CHANGING BASIC SOCIAL STRUCTURE?
CITIZENS UNITED vs. FED ELEC COM
What is “Citizens United”?
2 Things:
1. A Political Action Committee
2. A Supreme Court Case
1

• Founded by Floyd Brown
(DC Political Consultant)
• Funded by Koch Bros
(Own 2 nd Largest U.S. Private Co.)
• Goal: Promote Limited Govt;
Conservative Causes; Strong
Families; Private Enterprise
2

• Original Aim of Citizens United:
Produce Anti-Hilary Clinton Video
• Case Presented in 2008
• Goal: Change Law Which Limited
Corporate & Union Paid Political
Ads
3

• Citizens United Wanted to Broadcast Anti-
Hilary Clinton Ads in 2008 Election Campaign
• Included a Video Criticizing Hilary Clinton
• Ads Violated 2002 “Bipartisan Campaign
Reform Act” (McCain-Feingold Act) …
• Which Barred Corporations & Unions From
Paying for Media on Candidates Just Before
Elections
4

• Long-Term Tradition Had Prevented Such
Corporate Spending on Campaign Publicity
• Case Had Gone through Lower Courts
• Went to Supreme Court in 2008
• Supreme Court Overturned a Century Old
Precedent Prohibiting Such Expenditures
• Result: Greatly Increases the Amount
Corporations Can Spend on Elections
5

• Federal Election Commission (FEC) Was
Defendant in Case
• FEC Is Responsible for Managing Elections…
• Citizens United Sought to Bar the FEC from
Preventing Such Corp. Expenditures
• So Citizens United Sued the FEC …
• Case Made Its Way Through Lower Courts
• Appeal went to U.S. Supreme Court in 2008
6

• Court Declared Government Restriction on
Corporations & Union Campaign Expenditures
Unconstitutional
• Stated Anti-Clinton Broadcast Should Have
Been Allowed
• Decision Overturned Century-Old Precedent
Allowing Govt to Regulate Such Spending
• Case Has Greatly Affected The Way Corp. &
Unions Can Spend On Elections
7

• Very Close Decision (5-4)
• Voting in Majority:
• Kennedy, Roberts, Alito, Scalia, Thomas
– (The Traditional Conservatives)
• Voting in Minority:
• Stevens, Ginsburg, Breyer, Sotomayor
– (The Traditional Liberals)
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1. Barring Independent Political Spending
Squelches Free Speech – Violates 1 st
Amendment
2. 1 st Amendment Protects Speech – Regardless of Speaker (Organizations as Well as Persons)
3. Gov’t Has Right to Prevent Corruption – but
Cannot Determine Whether Large Campaign
Expenses Constitute Corruption
4. Public Has Right to Hear All Information –
Spending Limits Prevent This
9

1. 1 st Amendment Protects Only Individual
Speech – Not Speech of Associations
2. Government May Prevent Corruption –
Campaign Spending Which Influences
Legislators Can Produce Corruption
3. Government May Prevent the Appearance of
Corruption – Such as Placing Limits on
Corporate & Union Spending
4. Public Has Right to Hear All Information – But
Corporate Messages Overwhelm All Others
10

PRO: Advances Free Speech – Gives All Corp.
Equal Power to Media (Which Always Had It)
NEUTRAL: Simply Increases Volume of Political
Ads – Wouldn’t Affect Public Discussion Much
ANTI: “Gives the Special Interests & Their
Lobbyists Even More Power in Washington…”
[vs.] “Average Americans Who Make Small
Contributions to … Candidates” (Pres. Obama)
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EXTREME INCREASE IN POLITICAL SPENDING
(Center for Responsive Politics) 12

SUMMARY: CITIZENS UNITED IMPACT
• 2012 Election – 1 st Since Citizens’ United
• More Than 2x Political Spending As Any
Previous Election
• Research Indicates Increase Nearly All the
Type Citizens United Allows
• Does It Determine Election Winners? Some
Suggest It Does Not (I.e., People Still Vote the
Way They Think)
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(“RECLAIM DEMOCRACY”)
1 . U.S. Founders of U.S. Restricted Corporations –
Didn’t Intend to Give Constitutional Protection
2. Gov’t Has Authority to Prevent Corruption & Its
Appearance – This Is Lacking Here
3. Majority Claims Spending Limits Prevent Full
Information – Not True – We Get A Lot – This Approach
Allows for a Monopoly of Information
4. Court Violated Stare Decisis – Overturned Its Own
Decisions to Rule Here – Could Have Ruled Narrower
(E.g., McCain-Feingold Did Not Apply to Video) – Went
Beyond What Plaintiffs Asked
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OTHER REASONS TO AVOID UNLIMITED
SPENDING BY CORPORATIONS & UNIONS
1. Prevents Meritocracy of Ideas (E.g., Ideas Win Not by
Merit but by Level of Spending!)
2. Has Influence Beyond the Ads – Politicians
Dependent Upon Wealthy Donors’ Support
3. Unlimited Political Spending Focuses on Attack Ads –
Creates Unthinking Partisanship – Not Thoughtful
Discussion
4. Gives Large Corp Too Much Advantage Over Small
Businesses
(Amer. Indep. Business Assn.)
5. Need to Protect the Rights of Individuals & Protect
Integrity of Elections
(Most from Reclaim Democracy)
15

• Citizens United Not an Isolated Problem
• Long-Term Increase in Corporate Political
Power – at Expense of Individuals
• Corporations Use Power - Receive Protections:
• Obtain Influence in Govt Process
• “Buy” Influence of Politicians
• Gain Right to Hide Their Actions, Avoid Govt
Regulation (EX: Monsanto  Prevent
Disclosure of Genetic Manipulation of Food)
(Reclaim Democracy)
16

CITIZENS UNITED PART OF BIGGER ISSUE
• Largest Corp Taking Over Power from Citizens
• Corp Personhood = Protection to Individuals
• Corporations Are Persons? Or…
• Non-Persons Have Free Speech Rights?
• Citizens United Latest in a Long Line of
Decisions Granting Constitutional Rights to
Corporations
17

• Under Current Legal Conditions, Only Way to
Strip Corp of Constitutional Rights is Through a Constitutional Amendment
• EX: Other Recent S. Ct. Decision on Campaign
Finance:
• Same 5-4 Decision as Citizens United
[Law: Ariz Citizens Clean Election Act (passed 1998)
Cases: Ariz Free Enterprise Assn v. Bennet; McComish v. Bennet]
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GROUPS SEEKING TO REVOKE MOVE
TO EXTREME CORPORATE POWER
• Demos
• Common Cause
• Free Speech for People
• Program on Corporations Law and Democracy
• Public Citizen (Organization Established to
Maintain Individual vs. Corporate Rights)
19

UPDATE: COMPANY DOE CASE (Pt. 1)
• Facts of Case:
• Child Injured by a Product
• Rept Submitted to Consumer Product Safety
Commission (Estab. Public Citizen, & Others)
• Co. Making Product Sued to Suppress Report
• Co. Asked That Co. Identity Be Hidden &
Hearing Secret
[Public Citizen Email, 11/9/13, Scott Michelman, Pub. Cit. Atty]
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UPDATE: COMPANY DOE CASE (Pt. 2)
• Request to Suppress Identity Granted by Judge
• Case Lasted 9 Months
• Final Decision Made Public 3 Months Later
• Ruling Published – With Items Blocked Out:
Name of Co – Product – Witnesses – Facts
• Q: How Can People Protect Themselves, Their
Children – If They Cannot Find Out What
Products Prove Unsafe? Who Makes Them?
What Evidence Exists? Etc.?
21

• Public’s Right of Access to Court Proceedings
Goes Back to Earliest Origins of U.S. Courts
• Exceptions Made Only to Protect Most
Sensitive Cases (Children; Persons at Risk of
Retaliation)
• These Cases Extend Personal Protect Rights to
Non-Human Corporate Entities – Who Wish to
Avoid Responsibility for Their Actions
22

• Recent News Update (11/15/13)
• Corporations Claim Rights of Individual
Citizens (Free Speech; Confidentiality)
• BUT: Corporations Now Claim Right to Take
Away Rights of Individual Citizens
• EX: 2 Reports: Texas Woman; Utah Couple
• Customers Fined $3,500 for Writing Negative
Review of Company Not Filling Order
23

• Company Inserted Statement into On-Line
Order Form …
• “Non-Disparagement Clause”:
• Customer “Promises Never to Say Anything
Negative Re the Company”
• Consequence? Corporations Now Have
Individual Rights  Individuals Do Not!
• Refs: www.dailymail.co.uk
... couple charged; www.hutv.com.news
; www.offthegridnews.com
; www.businessinsiders.com
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Questions?
Comments?
What Is Likely Outcome If Pattern Continues?
Is This Appropriate?
Is This Dangerous?
What Is the Likelihood of Change?
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