Constitution Check: Where does the campaign against Citizens United go next?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: the efforts to undo the Supreme Court’s most significant campaign finance decision, and where those efforts stand on its second anniversary.

The statements at issue:

“Do we need a constitutional amendment to overturn the Supreme Court’s ruling in Citizens United v. FEC?  Should opponents of the ruling pressure the Court to reverse course…? The answer is yes….Reversing Citizens United will not be easy, as anyone who has been working in opposition to the ruling for the two years since it was decided already knows.”

–Douglas Kendall, president of the Constitutional Accountability Center, in a column on the Huffington Post website, January 20.

“Now unions are turning to shareholder proposals to limit political speech. Since the Supreme Court’s 2010 Citizens United decision,…’disclosure’ has become the watchword for Democrats hoping to muzzle political speech by corporations. The latest gambit is to intimidate companies via the shareholder proxy process.”

The Wall Street Journal, in an editorial, “Shutting Up Business,” December 29.

We checked the Constitution, and…

Because the Constitution makes it so difficult to add an amendment to it, and because there is such a deep disagreement about the role that money is to play in American politics, the chances that an anti-Citizens United amendment will gain enough support to pass remain slim, at best. And getting the Supreme Court to back down is an even less promising effort, especially in the short term. But the decision’s supporters are beginning to worry that the discontent over it may be starting to take root in the arena of investor democracy.

What these two points illustrate well is that there might be more than one way to bring about “constitutional” change, if by “constitutional” one means something broader than altering the text of the basic document itself. Talk of changing the basic ordering of America’s institutions can also raise the prospect of change, perhaps more than an effort to alter the Constitution’s words directly.

Mr. Kendall and those who agree with him showed–in the fervent commentary that rose up as the second anniversary of Citizens United approached–that they are not anywhere near ready to give up. Twelve of the followers of that cause, in fact, pressed the issue in a symbolic protest on the front sidewalk outside the court last Friday, and were arrested.   There was little chance that the justices paid much, if any, attention.

But The Wall Street Journal may have been justified in expressing its concern that another tactic may work, outside the realm of Constitution-amending and inside shareholder meetings. As its editorial noted, federal rules for shareholders allow anyone owning more than $2,000 in stock in a company to float a proposal to amend corporate charters or by-laws.

According to The Journal, the so-called “proxy rules” were used last year for “a record number of shareholder proposals on political spending,” and more than 92 percent of the resolutions were sponsored by labor union pension funds or by what it called “social investing funds.” The aim of such proposals is to require management to disclose what it spends on lobbying and in political action. Two very large union pension funds in California, the editorial said, have amended their investment policies to place their money in corporations that will agree to say publicly what they do with company money in the political world.

So far, according to The Journal, the proxy contests over this issue are being turned aside by shareholder majorities, but the vote itself is giving a new visibility to the challenge and thus could enhance its prospects if more critics of Citizens United turn their portfolios into a medium of social pressure on management. Already, according to The Journal, scores of major companies have either withdrawn from campaign finance altogether, or are disclosing those activities on their websites.

“Disclosure,” the editorial summed up, “is a worthy public value, but it doesn’t trump the right to free political speech and assembly.”

Picking up on The Journal’s comments, the U.S. Chamber of Commerce website warned that “the real impact of these [shareholder] resolutions would be to scare business away from participating in the political process.”

Of course, corporations will retain the First Amendment right recognized by the court to spend from their corporate treasures on candidates and on ballot measures. But the First Amendment is not a shield against investor pressure on management.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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