Arguments Heard Today Suggest Precedents Limiting Corporate Political Influence Under Threat
Washington, DC — Today's argument in Citizens United v. FEC suggests that the Roberts Court is poised to sweep aside century-old restraints on corporate domination of the political marketplace — unless the wisdom of the Court's newest member proves persuasive when the decision is ultimately written.
As Justice Sotomayor listened to some of her colleagues encourage Ted Olson's argument for overruling key Supreme Court precedents preventing the use of corporate general treasury funds in elections, she intervened to ask a pointed question of Olson: "Are you giving up on your earlier arguments that there are narrower, nonconstitutional grounds for deciding your case"? And Mr. Olson had to say "no." This question by the newest Justice was a pointed reminder that if overruling key precedents is a form of judicial activism, doing so when there clearly are more narrow, statutory grounds for deciding the case is a truly extreme example of judicial activism.
As explained in a blog post by Demos' Democracy Program Director Brenda Wright, the two key precedents the Court appears intent on overturning — Austin v. Michigan Chamber of Commerce and McConnell v. FEC — affirmed that Congress and the states may require corporate political speech to be funded by donations from persons who agree with the corporation's message rather than by corporate general treasury funds that were not accumulated for political purposes. A majority of the current Court, however, appears ready to hold that corporations must enjoy an unfettered right to dominate electoral politics by using their huge corporate general treasury funds in electoral campaigns — regardless of the political views of shareholders.
"The general treasury funds of large for-profit corporations entirely dwarf the resources available for political expenditures from individual citizens, and thus will provide a virtually irresistible target for political actors clawing for advantage in federal elections if Austin and McConnell are overruled," said Wright. "Democracy should not be a wholly owned corporate subsidiary, but today's argument suggests that is where the Roberts Court may be headed."
Jeff Milchen, the co-founder of the American Independent Business Alliance, reacted to Justice Scalia's repeated questions about protecting the rights of small businesses: "For ten years, I've spoken with dozens of business owners every week and often discuss their concerns with government policy. Not once has an owner raised concern about restrictions on their ability to make political contributions. For Justice Scalia to invoke concern for small business owners to advance his agenda of expanding the power of giant corporations simply is laughable."
Demos joined with the American Independent Business Alliance, a non-profit organization helping communities design and implement programs to support independent locally-owned businesses, to file a friend-of-the-court brief arguing that elevating corporations to the status of citizens has no constitutional basis and would harm not only citizens, but America's small businesses.
The Amicus Brief on behalf of American Independent Business Alliance was prepared by attorneys with Demos, a national, non-partisan organization that works to ensure broad political participation and a vibrant democracy; and by Daniel Greenwood, a professor at Hofstra University School of Law who has written extensively about the intersection of corporate law and democracy.
For more information, visit www.demos.org or www.amiba.net.