the wealthy elite – and a campaign finance system completely dominated by a very tiny number of corporate and super rich donors. Consider:

• The top 100 donors were responsible for more than half of all Super PAC contributions in 2012, with 2014 sure to show similar results.
• With rising income inequality, the top .01 percent of the population now take a staggering 4 percent of national income. But that same .01 percent of the population is responsible for more than 40 percent of all campaign contributions.
• Through their vast network, the Koch Brothers have announced plans to spend nearly $300 million in the 2014 elections. How consequential is this? The Koch Brothers are responsible for one in ten political advertisements on TV this election cycle.

We’ll never know how much the Koch Brothers actually spent, because their organizations are required to report only a portion of what they spend. Indeed, in the 2012 election, the Kochs ran most of their money through something called Freedom Partners – organized as a trade association, though it is effectively a political committee – that no one even knew existed until after the 2012 election was complete!

Is all of this an abstraction? No, it has very direct impact on virtually every national policy fight. Consider just the issue of climate change. The problem is well encapsulated by Senator Sheldon Whitehouse, D-Rhode Island: “The polluters give and spend money to keep polluting. … Not truth, not science, not economics, not safety, not policy, and certainly not religion, nor morality — nothing supports climate denial. Nothing except money. But in Congress, in this temple, money rules; so here I stand, in one of the last places on Earth that is still a haven to climate denial.”

The American people get this. A new poll commissioned by Public Citizen and conducted by Lake Research Partners, a Democratic polling firm, and Chesapeake Beach Consulting, a Republican polling firm, found that voters hold an unfavorable view of spending in elections by special interests and lobbyists by an astounding six to one margin. This opposition is roughly equal among Republicans, Democrats and independents. By the same six to one margin, voters say that reducing the influence of money in politics is an important issue.

The poll found that voters favor a constitutional amendment by a 61 to 28 percent margin – a more than 2-1 ratio. Presented with these arguments for and against an amendment, Republicans strongly favor the amendment — by a 54 to 36 percent margin. Other polls find even stronger support.

To understand how mind-boggling are these levels of demand for reform, consider that only three-quarters of Americans believe the earth revolves around the sun.

The public demand for action and a large-scale grassroots organizing drive – more than 550 cities and towns, and 16 states have passed resolutions or the equivalent calling for a constitutional amendment to overturn Citizens United – has forced the issue on to the agenda in Washington.

In September, the U.S. Senate voted on the Democracy for All amendment, introduced by Senator Tom Udall, D-New Mexico. The amendment, which simply states that Congress and the states shall have the authority to impose reasonable regulation on election-related spending, received 54 votes, with 42 opposed. This was short of the 60 needed to clear a procedural hurdle, as well as the 67 needed to pass a constitutional amendment.

The vote was on party lines, but there was nothing inevitable about unanimous Democratic support. In 2010, only four senators favored an amendment; only 26 did in 2012. Even this year, it was a grassroots push that ensured all Democrats would vote for the amendment.

Even though many Republican senators hate Citizens United, hate the current campaign finance system and almost surely favor an amendment, none voted for the Democracy for All amendment. This was due to the party discipline exercised by Senate Minority Leader Mitch McConnell (R-Ky.) – a degree of control that will eventually recede as public demand for action grows even stronger.

We are now amidst a period of constitutional crisis, with corporations and the super rich empowered by an activist Supreme Court to exert a stranglehold over our purported democracy. But we are also in a period of constitutional amendment ferment.

It should be a time of extraordinary excitement at law schools across the country, with fevered debates not only about whether the constitution should be amended, but how, and with what precise wording. Several Harvard Law scholars are notably engaged in the debate, but from Harvard and law schools across the country, we need way more voices, with more focused engagement. The American people are engaging in the serious and purposely effort of amending our core democratic document. They want to make the law advance popular sovereignty and democratic and equality values. They need help from the nation’s legal scholars.