Citizens United: Election fairness or flaw?

Ballot question would take first step in overturning court decision

Money shouldn’t buy a bigger megaphone

A constitutional amendment would reset campaign finance after Citizens United

By David Ropeik

THE HEALTH OF the United States of America relies on a few fundamental beliefs. One is the shared sense that, despite deep disagreements, ultimately we are all in this idea of America together. E pluribus unum. Out of many, one.

Another is that as we pool our resources to accomplish the critical things we can’t accomplish as individuals – protecting the safety of our nation and our streets and our air and food and water, for example – the government we create to achieve those goals works for and is controlled by us, the public, the people.

These beliefs are connected. When the second one weakens, the first one begins to dissolve as well, because if we don’t believe that our shared resources are ultimately under our control and serving the greater common good, we lose faith and trust in the institution of government, the central mechanism that generates our sense of unum.

That second fundamental belief, that government is of and by and for the people, is as shaky as it’s been in modern American history. According to the Pew Research Center, only 18 percent of us trust the federal government to “do what is right” at least most of the time. That’s down from nearly 80 percent from the late 1950s when that survey began. Waning trust in government is true for all ages, races, or political affiliations.

There is little doubt about the principal cause of this erosion: It’s the influence of money on politics. It takes huge amounts of money to get and hold elective office, which makes politicians beholden less to the electorate and far more to the wealthy donors who provide most of the money those politicians need. Our legislators now serve the special interests of the tiny fraction of individuals who give millions to campaigns, more than they do what’s best for you and me. We live under a tyranny of wealth, and that is a corrosive corruption of how we believe our government is supposed to work.

Question 2 on the Massachusetts ballot is an attempt to change all that, and return control of our democracy to the American people. It would create a non-partisan 15-member Citizens Commission, appointed by a cross section of the state’s top elected officials, to assist the Legislature in sending to Congress a 28th amendment to the constitution that would put reasonable controls on campaign spending, including limits on the campaign spending rights of corporations and unions. The Citizens Commission will recommend language for the amendment, press the Legislature to act, and prepare Massachusetts to ratify the amendment after Congress sends it to the states. It will be all volunteer, and operate at no cost to taxpayers.

Why a constitutional amendment (five of which have been enacted since 1961)? First, because Congress has proven steadfastly resistant to any serious campaign finance reform. Small wonder. Such reform would require lawmakers to vote against the interests of the wealthy donors who put them in office and help them stay there. Politicians would be voting against their own interests as well.

Second, because recent rulings by the 5-4 conservative majority on the Supreme Court have removed the few limits on campaign spending that Congress had enacted. Two rulings in particular reveal the court’s utter rejection of the obvious, that money influences politics, giving the wealthy disproportionate influence over government. In 2014, in McCutcheon v Federal Election Commission which removed nearly all limits on how much one individual can donate to campaigns, Justice Antonin Scalia wrote in the majority opinion that, “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption.” i.e. direct bribes. So the Supreme Court has decided that flat out bribes are a final step too far, but anything else money buys is okay.

More notorious was the court’s Citizens United v FEC decision in 2010 granting corporations and unions the right to practically unlimited campaign spending, a ruling that infuriated the American public. More than 87 percent of Americans wanted that ruling overturned. That’s about as bipartisan as we can hope for in these divided days.

In Citizens United the court again danced around the obvious, that huge campaign contributions from big donors give them disproportionate influence over lawmakers, writing that, “Ingratiation and access…is not corruption” and “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies”. General gratitude!? Please!

As Justice John Paul Stevens put it in his Citizens United dissent, “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people.”

The only opposition to Question 2 is that since the Burger court ruled in Buckley v Valeo in 1976 that money is speech, limiting campaign spending violates the First Amendment. But we already limit speech in many ways, whenever such limits serve the common good; hate speech, speech that incites violence, libel and slander, obscenity, speech in the commission of a crime. Spending limits that allow everyone to ‘speak’ (spend) equally, instead of the deepest bank accounts drowning everybody else out, would restore the true democracy our Founding Fathers and the Constitution envisioned. What could be more in the public interest?

We the people want our government back. We want democracy back. We want free speech, but equal speech. Fairness. And we all want this. There is no more unum issue than the nearly universal desire for campaign finance reform and rejection of the idea that corporations should have the same rights as individuals. If there was ever a bipartisan issue that can help heal a country riven by divisions, this is it.

Massachusetts is where the first American revolution began, a fight to be free of tyranny. On November 6th, Bay State voters can help lead a revolution against the tyranny of money, with a Yes vote on Question Two.

David Ropeik, a former longtime reporter for WCVB (Channel 5), is a member of the Yes on 2 Committee. He is a consultant on risk perception, an author, and a former teacher and lecturer at Harvard.


Question 2 is a bad idea

Referendum could remove constitutional rights from many

By Bradley A. Smith and Paul Craney

NEXT WEEK, MASSACHUSETTS citizens will vote on Question 2, which if approved will establish a “Citizens Commission” to “advance the policy … that inalienable Constitutional rights are the rights of individual living human beings and not of artificial entities or aggregations of people.” The commission is ordered to do this by proposing amendments to the United States Constitution, and Massachusetts state officials are then to “take all constitutional and lawful actions to further the proposal and ratification of the recommended constitutional amendment or amendments.”

Bradley A. Smith

The specific target of this proposal is the United States Supreme Court decision in Citizens United v. Federal Election Commission, which held that corporations and other “artificial entities” (such as labor unions, partnerships, and LLCs) have a right to spend organizational resources in support of candidates for public office. We oppose Question 2 because, even if one agrees that there is too much money in politics, this proposed remedy incorrectly diagnoses the problem, and poses a threat to the civil liberties of Massachusetts citizens.

Let’s start with the widely misunderstood Citizens United decision. Citizens United, a public affairs organization like the Sierra Club, the National Rifle Association, and the American Civil Liberties Union (to name a few well-known counterparts), sought to promote and distribute a documentary movie about Hillary Clinton before the 2008 presidential primaries. The law prohibited it from doing so for the sole reason that Citizens United was incorporated. The Supreme Court found this restriction incompatible with the First Amendment. If the First Amendment stands for anything, surely it is the right of citizens’ organizations such as Citizens United and the ACLU to speak out about political candidates and issues.

Paul Craney

A closer issue might be whether that same right extends to for-profit corporations or labor unions. The Supreme Court held that it did—corporations and unions have a right to inform the public about candidates who are inimical to the interests of their members, and the public has a right to hear those views.

But while we make no bones about the fact that we think Citizens United was rightly decided, our argument does not hinge on that point, because Question 2 is poorly designed to address any disagreements with Citizens United, and puts other rights at risk.

First, Question 2 deals with what is largely a phantom threat. Even before Citizens United, 26 states allowed for-profit corporations to make political expenditures in state races, yet those states, such as Oregon and Utah, had no more “corporate dominance” than those such as Massachusetts, which barred such spending. That’s still true.

In 2016, direct spending by for-profit corporations in federal elections was less than $1 million, out of more than $6 billion spent in total. Even including spending by trade associations and by incorporated membership organizations such as Citizens United, Planned Parenthood Action Fund, and NAACP Action Fund. spending by corporations was, under the most liberal counting, about 6 percent of total political spending on federal races.

By comparison, one man—billionaire Tom Steyer—spent more than $90 million in the 2016 campaign by himself, and 11 other individuals also spent more than $20 million each. If our concern is the influence of money on campaigns and officeholders, Question 2 misses the target by focusing on corporations and missing wealthy individuals.

An even bigger problem, though, is the proposal’s fixation on “artificial entities or aggregations of people.”

Contrary to what some believe, Citizens United neither created nor depended on the argument that “corporations are people.” Indeed, the Court was unanimous in recognizing that corporations have constitutional rights—a doctrine that goes back to our nation’s founding. The legal fiction of “corporate personhood” simply recognizes that we don’t lose our rights just because we join together to exercise them. We can exercise our free speech individually, but we’re much more effective if we join together with like-minded people in organizations such as the Sierra Club, NRA, or Planned Parenthood. Our First Amendment rights to protest, speak, and assemble would be hollow if, as soon as we got together with friends (thus forming an “aggregation of people”), we had to surrender those rights.

Moreover, Question 2 does not limit itself to speech rights, but would apply to all rights extended to such “aggregations” or “artificial entities.” Thus, a labor union could find its headquarters searched without a warrant or probable cause since, as an “artificial entity” under law, it would have no Constitutional rights against unreasonable searches. A small employer could be criminally fined for violating some government regulation, without a trial, since, as an “artificial entity,” it would have no Constitutional right to trial. The government could simply seize the assets of a corporation, leaving individual shareholders holding worthless shares of stock, because the corporation, as an “artificial entity,” would have no constitutional right against a government taking of its property. As these examples illustrate, we provide rights to “artificial entities” in order to protect the rights of the individuals who join, create, or own them.

We don’t think that the drafters of Question 2 meant for these types of consequences to occur, but that merely shows how flawed the measure is. If you don’t understand the problem, you won’t get the solution right.

Meet the Author

David Ropeik

Guest Contributor

About David Ropeik

David Ropeik, a former longtime reporter for WCVB (Channel 5), is a consultant on risk perception, an author, and a former teacher and lecturer at Harvard.


About David Ropeik

David Ropeik, a former longtime reporter for WCVB (Channel 5), is a consultant on risk perception, an author, and a former teacher and lecturer at Harvard.


Meet the Author
Meet the Author

Paul D. Craney

Board Member & Spokesman, Massachusetts Fiscal Alliance
Question 2 fails to address the alleged problem even as it threatens the rights of ordinary Massachusetts citizens.

Paul Craney is the spokesman for Masschusetts Fiscal Alliance. Bradley Smith is Chairman of the Institute for Free Speech and a former chair of the Federal Election Commission.