“Corporations Are Not People” said the sign, held high by a lone demonstrator, as we wheeled into the parking lot of the Hilton Garden Inn to attend the annual meeting, and 40th birthday celebration, of the Montana chapter of the American Civil Liberties Union – the ACLU.
We gave the demonstrator the thumbs-up sign, though we weren’t sure why he was there. Oh, we understood his message well enough: It referred to the legal solidifying of the concept that “corporations are people” on Jan. 21, 2010, by a much maligned 5-4 vote of the U.S. Supreme Court in a case called Citizens United.
This decision affirms the “free speech” rights of corporations to donate gobs of money to political campaigns, and it is maligned by people who agree with one of the four dissenting justices, John Paul Stevens (now retired), who argued that corporations exist only as legal entities, not as living breathing beings, and who went on to say, “A democracy cannot function when its constituent members believe laws are being bought and sold.”
The Citizens United decision is not only maligned but regularly mocked, as in: “I’ll believe a corporation is a person when Texas executes one.” (That joke was going around while Texas Gov. Rick Perry, an enthusiastic supporter of his state’s death penalty, was still running for the 2012 Republican Party nomination to run for president of the United States.)
Soon enough we realized that the demonstrator was not protesting some bad corporate practice but was criticizing the ACLU’s choice to back Citizens United. The reason? The ACLU, which sees its primary task as defending the first 10 amendments to the U.S. Constitution, the Bill of Rights, is defending the First Amendment.
There are celebrated instances when the ACLU has alienated people normally sympathetic to its mission by doing things like going to court to defend the “free speech” rights of Ku Klux Klan members seeking a parade permit to march down a street in the middle of an African-American community.
To back or oppose
The ACLU’s defense of Citizens United has also created controversy, not only outside the ACLU but within its half a million members. The vote by ACLU directors on whether to support Citizens United was reportedly 36-33. When I asked the Montana ACLU director, Scott Crichton, about the chapter’s position on this issue, he said it was “nuanced.”
Crichton pointed out that corporations are not only for-profit entities like ExxonMobil but not-for-profit entities like Planned Parenthood or labor unions – or the ACLU.
“We’re a union,” he said, “and I don’t want us to lose the right to speak out.”
Eighty-five people attended the meeting, from lunchtime to late afternoon, Saturday, March 10. Statewide offices are in Helena and Missoula, but Billings was chosen as the site for this 40-year anniversary because the statewide chapter was started here back in 1972. Crichton came aboard as executive director in 1988 - “a few weeks before George Bush The First was criticizing Dukakis as a ‘card-carrying member of the ACLU.’”
The variety of issues being tackled by the state organization through either policy work or litigation – sometimes both – was impressive. A partial list includes: a “Fair Is Fair” campaign to ensure equal rights for LGBT (lesbian, gay, bisexual, transgender) people – including full partnership rights for gay couples; an “Abolish the Death Penalty” campaign involving close cooperation with Montana church groups; challenging aspects of the lethal injection procedure (whenever the death penalty is carried out); religious freedom for imprisoned Native Americans who wish to engage in sweat lodge ceremonies; lightening the heavy requirement on independent, non-party candidates trying to get on the ballot; clarifying and reforming Montana’s medical marijuana law; and much more.
Steve Shapiro was here from the national headquarters to talk about multiple issues at that level, and regale the audience with tales of how the U.S. Supreme Court functions – or does not function. Shapiro has worked for the ACLU since 1976, and is its national legal director, leading a staff of a couple of hundred attorneys.
Presentations, question and answer sessions, and round-table discussions involved everyone in discussions throughout the afternoon, but the center point for many was a panel on “Campaign Finance Reform” that reflected the disagreement within ACLU on the Citizens United decision.
Steve Shapiro was joined by two Montana attorneys, Kyle Gray and Jon Ellingson, to discuss the issue. Gray has been a longtime adviser, advocate and consultant with the Montana chapter, and she sided with Shapiro in supporting ACLU’s defense of Citizens United.
Ellingson took the other side. Ellingson lives in Missoula, is a former majority leader of the Montana Senate, and this year was named legal director for the Montana ACLU. Applying for the job, he asked whether he’d be expected to agree with everything the ACLU did. He was told no. (Crichton pointed to his subsequent hiring as an example of the diversity within the ACLU.)
Ellingson’s critique of the ACLU stand on Citizens United resonated with many in the audience. He argued that “speech” is regulated all the time in our culture, in various ways. He offered examples from the Legislature, which has time limits and other rules to govern debate, and he noted that the way this very panel was structured - three speakers followed by a question and answer session - was a form of regulation.
Shapiro had said that the ACLU simply does not want free speech to be limited. He used an analogy from economics: our society cannot successfully exert control over the influence of money by “limiting supply”: Limits on campaign financing, for example, have been tried since the Nixon era, and have not worked.
“Super PACs (political action committees) are simply this election’s iteration of the loopholes in campaign financing laws,” he said. “Reverse Citizens United tomorrow and money would still flood politics.”
Instead of “limiting supply” Shapiro favored “limiting demand” for big-money-funded messages by expanding the marketplace of ideas. What we need is “public option” financing of elections, he said. This wouldn’t stop the flow of private dollars into campaigns, but it would offer another option.
Unfortunately, he said, the Supreme Court has tossed out Arizona’s public option law – “an enlightened law,” all three agreed – and this invalidates or endangers other state-initiated public option efforts.
Connection to Citizens United
As far as direct corporate money flowing into political campaigns, there is a Montana connection to the Citizens United issue. Late last year the Montana Supreme Court upheld, by a 5-2 vote, a 1912 Montana law spinning out of popular resistance to control of the state’s politics by the Anaconda Copper Co. The law banned corporate contributions to political campaigns.
A group called the Western Tradition Partnership (which later changed “Western” to “American”) challenged this law, on the basis of the U.S. Supreme Court’s verdict in Citizens United.
Not surprisingly, the U.S. Supremes have suspended this action by the Montana Supremes, pending a hearing on the issue, thus opening the door to direct corporate donations to current political campaigns.
Ellingson deplored that action and, picking up on Shapiro’s “supply and demand” analogy, compared the “economic marketplace” the “marketplace of the ideas.” Ellingson, who has a bachelor’s degree in economics from Harvard, said that the economist Adam Smith did not favor a totally “free” market but advocated a “competitive market.” This means that some regulation is needed over the market economy or monopolies will prevail.
It’s the same thing with ideas, he said. If Fox News repeats a lie over and over, it comes to be widely believed – it’s an idea monopoly – and this “distorts the ability of the audience to hear other points of view.”
Kyle Gray countered that Fox News (owned by Rupert Murdoch’s News Corp.) is a media company, and media companies would be exempt from controls over corporate speech. So overturning Citizens United would create the “Fox News Can Speak, Ben and Jerry’s Can’t Speak Law.”
“Jon’s regulations,” she asserted, “can’t work. Who enforces them? Whom do we trust? There is no way to do it well.”
Furthermore, Gray said, the Arab Spring and the Occupy Movement are proving that “nobody can buy the truth any more – there are too many forms of media out there.”
In the Q and A session, Roger Roots was the first to stand up. He portrayed himself as different from most of the people in the room: “I’m a libertarian – I support Ron Paul in most things – and an ACLU member.” Roots thanked Shapiro and Gray for “restoring his faith in the ACLU for its stand on the First Amendment.” Then he challenged Ellingson to respond.
Ellingson remarked that “ACLU is not absolutist,” and insisted that “the First Amendment is limited in certain accepted instances.” How can corporations “speak,” he asked, when they do not have “the ability to think, or have a conscience?”
Shapiro commented that corporate dollars in the political process have “exacerbated an existing problem” – inequality of opportunity – which he described by quoting an old saying: “Freedom of the press belongs to those rich enough to own one.” Then Shapiro went on to question whether corporate dollars always mean corruption and wonder if union pressure – say a union threatens to organize people to vote against a legislator who doesn’t vote according to the union’s wishes – is equally corrupt.
An audience member disputed Shapiro’s suggestion that corporate dollars were no worse than union pressure. Organizing people face to face, he said, seems a legitimate way to influence the political process.
“Information power is the most important thing today,” he said, “and too often it is money that buys it.”
Shapiro took the man’s point. At the end of this session, he picked up on earlier references to the Occupy Movement, and its analysis that “the 1 percent” who are wealthy enough to buy the representatives and senators are victimizing “the 99 percent” who are not.
“If people just came out and voted,” Shapiro said, “people could overwhelm money.”