iOS app Android app More

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors
Stephen Herrington

Stephen Herrington

Posted: March 22, 2011 04:33 PM

Citizens United Will Be Overturned by Unions


Citizens United is not the last word on corporate speech. In the Citizens United vs. FEC decision, the Court of the Land, narrowly controlled by a majority of conservative judges, overruled the most recent lower court judgments on the issue of corporate rights to political speech. It will take time to sort it out with a likely Amendment to the Constitution, but we don't have much time. The ruling itself has set the clock to a few minutes to midnight for our democracy.

The Bipartisan Campaign Reform Act of 2002 (BCRA) bans candidate advocacy, for or against, by a corporate voice 30 days prior to an election that might reach an audience of 50,000 or more. Modest enough a rule. Hillary the Movie, the subject on which the Citizens United complaint was formulated, was definitely candidate advocacy. That fact was never in question in the SCOTUS.

The plaintiff premise in the lower court was that Hillary the Movie was exempt from BRCA on technicalities of how it was distributed. It was argued in lower courts that it might not reach the threshold banned by BRCA, of being distributed in a way that it would reach at least 50,000 viewers. The key to the lower court judgment against it was that even though the passive distribution on pay per view of it might not reach 50,000, the advertising of it on pay per view might push viewership higher, to some unknowable level. So the original ruling against allowing that particular method of distribution was based in the recognition of the subterfuge of the distribution plan that was meant to circumvent BRCA. The lower court ruling based in BRCA law remains intact.

So the SCOTUS heard the case not because of merit in existing law, but on merit of constitutionality of the section of BRCA that bans candidate advocacy by corporations and unions exclusively. The core issue was the likelihood of corporate money distorting the political process. The "concern" of a slim majority of Justices was the "chilling effect on free speech" of finding the BRCA section banning corporate electioneering Constitutional.

Do you feel that your free speech is chilled by limiting a corporation's ability to distort the political process with commercials for a candidate? You might, if you see unlimited corporate spending on political advocacy advertising as a political tool to your liking. Political Action Committees could already take monies in unlimited amounts for political advocacy purposes. The only difference is that they were required to declare a purpose for the collection and sources, thus divulging the political agenda of corporate donations. Is anonymity of speech guaranteed by the Constitution? Anonymity is not something Jefferson or Madison felt necessary.

So with the broadest disregard for intent of law and the very design intent of the Constitution, to prevent concentration of power in the hands of an unelected minority, the SCOTUS, as composed, ruled that corporations and unions have the same rights to speech as do individuals. Actually corporate rights are now superior. Anonymity is not an option for individual contributions and strict limits still apply. How long can even those restrictions last with the floodgates of immunity opened for corporations and unions?

The whole SCOTUS conservative cohort argument is based on the assumption that speech should not be limited by the speaker's ability to distort the political process with money as a disqualification of free speech. Money is free speech. The same ruling applies to foreign corporations. It has cast the American political process adrift in a whirlpool of corporate money's ability to market opinion, something they do very, very, well.

The case was allowed before the Court on the basis of an existing conflict in lower court rulings on corporate political speech. The Supreme Court did not address important considerations, the design and intent of the Constitution to limit political power. It instead relied on a mechanistic dissection of lower court rulings to justify a politically motivated decision. It stands to reason that it will be challenged, but by whom?

Our current crop of politicians are no longer even a shadow of the Founding Fathers. Electioneering is their bread and butter instead of democratic/republican leadership. President Obama, a credible Constitutional scholar, took exception to the Citizens ruling but has done nothing with it but act as if it were a fact of law. It seems he now curries favor with the very power that succeeded with Citizens, at least in a pragmatic sense. A challenge to the Citizens United ruling will not come from any source on or near Capitol Hill. It will come from unions.

Unions have been under flagrant frontal assault by the very powers that prosecuted Citizens United. In a putsch for political dominance, corporations and conservative strategists have revealed a plan to destroy the life blood of unions, dues. Unions, as the only natural enemy of autocracy other than the now long dead Framers, bear the cause and burden of continuing the fight that separated and distanced this land from the rule of monarchy.

As unions now have the same prerogatives as corporations under Citizens United to advocate whatever damned thing they want, they should use it with every measure of conviction that the Framers had. "Our lives, our fortunes and our sacred honor" must be devoted to this cause. Otherwise the America designed to benefit the people in equity to their contribution heralded or not, will fall.

Part of that prerogative must be to demand the equal enforcement of law decided by Citizens United. If the speech of corporations can't be "chilled" by government, as the court said, "prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions", then government cannot "chill" union speech. Union busting by states, like Wisconsin, would not only "chill" but outright muzzle, by depriving unions of income by act of government in dissolution of their established rights to enforce membership and collection of dues, those rights predicated on the value that collective bargaining provides as a product of unionization. Union busting acts of government are equivalent in every consequent respect to an outright ban on political speech by government.

If unions are subject to sanction of their speech by government, even in light of the argument that they might distort the political process, then so too are corporations. So in order to deliver their long sought coup d'gras against labor unions, corporation conservatives must surrender their rights countenanced by the Citizens United ruling. If governments can ban unions then they can ban corporations.

The route to overturning Citizens United is through forcing corporations and conservative ideologues to find another means by which to destroy democracy. Or, in asserting their rights, they equally assert the rights of unions to oppose their goals.