February 5, 2013
Dear members of the Securities and Exchange Commission:
The “Citizens United” decision by the US Supreme Court has had dramatic effects on our national elections. It decided a lawsuit filed by the conservative group Citizens United, promoting a film critical of Hillary Clinton, during the 2008 democratic primary. A lower court blocked the film, saying it violated the “McCain-Feingold Act”, forbidding corporations or unions from funding “electioneering communications” mentioning candidates. “Citizens United” reversed this, saying the First Amendment gives corporations and unions the right to pay for “electioneering communications” as free speech. As a result, corporations, unions and individuals can spend unlimited money for “electioneering communications”. Although the decision required donor disclosure, donors have circumvented this by donating to “social welfare” organizations, designated 501 (C)(4) by the IRS, who release the political advertisement. Supposedly operating for the public good, these organizations are exempt from donor disclosure.
The Supreme Court argued these donations are protected by freedom of speech, which is why even the ACLU supports Citizens United. Justice Steven Kennedy, writing the majority opinion, said if corporations are not allowed advocacy for political candidates, this could deny that right even to news corporations. Further, Kennedy argued the people are protected from corporate and union influence by donor disclosure. He stated that although corporate contributions directly to candidates have been banned since the late 1800s, it was not until 1947 that Congress prohibited independent campaign expenditures by corporations and unions, in the Labor Management Relations Act. President Truman vetoed this, calling it “a dangerous intrusion on free speech”, but his veto was overridden by Congress.
Justice Kennedy further remarked: “The appearance of influence or access…will not cause the electorate to lose faith in our democracy”, and later said that if rules prior to Citizens United had been in effect, the movie Mr. Smith Goes to Washington could have been banned.
Justice John Paul Stevens, writing the dissent, said: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding.” Stevens also wrote: “If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would...appear to afford the same protection to multinational corporations controlled by foreigners…”
Stevens further described the Supreme Court decision in Caperton v. A.T. Massey Coal Co. “In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Virginia high court, spent …[more than 3 million dollars] on behalf of a particular candidate, Brent Benjamin, running for a seat on that court.” Stevens stated that the court…“accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption.”
Elsewhere, Stevens wrote: “But they [(corporations)] are not themselves members of ‘We the People’ by whom and for whom our Constitution was established”; and mentioned a letter in which Thomas Jefferson said “I hope we shall . . . crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country”.
In the July 26, 2012, issue of Forbes Magazine, Howard Gleckman described how “social welfare” organizations through which funds are laundered “... claim they are engaged in issue advocacy and not politics, an assertion that would surprise anyone who watches the ads they fund.”
Writing for Creators Syndicate on October 31, 2012, Jim Hightower said Citizens United has “unleashed … corporate bosses to tell employees how to vote. Prior to that 2010 Court ruling, top executives were barred by federal law from using corporate funds to… push workers to support particular candidates.” Hightower then described Mitt Romney’s campaign appearance with a group of scowling coal miners from Murray Energy, directed by CEO Robert Murray to be there. The New Republic reported that Murray sends letters to employees, telling them how much to donate for politicians he favors, with their jobs on the line.
Having considered arguments both pro and con, I think Citizens United should be overturned, because its bad effects outweigh the intended good.
Thank you for considering my comment.