Citizens United, and the Making of America’s Frankenstein Monster Carol Williams August 17, 2019 Politics Citizens United needs no introduction; it will be forever remembered as the most polarizing Supreme Court decision of the contemporary era—so far. What’s easy to forget is that it began in 2004 when the non-profit organization “Citizens United” filed a complaint with the Federal Election Commission against Michael Moore’s film “Fahrenheit 911.” Six years later, it delivered a cash cow of political influence in the form of paid endorsements, Super-Super PACs, expenditures, ads, dark money, and even worse, a broader legal definition of corporate personhood. Citizens United was incensed that the openly anti-Bush movie, Fahrenheit 911, was allowed to be shown just before the 2004 election. In response, they produced a spin-off called “Celsius 41.11,” choosing those numbers as “the temperature at which the brain deteriorates from heat…”—in this case, from Moore’s left-wing rhetoric. True to their website motto—“Dedicated to restoring our government to Citizens’ Control”—they initially identified themselves as an education and advocacy group. Later, they formed “Citizens United Productions, the documentary film marketing arm,” so they could officially categorize themselves as filmmakers just in time for the next general election. In 2008, they released their next video, a 90-minute film called “Hillary: the Movie.” The FEC charged them with electioneering for violating the ban on political ads shown within 60 days of the general election—under the new 2002 Bipartisan Campaign Reform Act (BCRA). Citizens United was prohibited from showing the film or advertising it on TV. They sued the FEC on the grounds that, as an incorporated non-profit, the ban on political activities or ads that were imposed on corporations by the BCRA, also known as the McCain-Feingold Act, infringed on their 1st Amendment Rights to Free Speech. When Citizens United brought “Hillary: the Movie” to the Supreme Court, the solicitor general laid out all the reasons why it was considered “political advertising.” But when the Court asked if the movie could just as well be a book, an e-book, or a pamphlet, Justice Alito said it was “pretty incredible” to claim that a book advocating, or criticizing, a candidate could be banned. It was a pivotal moment when he asked if the government could declare its constitutional authority to ban a book based on its contents. Distinct Differences Making direct cash contributions to support candidates was never the issue of the case: the question was, can a film or any form of communication created by a corporation, and meant to endorse candidates and influence voters, be aired close to an upcoming election? That was the only question before the Supreme Court, and yet such a narrow scope evidently was not enough for the 5-4 majority of the justices—their final decision overturned sections of not only the BCRA, but also two other previous, related cases. It added an additional ruling on why it found that any corporation has the same rights as a private individual as far as election law was concerned. The majority agreed that “there is no such thing as too much speech,” even if that speech is made by associations of individuals, as corporations are defined. Perhaps the most memorable phrase posed by a lawyer for “Citizens United” was that “money is equivalent to speech and should not be regulated.” Justice John Paul Stephens, in his 90-page dissent, which he read out loud to the Court, pointed out differences between people (who vote), and corporations (which don’t)—one obviously being the limited lifespans of humans versus a legal entity that can live for hundreds of years, and can guarantee its eternal life merely by paying a small annual fee and filing a yearly report. Stephens said corporations also have “the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside profit-making, and no loyalty. Therefore, the courts should permit legislatures to regulate corporate participation in the political process. Legal entities are not the We the People for whom our Constitution was established.” But the most ironic defense of the 1st Amendment Free Speech rights of corporate personhood has been the invocation of the 14th Amendment—the same one that created human personhood for America’s newly freed slaves, giving them the right to vote, equal protection under the law, and due process. It is being used as the basis of a literal “Civil Rights” movement for corporations, described in a book by Adam Winkler, We the Corporations: How Businesses won their Civil Rights. The Most Dangerous Branch The Supreme Court has frequently taken the side of corporations when it reaffirmed their rights as “people” defined in the U.S. Code, but there is one notable exception when it did not: Plessy vs. Ferguson. In 1892, the East Louisiana Railroad wanted to avoid the expense of adding additional cars to accommodate a new state law requiring separate cars for black and white passengers. It even cooperated with staging the arrest of Homer Plessy, the plaintiff who refused to get out of the passenger car reserved for whites. But the Supreme Court defended the right of the State of Louisiana to demand compliance from a private business, sending the message that the cost and inconvenience to a business were secondary to the importance of segregation of the races. The Court sanctioned “Separate but Equal” apartheid, with a 7-1 majority. When it involved the personal politic of prejudice, even the 14th Amendment—hated by the Confederate states since they were forced to ratify it before they could return to Congress—could not convince the Court to protect the rights of either black Americans or corporate America through the Due Process Clause. Not if it would upset the social norms of the South. It took another 60 years, with another Court, to overturn that decision. The effort to abolish corporate personhood and reverse Citizens United with a constitutional amendment has been headed by an organization called “Move to Amend.” That effort seems likely to be weakened by the turmoil of other equally monstrous electioneering violations, namely the Russian interference with the 2016 election and the failure to safeguard against another occurrence in 2020. In the America of 2010, “Corporate Democracy” had its best day, ever. The resulting exponential increase in dollars raised by PACs and lobbying groups could effectively remove the motivation for the individual voter to do the heavy lifting of deciding for themselves how to cast the ballot that belongs, by right of citizenship, to ONLY them. No wonder a report by “People for the American Way Foundation” says that “the Supreme Court today is the most dangerous branch when it comes to political democracy and social progress.” So, after losing the Democratic nomination for President in 2008, and inadvertently assisted by “Citizens United vs. FEC,” Hillary Clinton became the unintentional creator of a weapons factory that manufactured the ammunition used to defeat her in the general election eight years later. The campaign that she almost won makes her a fairly large footnote in history. But the enormous footprint of “Hillary: the Movie” may be in perpetual rerun, and just got a whole lot scarier—because Citizens United: the Case is precisely the “… Frankenstein Monster, which states have created by their corporation laws,” predicted by Justice Louis Brandeis—in 1933. 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