Guest Column: A Campaign Finance Coup d'état

The U.S. Supreme Court’s recent decision in Citizens United violates every principle of constitutional decision-making — and will be remembered as a judicial coup d’état intended to tilt the 2010 elections.

The Court's majority, in overturning the prohibition on corporate and union funding for election ads, went out of its way to declare a major Congressional law unconstitutional, even though its bedrock procedural doctrines dictate that the Court should avoid doing so whenever possible. These doctrines may seem like technical niceties, but they actually reflect core American legal values: deference to the people’s representatives in a democracy, an understanding that an unelected Court should shun political issues, and our humble and wise tradition of courts deciding just the specific matter before them.

The Citizens United thumbs its nose at all that. First, the Court addressed and decided an issue not brought by the parties. Citizens United, an advocacy nonprofit that took little corporate money, renounced in the trial court its “facial challenge” that the corporate prohibition on funding independent political ads was unconstitutional in all circumstances. Citizens United asked the Supreme Court to decide only whether the corporate funding prohibition was unconstitutional “as applied” to them in their narrow fact situation. The Court decided on its own to address the facial challenge, holding the statute unconstitutional as applied to all corporations, even for-profit corporations, in all circumstances. There was no evidence in the record that there were exceptional circumstances; and the Supreme Court would be hard pressed to prove them, since the country has had a corporate campaign prohibition since 1907 and we have had no apparent shortage of vigorous free speech. The Court’s power grab constitutes activist judicial arrogance.

Second, the Court easily could have decided, if it had wanted to, the case for Citizens United without addressing the constitutional question. It could have held that the statute, which banned corporate and union funding of television ads referring to federal candidates within thirty days of a general election, did not apply to a video-on-demand movie, as was involved in this case. It could have held that Citizens United fit a long-standing exception for certain advocacy nonprofits that take little or no corporate funds. However, the Court could not control its ideological desire to eliminate the corporate prohibition on funding electioneering that has been the law of the land for over 100 years and upheld by both conservative and liberal courts — until now.

Last but not least, the Court violated the conservative principle of stare decisis (“stand on the decision”), which means it should follow its prior decisions except in very special circumstances. How special? The  Court did not even expressly overrule in Brown vs. Board of Education its infamous decision in Plessy v. Ferguson creating the doctrine of “separate but equal.”  Stare decisis allows the public and policymakers to rely on prior Court decisions and protects the integrity of the Court by ensuring that the laws are more than the personal whims and conceits of five unelected lawyers appointed for life. Yet in Citizens United, there is no evidence of special circumstances in the record that would justify overturning years of settled federal and state law. The Court appears to have mistaken its political desires for an emergency, undermining stare decisis and its own legitimacy.

There are new statutory provisions that the Congress and the Texas legislature should pass to keep corporate and union funds out of our elections. They could ban corporate campaign expenditures by any company that has substantial government contracts. They could prohibit corporate political expenditures unless 2/3rds of all shareholders affirmatively approve. They could outlaw corporate campaign contributions from all corporations that have foreign subsidiaries or significant foreign investors. They could mandate that all state corporate charters or certificates to do business in their state proscribe corporate political expenditures to influence elections.

But the long-term answer to special interest domination of our democracy is developing stronger and broader civic and political participation. In Texas, millions of our adult citizens are not civically engaged, do not vote, and are not informed. In other states, foundations, businesses, and individuals have attacked successfully their civic engagement deficits by focusing resources and energy on the problem. For example, investments in civic engagement of disengaged Latinos have been made in New Mexico and Colorado, and Latino turnout has increased markedly. In Texas, civic engagement and voting lags terribly, especially among Latinos. In the 2008 presidential election, according to the U.S. Census, turnout of Hispanic adult citizens in Texas was just 37.8 percent, which was less than the turnout in Colorado (40 percent) and New Mexico (51 percent) in the 2006 mid-term elections! Turnout of adult Hispanic citizens in Harris County in 2008 was even worse: only around 21 percent.

The only way the needs of regular Texans will be addressed — as opposed to the special interest needs of the powerful — is for the public to become much better informed and more engaged; to get educated, organized, and involved. Even an arrogant, lawless Supreme Court cannot stop that juggernaut.

Fred Lewis is a lawyer, a nonprofit founder and the executive of Texans Together Education Fund and Forward Texas! Foundation, and public interest advocate.