With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.

Conservatives and progressives may argue this morning about whether President Obama should have criticized the Court and about the severity of Justice Alito’s breach of protocol, but Justice Alito faces a bigger problem:  Obama’s comment is true.

In fact, Obama’s carefully-phrased comment to the justices highlights two critical aspects of the majority’s decision in Citizens United v. FEC, both of which constitute dangerous and revolutionary shifts in long-settled law:

1. The Court ruled that the First Amendment makes no distinction among speakers—that the identity of a speaker makes no difference for purposes of government regulation of speech.  As Justice Stevens pointed out in his dissenting opinion, this logic leads to some remarkable conclusions: “Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”  Stevens also clearly explained that the majority’s logic “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”  This is truly an unprecedented reading of the Bill of the Rights that could have consequences that reach even beyond campaign finance law.  By eliminating any distinction among speakers, which, as Obama noted, has been recognized for at least a century, the Court hinted that any regulation that distinguishes between corporations and individuals may be problematic – raising the question of what other rights currently reserved for citizens the Court might soon extend to corporations.  As Stevens noted in his dissent, under the majority’s logic, “it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”
2. To make matters worse, the Court dramatically redefined the meaning and standard of “corruption,” ruling that only the strictest and most direct forms of corruption – e.g. bribery – are prohibited, and not, as was previously the standard, any “appearance of undue influence.”  This critical component of last week’s decision redefined the boundaries of what constitutes corruption and made influence by special interests significantly more difficult to prove.  More important, the ruling, as Obama precisely indicated and as Senate Judiciary Chairman Patrick Leahy (D-VT) fervently reiterated this morning on the Senate floor, appears to sweep away vital barriers that were keeping foreign special interests, such as Toyota, from manipulating American elections.  If all speakers are treated equally under the First Amendment, and the only corruption Congress can prohibit is direct vote-trading for money, then there is no reason why foreign companies with a U.S.-presence couldn’t spend endless amounts of money to influence U.S. elections.  Under the logic of the Supreme Court’s decision, just as Exxon can now spend millions to oppose a candidate who, for example, supports the climate bill, so, too, could Toyota or other foreign companies.

If Justice Alito wanted to disclaim any of this, or if he thought that the majority’s opinion was not as far-reaching as Justice Stevens’ powerful dissenting opinion demonstrated, he should have written a concurring opinion.  He should have explained how the logic of the Court’s opinion doesn’t change course on over a century of campaign finance law that seeks to limit corporate influence in elections and showed us that the Court’s formalistic approach to the First Amendment and corporations won’t lead to foreign corporate spending in U.S. elections.  But muttering at the State of the Union clarifies nothing.

The stakes here are extraordinarily high.  As Obama alluded in his comment, the last century has witnessed a historic trend toward greater enfranchisement of American citizens, accompanied by a significant increase in restrictions on corporate spending to influence elections.  The Court’s decision in Citizens United unequivocally halts and reverses that trend, pulling the rug out from under decades of progress toward achieving the democracy envisioned by the Founders, and improved upon by successive generations of Americans that amended the Constitution to guarantee the right to vote to all citizens, irrespective of race, sex, age, and class.  If Justice Alito believes that the damage done to our electoral system by the majority’s opinion in Citizens United can be contained, we hope that he will explain it in a judicial opinion in the next case that seeks to chip away further at what remains of our Nation’s campaign finance laws.

Last Thursday, in Citizens United v. FEC, the Supreme Court announced, for the first time in history, that corporations have the same rights as individuals to spend money on the electoral process, and corporate personhood was at the heart of the Court’s opinion. In Justice Kennedy’s view, corporations are simply “associations of citizens,” and therefore deserve the same constitution rights as living persons. The Court’s opinion interred a century of campaign finance law built on the idea that corporate participation in the electoral process must be strictly regulated for the sake of our democracy.

The Court’s conservative majority – including the Justices who repeatedly profess adherence to the Constitution’s original meaning – turned their back on our Constitution’s text and history, ignoring that the Constitution was written for and by “We the People,” and that from the framing on, it has been blackletter law that corporations are artificial creatures of the State, subject to government oversight to ensure that they do not abuse the special privileges granted to them to succeed in business. As Justice Stevens’ brilliant dissent put it, “the Framers took it as given that corporations could be comprehensively regulated in the public welfare.” Rather than own up to constitutional first principles, both Kennedy’s majority opinion and Justice Scalia’s concurrence blithely dismissed them. Both Kennedy and Scalia repeatedly relied on constitutional protection for the media in arguing that the Constitution gives the same rights to corporations and the people, ignoring that the press were the only private business given explicit constitutional protection in the Constitution. Justice Scalia even goes so far as to suggest that the framers would actually have liked modern corporations if they only they had the chance to see them in action. Those who take constitutional text and history seriously should be appalled that this is what passes for legitimate argument by the leading originalist on the Court.

In fact, Michael Greve’s initial take is more in line with Justice Stevens’ dissent than either Justice Kennedy’s majority opinion or Justice Scalia’s concurring opinion. It was Stevens’ dissent, not the 5-justice conservative majority, that adopted Greve’s “common sense” position: “corporations do not enjoy the same rights as individuals.” Kennedy’s majority opinion, on the other hand, rejected this “sensible” notion, treating corporations as nothing more than “associations of citizens” deserving equal rights as living persons.

To be sure, Greve, much like Kennedy and Scalia, tries to get out from under the Constitution’s text and history. Taking pot shots at CAC’s forthcoming report, “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution, Greve derides us for focusing on what the framing-era generation had to say about the role of corporations under the Constitution. This, Greve says, is “pseudo-originalism.” Perhaps I’m mistaken, but I had thought that understanding the framers’ Constitution was a big part of what originalism is all about.

Then, Greve makes the point that modern corporations look nothing like the ones that existed at the time of the framing. This is, of course, true but does not give Greve any reasons for ignoring the history we lay out in A Capitalist Joker, which begins at the Founding and covers virtually every era in American history. Corporations have changed since the Founding – beginning in the 1830s, states enacted general incorporation laws that made it easier to create corporations because having legislatures vote to approve individual charters led to rampant corruption – but the idea that government has a special role in policing corporations has not. That framing-era bedrock principle is reflected in a century of Supreme Court precedent consistently holding that corporations are not protected by the Fifth Amendment Self-Incrimination Clause; it is reflected in a host of Supreme Court precedents recognizing that governments have broader search-and-seizure authority over corporations; and, until last Thursday’s ruling in Citizens United, it was reflected in a century of campaign finance law and Supreme Court precedent recognizing that corporations did not have the same rights to spend money on elections as living breathing persons.

We shouldn’t forget how we got here. As explained in more detail in A Capitalist Joker, Citizens United is a culmination of a forty-year struggle that began in earnest in 1971 when Lewis Powell advised the Chamber of Commerce that “political power is necessary” for corporations and “must be assiduously cultivated” and urged corporations to look to the courts for relief. Citizens United also represents a return to the idea of equal constitutional rights for corporations that was embraced briefly by the Supreme Court in the Lochner-era, a era universally viewed to be among the worst in Supreme Court history. Far from heeding our constitutional traditions, the five conservative Justices on the Roberts Court saw the chance to write the idea of equal constitutional rights for corporations back into the Constitution, and took it, casting aside both first principles and precedent to get there.

Over at Salon, Glenn Greenwald has been urging calm among progressives who are appalled and angry at the Supreme Court’s ruling last week in Citizens United v. FEC, and accusing progressive critics of the ruling of over-simplifying the law and under-respecting the First Amendment. But his own analysis is surprisingly shallow and his burden is pretty high when he is essentially saying that Justice Stevens’ brilliant and comprehensive 90 page dissent, joined in full by Justices Ginsburg, Breyer, and Sotomayor, gets the Constitution wrong, and the five conservatives on the Roberts Court got this one right.  He doesn’t come close to making that argument stick.

Greenwald, of course, is widely and appropriately respected among progressives for his aggressive defense of constitutional principles and their abuse in the execution of this country’s “War on Terror.”   Indeed, it is precisely because Greenwald has assumed a role as a leading authority on the Constitution within the progressive community that his recent defense of the Court’s decision in Citizens United is alarming, and warrants response.

Greenwald’s main beef with progressive critics of the ruling is that we are fighting issues such as “money is speech” and “corporate personhood,” which are not really front and center in the case.  To Greenwald – as to the majority – Citizens United is simply about the First Amendment and nothing else.  Greenwald writes:

I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.  Does anyone doubt that the facts that gave rise to this case — namely, the government’s banning the release of a critical film about Hillary Clinton by Citizens United — is exactly what the First Amendment was designed to avoid?  And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?

Whether one calls this an “absolutist” view or just an “overly simplistic” one is, perhaps, a matter of semantics, but Greenwald is missing the point.  Yes, individuals should have the right to form and express political views, whether as a voting bloc, an alliance of protestors, or a legally-recognized entity that collects individual donations to advance a political message.  If the Court had written a narrow opinion vindicating the speech of such groups, it is likely that we would have seen a unanimous opinion.  After all, at oral argument, Justice Stevens himself argued for precisely this result.

And while the majority elides the issue of corporate personhood and the question of whether money is speech, these issues form a big part of Justice Stevens’ analysis of why Congress can restrict the ability of corporations to spend unlimited amounts of money to get their way in American electoral politics.  Justice Stevens explains patiently both how corporations differ from human beings and how corporate resources are not “an indication of popular support for the corporation’s political ideas.”  A ban on corporate expenditures is constitutional, Stevens argues, because it does not “prevent anyone from speaking in his or her own voice.”  (Dissent at 77.)  He concludes that “corporate spending is ‘furthest from the core of political expression,’” (dissent at 77,) because corporations have no autonomy or dignitary interests in freedom of expression; in fact, corporations, by law, must concern themselves only with maximizing profit.  Therefore, prohibitions on such spending “impose only a limited burden on First Amendment freedoms.” (Dissent at 79.)  In other words, because corporations are not people, and because money is not really speech, the justification needed for a ban on corporate spending on elections is not the same as the justification the government needs for banning political speech by individuals.

Greenwald himself recognizes that “corporations are creatures of the state and should not enjoy the same rights as individuals.”  But his bottom-line position — that corporate expenditures are political speech and that there is no compelling governmental interest sufficient to justify restriction on political speech — makes this concession meaningless.  Greenwald supports this position with the same simplistic textual argument relied upon by the majority: the First Amendment is a limit on Congress — “Congress shall make no law” — and it doesn’t distinguish among who is speaking.  But, it has never been the law that all forms of speech (even political speech), and all types of speakers, are treated equal.   Stevens response is devastating:  “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 lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”

Greenwald also criticizes as “intellectually confused” the argument that the conservatives on the Roberts Court were too cavalier in tossing out prior precedents, most notable its ruling in Michigan Chamber of Commerce v. Austin.  Greenwald’s right, of course, that no one should be an absolutist about adhering to prior rulings – as he puts it, “if a settled proposition of law is sufficiently repugnant to the Constitution, then the Court is not only permitted, but required, to uproot it.” But everyone, including the dissenting justices, recognizes that.   Justice Stevens’ main argument – powerfully laid out on pages 42-55 of his dissent – is that the majority is disingenuous in denying how sharply its ruling departs from constitutionally sound case law, and how much the Court’s ruling in Citizens United changes the law in a case in which there were numerous narrower grounds for a decision available to the Court.  Here’s Justice Stevens summation:

Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 [of the McCain-Feingold campaign finance act] is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power.

Given the power of the merits arguments marshaled by Justice Stevens in support of upholding the ban on corporate election spending, Greenwald’s implication that the law here is constitutionally “repugnant” – and comparable to the Court’s errors in Plessy and Bowers — is offensive.  But the real problem again is that Greenwald takes on the strawman of whether cases should ever be overruled and  fails entirely to take on Justice Stevens’ actual arguments of why adhering to prior case law was justified here.

Finally, relying on an op-ed by Eliot Spitzer, Greenwald calls special restrictions on corporate electioneering “irrational, discriminatory and ineffective” because they exempt media corporations included the Fox News, the corporation progressives love to hate.  This is the flip side of the argument that dominates the majority opinion of Justice Kennedy and the concurring opinions by Chief Justice Roberts and Justice Scalia, who argue that restrictions on corporate electioneering cannot be permitted because this would inevitably mean Congress could prohibit media companies like the New York Times from endorsing candidates.  Both Greenwald’s argument and its flip side have superficial appeal, but again, Stevens takes the argument head on and hits it out of the park.  Stevens explains precisely why “the text, history, and structure of the First Amendment,” which prohibits abridging freedom of “the press” as well as freedom of speech, justifies different treatment of media corporations.   This should be apparent from reading the Constitution — the press is the only private business that is given explicit constitutional protection.  As Stevens notes on page 84 of his dissent, “our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, and about how to define what constitutes the press.  But that is not the case before us.”   Precisely the same rejoinder could be made to Greenwald’s argument.

Greenwald is, of course, entitled to side with the five justice conservative majority in Citizens United and against the Court’s four moderate to liberal justices.  He’s free to join the likes of Jonathan Turley and Eliot Spitzer in sanctimoniously telling progressives that they will “stand with the First Amendment.”  But if Greenwald, Turley, Spitzer and their colleagues want to convince progressives that they are wrong to be outraged by the Court’s ruling, they need to do more than take pot shots at the commentators on their blogs and fight the strawmen they find vulnerable.  Rather, they need to confront head on the thoroughly brilliant and comprehensive argument put forward in the dissent, which richly explains why the Constitution’s text and history – including that of the First Amendment – do not support the majority’s reasoning.  Every American should “stand with the First Amendment.”  In Citizens United, that is best done by standing with Justice Stevens.

To its great credit, the American Civil Liberties Union (ACLU), which has long endorsed an “absolutist” line on the First Amendment similar to Greenwald’s, continues to debate whether its position is the right one, particularly in light of Citizens United. Hopefully, Greenwald will be similarly open to reconsideration of his position after fully absorbing the power of Justice Stevens dissent.  As President Obama’s powerful attack on Citizens United in his weekly address to the nation makes clear, Citizens United represents a unique opportunity to energize progressives and populists to fight against the activism of the Roberts Court and to support a long-term strategy to put the Supreme Court back on track.  Progressive commentators should not lightly undermine this effort.

That is because today, the Court’s conservative majority re-wrote the Constitution to give corporations—never mentioned in the Constitution—the same right to influence the electoral process as ‘We the People.’  As the NYT’s Adam Liptak explains, “Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court … ruled that the government may not ban political spending by corporations in candidate elections.” The justices did what many progressives feared for months they would do:  hold that long-standing restrictions on corporate campaign spending violate the First Amendment.

The Court’s ruling could transform our electoral politics.  During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion.  With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.

As overwhelmingly demonstrated by Justice John Paul Stevens’ breathtaking dissent – read aloud from the bench and joined by Justices Ginsburg, Breyer, and Sotomayor — today’s ruling is startlingly activist and plainly contrary to constitutional text and history.  Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them.  Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone.   In a profoundly wrong interpretation of the First Amendment, the Court granted corporations the right to drown out the voices of individual Americans in our Nation’s elections.

Americans must take away the right lesson from this devastating defeat.  The law itself was not the problem here; the statutory and case law, and the Constitution itself, very much supported the opposite outcome.   And while progressives should feel free to pursue creative ways in the wake of the decision to limit corporate efforts to influence electoral politics (boycotts, stockholder protests, etc.), we should not kid ourselves about an effective legislative fix, as Rick Hasen points out.  The Court sweepingly rejected limits on corporate electioneering expenditures on constitutional grounds.  The only ways to “fix” the Court’s ruling in Citizens United are to change the Constitution to expressly permit restrictions on corporate campaign spending or fight a long-term battle over the future of the Supreme Court, eventually producing a ruling overturning today’s profound error.  Only the latter option is plausibly successful.

A progressive long-term strategy to put the Supreme Court back on track is particularly fitting, given that today’s ruling is the result of a long-term conservative plan to change the Court to serve corporations’ interests.  As explained in this discussion draft of a forthcoming report entitled A Capitalist Joker: Corporations, Corporate Personhood and the Constitution, the roots of today’s decision in Citizens United go back at least as far as a 1970 memorandum written by Lewis Powell to the Chamber of Commerce, urging the Chamber to focus on a “neglected opportunity in the courts,” and noting that “the judiciary may be the most important instrument for social, economic and political change.”

Justice Powell was nominated to the Supreme Court the next year and in 1976 he authored a 5-4 ruling in First National Bank of Boston v. Bellotti, an opinion which first introduced many of the ideas about the First Amendment seized upon by the majority today.  His memo contributed to the rise of the conservative legal movement, a forty-year period in which conservative legal activists have fought tooth and nail to move the federal judiciary sharply to the right.

Progressives have seen the profound stakes in this battle before, most notably in the Court’s ruling in Bush v. Gore.  Like that ruling, Citizens United blows away any notion that conservative judges, who profess to be “originalists” and “umpires,” are in fact faithful to our Constitution’s text and history or bound by reasoned precedent.

Courts will end up deciding whether just about every part of the progressive agenda stands or falls.  Progressives need to demand, louder than we are now, judges who will follow our Constitution’s text and history and honor the Constitution’s progressive promise for ‘”We the People.”  Sadly, today we have a startling new reminder of just how much this fight matters.

There is already a vast amount of commentary on today’s revolutionary—and not in a good way—campaign finance ruling in Citizens United; here’s our statement on the case, and we will post our own analysis of the decision shortly.

For the moment we would like to highlight some of the best quotes from Justice Stevens’ remarkably powerful 90-page dissent.  Looking for classic Robertsian “judicial restraint”?  You won’t find it in the majority opinion or in the Chief Justice’s concurrence.  Principled originalism, a la Scalia and Thomas? Again, you won’t find it in the majority opinion that the self-professed “originalists” joined, but instead in Stevens’ dissent, which offers a tremendous quantity of evidence showing that American legislators since the Founding have regulated undue corporate influence on politics without running afoul of the First Amendment. The entire opinion is worth a read, but for those who can’t digest all 90 pages this afternoon, here are a few key highlights after the jump:

The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case. (2)

Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office…[t]he financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. (2)

Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907…The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. (2-3, internal cite omitted)

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. (4)

Our colleagues’ suggestion that ‘we are asked to reconsider Austin and, in effect, McConnell,’ would be more accurate if rephrased to state that ‘we have asked ourselves’ to reconsider those cases. (4, internal cite omitted)

Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law. (6)

[T]here were principled, narrower paths that a Court that was serious about judicial restraint could have taken. (16)

The only relevant thing that has changed since Austin and McConnell is the composition of this Court. (23)

It is likewise nonsense to suggest that the FEC’s ‘business is to censor’…the majority’s characterization of the FEC is deeply disconcerting. (27, n.39)

Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech. (33)

[I]n light of the Court’s effort to cast itself as the guardian of ancient values, it pays to remember that nothing in our constitutional history dictates today’s outcome. To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is. (41)

It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established. (76)

All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech’…[i]n the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process. (83, internal citations omitted)

The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold[.] (85)

Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today. (85-86)

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, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. (90)

WASHINGTON, DC — The Supreme Court today re-wrote the Constitution to give corporations—never mentioned in the Constitution—the same right to influence the electoral process as “We the People.”

The federal political process is the centerpiece of our constitutional democracy.  Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone. Two centuries ago, the Supreme Court under Chief Justice Marshall recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them.  But today, in the name of the First Amendment, the Court gives corporations the right to drown out the voices of individual Americans.

The Court’s ruling could transform our electoral politics.  During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion.  With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.

The Court’s decision today is startlingly activist and a sharp departure from constitutional text and history; our democracy will suffer for it.  We can only hope that the ruling is as short-lived as it is wrongly decided.

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Constitutional Accountability Center is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. CAC filed a brief in Citizen’s United on behalf of itself and the League of Women Voters.   CAC has also released a discussion draft of a forthcoming report, tentatively titled “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution, which fleshes out the main point of our brief: the argument that corporations do not have the same constitutional rights as individuals, particularly when it comes to influencing electoral politics in this country.

Citizens United v. FEC raises fundamental questions about our Constitution, and our democracy. It is with good reason that the Court’s failure to decide the case to date has received more press than most actual Supreme Court decisions receive. Citizens United argues that corporations have the same constitutional rights as the American people do to spend money on elections, and that the government may not limit corporate spending on elections. If the Court agrees, our democracy will suffer for it. Obama’s 2008 fundraising records could easily have been dwarfed by a single mega-corporation willing to divert a tiny fraction of its profits to the election of its preferred candidate.

If the Justices decide the case based on the Constitution’s text and history, Citizens United’s sweeping claim would certainly be rejected. In CAC’s forthcoming report, “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution” (released as a discussion draft in December and available here), we show that, from the very beginnings of our Nation, the constitutional protections available to living persons and corporations have been fundamentally different. While James Madison wrote the Bill of Rights to protect the “great rights of mankind,” corporations did not have any right to exist, let alone the same fundamental rights as “We the People.” From the founding on, as Chief Justice Marshall explained, corporations were “artificial being[s], invisible, intangible, and existing only in the contemplation of law” and “possess[ing] only those properties which the charter of creation confer. . . . ” To be sure, corporations received a host of special privileges that enabled them to succeed in business and some limited constitutional protection for their property rights, but these corporate attributes subjected them to greater government regulation, not less.

The distinctions between citizens and corporations are most pronounced when it comes to elections. The Constitution protects the rights of citizens to vote through constitutional amendments that no one could reasonably read to protect corporations, and prevention of improper corporate influence over the electoral process has been a pillar of our democracy as far back as 1833, when President Andrew Jackson castigated the Bank of the United States for its political spending on elections. In 1907, Congress enacted the Tillman Act and wrote into federal law a sharp distinction between the campaign finance laws applicable to living persons and those applicable to corporations, with the latter strictly regulated to prevent corruption of the electoral process. That sharp distinction has been there ever since, repeatedly reaffirmed by Congress and upheld by the courts.

For most of our Nation’s history, Supreme Court doctrine comported with our Constitution’s text and history. But beginning in 1886, the Supreme Court began to engineer a change. In Santa Clara v. Southern Pacific Railroad, the Court’s court reporter wrote into the opinion’s head-notes a statement made by the Chief Justice during oral argument that the Constitution protects corporations as persons. In the decades that followed, the Lochner-era Supreme Court relied on this fabricated precedent, giving corporations constitutional rights and demanding that corporations be treated equally with living persons. This disastrous departure from constitutional first principles proved to be short-lived. Beginning in 1937, virtually every aspect of the Lochner era’s protection of corporate constitutional rights was repudiated, with the Court ultimately declaring in 1973 that the idea of equal rights for corporations was “a relic of a bygone era.”

Today, much of the Supreme Court’s doctrine about corporations gets the Constitution’s text and history right. For the last thirty years, the Court has regularly affirmed that corporations do not have the same right to participate in the political process as individuals do, and that the integrity of our political system would suffer if corporations could take advantage of the special privileges they receive to succeed in the economic marketplace to help elect candidates willing to do their bidding. These cases, now on the chopping block in Citizens United, are hardly outliers. The Court’s Fourth Amendment doctrine has consistently recognized that corporations do not have the same Fourth Amendment rights as individuals do, reasoning that “[f]avors from government often carry with them an enhanced measure of regulation.” Since the early 20th Century, the Court has held that corporations are not protected under the Fifth Amendment’s Self-Incrimination Clause. Having accepted special privileges from the government, a corporation cannot invoke the Fifth Amendment to keep the government in the dark about criminal acts committed using those special privileges.

Text and history, and respect for precedent, together make for a powerful argument in Citizens United. They explain why corporations and living persons do not have the same First Amendment rights, why Congress may limit corporate spending on elections, and why, when the Court finally issues its long-awaited ruling, the Court should reaffirm its precedents upholding limits on corporate election spending.

The retirement decisions by Senators Chris Dodd and Byron Dorgan last week gave pundits and analysts story leads, but a far more important announcement is coming, maybe as soon as tomorrow. The Supreme Court, with its five-justice conservative majority, is expected imminently to release its long-awaited decision in Citizens United v. FEC. The ruling could have a much greater influence on the prospects of progressives in 2010 than any individual candidate’s decision to run. Indeed, the Court could change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending.

Citizens United involves a hit-job documentary called Hillary, The Movie, produced by David Bossie for Citizens United to coincide with the 2008 presidential primary season. The case began as a relatively insignificant, technical challenge to the Federal Election Commission’s decision to treat the film’s production and release as “corporate electioneering,” subject to regulation under the McCain-Feingold campaign finance law. It was transformed into a potential blockbuster last June when the Supreme Court ordered the parties to brief and argue the question of whether the law itself, which restricts the political use of corporate funds, is unconstitutional and whether prior cases upholding such restrictions should be overruled.

Citizens United is now arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would jettison a distinction that has been in place in our Constitution since it was written and in our statutory law since the Tillman Act of 1907. As a result, corporations would get a green light to spend unlimited amounts of money in elections.

To see the significance of this, consider that in his historic run to the presidency, Barack Obama broke every political fundraising record, raising nearly $750 million from more than a million contributors in 2007 and 2008. This sounds impressive until you consider that during 2008 alone, ExxonMobil Corporation generated profits of $45 billion. With a diversion of even 2 percent of these profits to the political process, Exxon could have far outspent the Obama campaign and fundamentally changed the dynamic of the 2008 election, perhaps even the result.

Projecting this forward to 2010, ExxonMobil could spend a small fraction of its profits and transform close elections involving supporters of a clean energy bill that moves the economy away from fossil fuels. Insurance companies, drug companies and bailed-out Wall Street banks could do the same thing in races involving candidates whose positions they dislike. President Obama and his supporters have learned this year just how hard it is to bring change to Washington. Just think about how difficult change will become if corporations can use their general treasuries to put a gun to the heads of vulnerable politicians.

Opponents of campaign finance laws claim that such a ruling overturning limits on corporate spending in elections is necessary to vindicate the First Amendment rights of corporations. That’s a crock. The Constitution never mentions corporations – it protects “we the people” – and from the dawn of the Republic the Supreme Court has held that corporations, which are artificial entities, created by the state to facilitate commerce, and given special privileges that average citizens don’t have, are appropriately subject to greater government oversight. A ruling by the Court overturning this centuries-old tradition would be indefensible judicial activism, as explained in detail in this historical analysis released by Constitutional Accountability Center in December.

Distinctions in the constitutional protections afforded to living persons and corporations are particularly appropriate in the political arena. Corporations are not citizens, they do not vote, and cannot run for office. “We the People” create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons. This is the law today, but, tragically, it may not be the law at week’s end.

Indeed, whenever the case is decided, Citizens United may ultimately top Bush v. Gore as the leading example of how the conservative-dominated Supreme Court is overreaching and thwarting progressive change: while Bush v. Gore gave us eight years of President George W. Bush, Citizens United could put progressive candidates at a disadvantage for generations to come. And Citizens United is only one of many cases in which the progressive agenda is at risk. The lede of this recent article in The Hill newspaper says it all: “Republicans and allied groups say they will spend millions to oppose healthcare reform and other Democratic initiatives in the courts, which they see as a last line of defense against President Barack Obama’s agenda.”

It’s hard to predict with any great certainty what the Court will decide in Citizens United. The conservative majority on the Court seemed poised to issue a sweeping ruling last spring striking down a critical component of the Voting Rights Act, then ended up deciding the case on narrower grounds. A similar result is still possible in Citizens United.

What we do know is that the courts will end up deciding whether just about every part of the progressive agenda stands or falls. If progressives need any reminder of the central message of Bush v. Gore, here it is: courts matter.

Cross-posted on Huffington Post.

Pottwattamie concerned two African-American men, Terry Harrington and Curtis McGhee, who each spent 25 years in prison for the 1977 murder of a white man before their convictions were overturned by the Iowa Supreme Court following the revelation that Pottawattamie County prosecutors had fabricated evidence against them. Harrington and McGhee then brought a civil rights action against the prosecutors, which made its way to the Supreme Court after the 8th Circuit ruled in favor of the two wrongly convicted men that the prosecutors did not have absolute immunity from liability for their misconduct.  As reported by SCOTUSBlog, the settlement of the case involves a total payment of $12 million to Harrington and McGhee.

More details about this case, and its implications for constitutional text and history, are available here.  As we’ve discussed, the doctrine of absolute prosecutorial immunity is both difficult to apply and contrary to constitutional text and history; thus, the settlement and dismissal of this case  means the Court will not have the opportunity, at least not this Term,  to clarify its immunity jurisprudence – or, more important, to recognize the error of absolute immunity.

However, the parties’ decision to drop the case does leave in place the 8th Circuit’s decision in favor of Harrington and McGhee, which held that in this instance, the prosecutors did not have absolute immunity because the misconduct at issue occurred when the prosecutors were acting as investigators, rather than performing “prosecutorial functions.”  The press release issued by Harrington’s counsel presents an eloquent depiction of the injustices wrought by flagrant prosecutorial misconduct and the need for the Supreme Court to modify its jurisprudence so that more prosecutors will be held to account for constitutional misconduct.