American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill. Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United, in essence telling the justices that they didn’t understand the first thing about politics. Justices Ruth Bader Ginsburg and Stephen Breyer, dissenters in Citizens United, have publicly stated that American Tradition may offer an opening to limit or even overturn the malign precedent.
But the problem didn’t start with Citizens United and can’t be fixed by a corporate-personhood amendment. The threat to American self-government runs far deeper. It started nearly 40 years ago, when the Court first became involved in campaign-finance cases. Four decades of decisions have allowed the rich and powerful to transform free speech—our most important tool of bottom-up self-government—into a means of top-down social control. To understand what’s wrong with free-speech doctrine in the 21st century, consider a question put from the bench by Chief Justice John Roberts during oral argument in a case called Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
In 1998, the voters of Arizona created a voluntary public-financing system, in which a candidate who agreed not to solicit or spend private funds would receive state funding. Public financing is a great idea; it frees candidates from the need to truckle to wealthy donors. Under current constitutional doctrine, though, it can’t be made mandatory. Candidates who refuse to take part in the system can often raise much more (from their own funds or from contributions) than the amount allotted to their challengers by the state. To address this concern, the act provided that if a privately financed candidate spent more than a publicly financed candidate’s allotted funding, the publicly financed candidate would receive additional money to allow a competitive election. The law didn’t match the private campaign dollar for dollar, but it did give the publicly financed candidate a second infusion of cash.
Full Article: “Corporate Personhood” Is Not the Problem.