Op-Ed: Citizens United and the 2012 Election: Bad News and Good News

By JEFFREY CLEMENTS

Make no mistake, the impact of the Supreme Court’s fiasco in Citizens United v. FEC on the elections and our government was even worse than predicted. That’s the bad news. The good news is that the forces of reform, led by the growing movement for a 28th Amendment to the US Constitution, also made a forceful showing in November.

First, the bad news. There is a lot we will never know due to absence of adequate disclosure rules (the proposed DISCLOSE law went to the Senate to die in 2011). What we do know: Election spending came to at least six billion dollars, more than ever, anywhere in the history of humanity, to determine who won, who lost, and what the candidates talked about and what they did not talk about.

Here’s another number: 0.5%. One-half of one percent of people in America made up 80% of the political spending. A mere 149 donors made up 75% of the SuperPAC money raised from individuals (estimated to be a billion dollars). In total, only 2800 donors wrote huge checks to make up 98% of the SuperPAC money from individuals.

Is it any wonder that sober, serious people such as Bill Moyers, or Jim Leach, an Iowa Republican who served in Congress for thirty years, are now using words terms as “oligarchy” and “plutocracy” to describe the post-Citizens United system?

The proper metaphor for money in politics is not “speech” but “power.” That is why global corporations exploited Citizens United without reservation. Monsanto and other corporate giants spent $46 million to smother a GMO-labeling initiative in California. Chevron contributed $2.5 million into Speaker Boehner’s SuperPAC to hold a majority for the climate deniers and obstructionists. Saudi interests used the American Petroleum Institute and huge stakes in international corporations such as News Corporation (number 2 shareholder: Kingdom Holding Company of Saudi Arabia) to sway various election contests.

No campaign was too obscure. Chevron used a deceptive front group (“Moving Forward”) to funnel $1.2 million of the corporate oil giant’s funds into local city council races in Richmond, CA. Over a million dollars in a city council race in a community of 100,000: What’s that about? Chevron runs a refinery in Richmond that has long plagued the community and sent thousands to area hospitals after an explosion last August. Chevron also has a series of tax disputes and regulatory problems. Corporate control of the City Council may come in handy.

Yet there’s hope, a verb that environmentalist and writer David Orr defines as “a verb with its sleeves rolled up.” Most hopeful of all: The campaign for a 28th amendment to the US Constitution to reverse Citizens United and restore the Constitution and elections to the American people. While we need 2/3 of Congress and ¾ of the States to make the 28th Amendment part of the Constitution, the velocity of this campaign is striking.

On election day in Montana, 75% of the voters endorsed a ballot initiative calling for the 28th Amendment. The initiative, I-166, stated the policy of Montana clearly enough: (1) corporations do not have Constitutional rights; (2) unlimited spending in elections corrupts elections and government and contradicts the political equality of all Americans; and (3) the voters of Montana instruct their elected representatives to work for passage and ratification of the 28th Amendment.

Montana was joined by Colorado, where voters passed a similar call for the 28th Amendment by a similarly lopsided margin. That makes eleven states that now have passed resolutions calling on Congress to send a Constitutional amendment overturning Citizens United to the states for ratification. More than 120 cities and towns had the Constitutional amendment question on their ballots on November 6; it passed by huge margins in every single one. Seventy-three U.S. House members elected on November 6 have sponsored 28th Amendment bills in Congress, as have twenty-five Senators returning to Washington.

Thousands of business leaders (including Trillium CEO Matt Patsky) have joined this effort. Increasing numbers of religious leaders are joining the fight to overturn Citizens United and end gross political inequality. As Rev. Jim Wallis has said, “our national soul is at stake.”

The American consensus that is necessary for a Constitutional amendment to succeed is emerging. That doesn’t mean it will be easy. Nor does it mean that the Amendment solution is the only thing to do. As always when the chips are down in America, we have to do more at once than we ever thought possible. We need many reforms, including disclosure, shareholder approval, campaign finance reform, corporate governance and law reform, among so much else. But we can’t get there without fundamentally challenging the forces that will block any meaningful and lasting change.

Millions of Americans are joining this fight because the Constitutional amendment movement goes to the root of the problem. It addresses the fundamental question: whether the people have the power necessary for self-government or not. It’s that simple. The next two years will see legal and political leaders coalesce around Amendment language that should fulfill two essential criteria that Citizens United so badly mangled:

First, we the people have the right and power to protect free, fair elections, in which Americans participate as equals, by enacting equal contribution and spending rules.

Second, we the people have the right and power to define the legal and economic rules to ensure that corporate entities serve the people and society, not the other way around. Corporations do not have Constitutional rights, as opposed to the rights and duties defined in democratically enacted corporate laws.

With those two longstanding principles of our American republic re-established, we will not only survive but will prosper in the difficult transition from an extractive, consumptive, dead-end economy to the emerging sustainable, just, and diversified economy. Best of all: we will have done our part to once again ensure that government of, for and by the people shall not have perished from the Earth.

Jeffrey Clements, an attorney and investor, is the author of Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It and the co-founder and president of Free Speech for People, a nationwide, non-partisan organization working to overturn Citizens United and for corporate law reform.