Center for Media and Democracy Projects
The Center for Media and Democracy, which publishes this resource, believes we must discuss the problems with the Citizens United decision from the standpoint of core principles--fundamental principles of American democracy and what it means for people to have the right to vote and have representatives who represent us in government, and not big corporations. It is our view that this decision goes to the heart of the key problem with our government: that it is far more responsive to corporate interests than to the needs of the people who live and work in this country. And, we do not believe that this major failure can be addressed through some minor tweaks to the law. Aiming for such an amendment is a powerful organizing tool that can help unite a variety of issues people care about, which have their roots in excessive corporate influence, and can open a path to create pressure for a range of solutions to help restore our democracy and achieve policies to serve the basic interests of the vast majority of the American people.
CMD Files Amicus Brief Defending Election Disclosure, Questioning Corporate Rights in Wisconsin.
The Center for Media and Democracy has filed a brief with the Wisconsin Supreme Court defending proposed disclosure rules passed in the wake of the U.S. Supreme Court’s Citizens United decision, rules that are being challenged by the Koch-funded group Americans for Prosperity. In the brief, CMD also questions whether rights granted by Wisconsin’s Constitution can be legitimately extended to corporations. The case was argued in September 2011, and we are awaiting a decision by the court. (Controversial Wisconsin Supreme Court Justice, David Prosser, recused himself from the case.)
Right-Wing Groups Challenge Expanded Campaign Disclosure Rules
At issue in the lawsuit are rules passed by Wisconsin’s election board last summer that would expand the scope of campaign ads requiring public disclosure of the ad’s funders. Under the old rules, ads that did not explicitly say “vote for X” or “vote against Y” were considered “issue ads” that could avoid disclosure laws, even if the ad was an obvious appeal to vote for or against a candidate. In September 2010, Americans for Prosperity brought suit and the Wisconsin Supreme Court enjoined enforcement of the rule, allowing the 2010 elections to take place without strong disclosure regulations. Secret spending increased dramatically in those elections, and citizens only knew the origins of about half of the dollars spent in 2010. Overall spending also increased with groups taking advantage of the Citizens United ruling, which allowed for-profit and not-for-profit groups to spend unlimited money influencing elections under the guise of free speech. The Wisconsin Supreme Court will now consider whether to lift the injunction and allow the rule to stand, or side with Americans for Prosperity and deem it unconstitutional.
In the brief, CMD notes that weak disclosure rules create an environment that undermines justifications for reduced restrictions on "independent expenditures." The U.S. Supreme Court has reasoned that political ads or expenditures by "independent" groups are of little value to candidates if they are not directly coordinated with the candidate. On that point, CMD discusses how new groups forming post-Citizens United are operating in a highly-coordinated manner, and reference Wisconsin Governor Scott Walker's request for independent expenditures in his February conversation with the phony "David Koch."
Do Corporate "Rights" Exist Under the Wisconsin Constitution?
CMD also argues that the Declaration of Rights in the Wisconsin Constitution may not extend to corporations. Section 1 in Wisconsin’s Declaration of Rights, Article I, states that “all people are born equally free and independent,” suggesting that all rights contained in the article, including free speech rights, are available only to those who are “born,” and not to artificial entities that come into existence through “incorporation.” The brief notes that “the corporation’s founders may open a bottle of champagne to toast the occasion, and perhaps even pass around cigars, but it seems unlikely that anyone would throw a baby shower.”
Read our article on the brief here.
Read the entire brief here.
Email firstname.lastname@example.org with questions or comments on the brief.
In February, the Center for Media and Democracy's Executive Director Lisa Graves
appeared on "Democracy Now!" to discuss David Koch
and his influence on the radical politics arising in Wisconsin and elsewhere to bust the unions and privatize public institutions.
"This is a situation in which a billionaire is exerting extraordinary influence, far more influence than tens of thousands of Wisconsin residents who have come out to protest his outrageous effort to destroy the unions here," Lisa said. She reminded viewers of the history of the Koch family and their political activities in the U.S.: "David Koch's father was a co-founder of the radical 1950s group the John Birch Society which opposed civil rights laws," Lisa stated. David Koch ran for president once back in 1980 on the Libertarian ticket, on a campaign platform much further to the right than Ronald Reagan, in which he opposed Social Security, a minimum wage and other safety-net programs. After he lost that race, he spent the last 30 years forming a series of groups to advance his agenda of far right-wing positions. You can watch the entire video of the interview here.
2010 Midterm Elections
The first election season after the U.S. Supreme Court's January 2010 Citizens United decision was the most expensive in U.S. history. The decision made it permissible for corporations, unions, and trade associations to contribute unlimited amounts of money directly from their general treasuries towards influencing the outcome of political campaigns. According to the non-partisan Center for Responsive Politics, at least $3.5 billion was spent by candidates, political parties, and interest groups, with the number expected to increase to $4 billion by the time all receipts are counted.
Republicans were most successful in the post-Citizens United campaign landscape, with much of the unlimited corporate money being channeled through newly-formed political advocacy groups with innocent-sounding names like American Action Network or American Crossroads. Even groups that existed in past elections like Club for Growth were bolstered by the Supreme Court decision and were able to raise unprecedented amounts of corporate money to influence elections like never before. The Sunlight Foundation estimates that 40% of outside interest group spending was made possible by the Citizens United decision. Conservative groups spent nearly $1 billion more than liberal groups in the 2010 election cycle.
What's more, many of those groups organized under the 501(c) section of the tax code, allowing them to raise and spend these unlimited funds without disclosing their donors. The Supreme Court's 2007 FEC v. Wisconsin Right to Life decision allows 501(c) groups to run "issue-oriented" political ads (ostensibly attacking a candidate's position on an issue, but obviously telling viewers to vote against the candidate) without disclosing the identities of the individuals and corporations who fund their efforts.
Significant Secret Spending Increases
Outside special interest group spending was at least four times greater in 2010 than in the last midterm election-- spending by these secretive outside groups jumped to $294.2 million in the 2010 election cycle from just $68.9 million in the 2006 cycle.
According to a January 2011 report from Public Citizen,
- Nearly half of the money spent ($138.5 million, or 47.1 percent) came from only 10 groups;
- Groups that did not provide any information about their sources of money collectively spent $135.6 million - 46.1 percent of the total spent by outside groups during the election cycle;
- Two “Crossroads” groups formed by Republican strategist Karl Rove combined to spend $38.2 million, more than any single group. Next was the U.S. Chamber of Commerce at $31.2 million; and
- Of 75 congressional contests in which partisan power changed hands, spending by outside groups favored the winning candidate in 60 contests.
While Americans still have only limited information about where these outside groups received their funding, they had even less information before they cast their vote in November. As of October 2010, only two of the top ten spending interest groups had disclosed any information about their funders (according to another Public Citizen report. What's more, of the $70.7 million of donations that had been disclosed through October 21, 2010, 0.12% of the individuals donating were responsible for 66.8% of the reported contributions.
Fred Wertheimer of Democracy 21, a nonpartisan campaign-finance-reform group, tells TIME Magazine that "shadow Republican groups formed by longtime party officials and party operatives are raising and spending hundreds of millions of dollars in this election. . . most of which is going to come in the form of secret undisclosed contributions." (Fred Wertheimer is the attorney who helped expose the illegal corporate campaign contributions funding the Nixon campaign).
According to the Washington Post, "one reason Democrats have benefited less from interest-group spending may be the party's - and President Obama's - message against the role of moneyed interests in Washington. And in his 2008 campaign, Obama discouraged such independent interest groups on the left from forming." Another reason, of course, is that large corporations tend to sponsor Republicans because the GOP is more likely to favor corporate shareholder's interests.
Coordinated, Independent Efforts
Many of the pro-Republican "independent" groups are not independent at all-- instead, they operate in a tightly coordinated and interconnected manner. For example, American Action Network and American Crossroads share office space, Republican Governor Association (RGA) chair Haley Barbour is an advisor to the American Action Network, American Action Network Chair Fred Malek is a top RGA fundraiser, and members of these groups and others regularly meet to coordinate strategy. The groups began their coordination efforts in meetings at Karl Rove’s home, and have given themselves the nickname the "Weaver Terrace group," named for the Washington street on which Rove lives. See this NPR graphic describing some of the networks.
Americans Want Disclosure and Campaign Limits!
On October 28, the New York Times reports that:
"The latest New York Times/CBS News poll found that nearly 8 in 10 Americans say it is important (including 6 in 10 who say “very important”) to limit the amount of money campaigns can spend. While majorities of each party’s registered voters agree that limits are important, Democrats (68 percent) and independents (59 percent) are more likely than Republicans (52 percent) to say it is “very” important.
Americans are even more supportive of full disclosure by campaigns with 92 percent saying it is important for campaigns to be required by law to disclose how much money they have raised, where the money came from and how it was used. There was little difference in the opinions of each party’s voters on this question."
Can't Congress do anything?
Political efforts to counteract the effects of Citizens United, like the DISCLOSE Act, have been unsuccessful thanks to united Republican opposition. The democrat-sponsored DISCLOSE Act would have required organizations involved in political campaigning to disclose the identity of large donors, and to reveal their identities in any political ads they fund. It would also have barred foreign corporations, government contractors and TARP recipients from making political expenditures. The Act passed the House, but failed to pass the Senate in September due to united Republican support. The final vote was 59 to 39, short of the 60 votes required. All Democrats voted to support the bill; two Republicans did not vote. During the election, a coalition of Democrats asked companies to pledge not to use corporate dollars on political campaigns, but few signed on.
Newly-elected Tea Party-backed candidates have vowed to block any campaign finance reform. Zach Carter theorizes they oppose efforts to crack down on secret corporate spending because the Tea Party's appeal "is based on its populist, grassroots image. If anybody knew that secret right-wing millionaires were bankrolling the entire operation, the “movement” would lose its luster."
For more about the groups who are trying to buy our elections with corporate dollars, please read our Special Report on Outrageous Election Spin and Misinformation, and follow the links at the end of the Report to our independent reporting on anonymous corporate campaign spending.
Also read our Sourcewatch articles in progress on groups such as American Crossroads, American Action Network, the Koch Brothers, the 60 Plus Association, Club for Growth, the Commission on Hope, Growth, and Opportunity, the Committee for Truth in Politics, and the other cleverly-named groups behind the ads, mailers, and robocalls. If you cannot find updated information about a group via the search toolbar on the left, please let us know.
Constellation of Public Interest Groups Marks the Terrible Anniversary of the Citizens United Decision
January 21, 2011 marked the first anniversary of the U.S. Supreme Court's Citizens United decision. To mark the event, the Center for Media and Democracy (CMD), Public Citizen, People for the American Way, MovetoAmend.org (MTA), and FreeSpeechforPeople.org (FSfP) delivered over 750,000 signatures calling on Congress to amend the Constitution and reverse this terrible decision. The Center also worked with the Coffee Party and the Backbone Campaign to organize a legal summit in DC to address the decision and its implications for numerous issues affecting Americans' lives and the American Dream. CMD's Executive Director, Lisa Graves, was asked to speak to these issues along with People for the American Way, Public Citizen, and Common Cause, and moderated a panel presenting amendment strategies by MovetoAmend and FSfP and others, and also participated in a panel on how to find common ground on these issues across the political divide. The events were broadcast on C-SPAN. The Center emphasized the need for a constitutional amendment, and that legislation like the DISCLOSE Act alone was not enough: "Disclosure is important, but is no substitute for the reforms we need. The problem is not just lack of disclosure but the corrupting influence by corporations on elections.". CMD is a co-founder of MTA's grassroots efforts, which is over 100,000 voices strong, and also works in the constellation of public interest groups, including People For, Public Citizen, Common Cause, FSfP, and other national groups to try to help improve coordination among these efforts to amend the Constitution.
How else can you get involved?
Organize locally! View resources on how to get more involved here, here, and here.
'Join the movement!' Join the Center for Media and Democracy and almost a million Americans in calling for a constitutional amendment. You can sign up to help with referenda against the idea behind Citizens United that corporations are entitled to constitutional "rights" and the pernicious notion that spending money equals speecch and thus cannot be regulated at Move to Amend and Movement for the People. If you are interested in focusing on fighting corporate constitutional rights you can also help support Free Speech for People. For local activities, check out the Move to Amend events page and calendar, or search for events on the Movement for the People website.
'Sign the Petition!' To stay up to date on the latest news on these and related issues, let the Center for Media and Democracy (CMD) know that you agree our laws should put "Americans Before Corporations" by clicking here if you agree that:
- It's wrong to give corporations the same rights as people, especially when it comes to our elections.
- A corporation isn't really a person.
- Corporations are created by statute to help maximize profit and limit legal liability.
- Corporations can't go to jail when they hurt or kill someone; they're different from real people.
- And they just aren't entitled to all the same rights that are constitutionally guaranteed to human beings.
- Plus, corporations have so much more money than most ordinary citizens that their influence drowns out the voices of we the people in our democracy.
Key Documents in Citizens United
The Supreme Court's decision, January 21, 2010
- Justice Anthony Kennedy's opinion for the 5-4 majority (Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) 
- Chief Justice Roberts concurrence (with whom Justice Alito joins) 
- Justice Scalia concurrence (with whom Justice Alito joins and with whom Justice Stevens joins, in part) 
- Justice Thomas' concurrence, in part, and dissent, in part 
- The dissenting option written by Justice John Paul Stevens (for Justices Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor) 
Briefs by the Parties
Select Briefs in Support of Regulating Corporations
Select Briefs in Opposition to Regulating Corporations
Constitutional Protections for Corporations, but Not Women?
In a January 2011 interview, Justice Antonin Scalia told California Lawyer Magazine that the 14th Amendment's equal protection provisions do not apply to women (or homosexuals), arguing that gender discrimination is constitutional and can only be outlawed by the legislature. Under Scalia's strict "originalist" interpretation of the constitution, he refuses to infer that women be included in the constitution's 14th Amendment protections, as the drafters of the amendment only intended that it apply to African-Americans (despite the Court in 1971 finding that the 14th Amendment did indeed apply to women, in Reed v. Reed, 404 U.S. 71). Because Scalia found that constitutional protections applied to corporations in Citizens United, though, many commentators have expressed outrage over this apparent anomaly. Others have written in support of Scalia's originalist position.
Scalia's originalist interpretation of the 14th Amendment to exclude women but protect corporations may be unjust, but if one looks exclusively at the intent of the drafters, it is consistent. There are indications that Congress intended the 14th Amendment to also apply to corporations. In San Mateo County v. Southern Pac. R.R., 116 U.S. 138 (1885), a member of the Joint Congressional Committee that drafted the 14th amendment argued that Congress intended the word "person" to include "legal" persons (corporations) as well as "natural" persons, and the Court accepted his argument. However, while Congress in 1868 did not mention women when drafting the 14th Amendment, they also did not mention Latinos, Jews, or Asians; under Scalia's strict originalism, then, these groups would not be afforded the constitutional right of equal protection under the law. While many have expressed anger over Scalia's comments, their dismay may be better directed at originalist interpretations of constitutional rights.