CHANGING BASIC SOCIAL STRUCTURE? CITIZENS UNITED vs. FED ELEC COM

1. CHANGING BASIC SOCIAL STRUCTURE?CITIZENS UNITED vs. FED ELEC COM What is “Citizens United”? 2 Things: 1. A Political Action Committee 2. A Supreme Court Case

2. CITIZENS UNITED: The Political Action Committee • Founded by Floyd Brown (DC Political Consultant) • Funded by Koch Bros (Own 2nd Largest U.S. Private Co.) • Goal: Promote Limited Govt; Conservative Causes; Strong Families; Private Enterprise

3. CITIZENS UNITED:The Supreme Court Case • Original Aim of Citizens United: Produce Anti-Hilary Clinton Video • Case Presented in 2008 • Goal: Change Law Which Limited Corporate & Union Paid Political Ads

4. SUMMARY OF ISSUES • Citizens United Wanted to Broadcast Anti-Hilary Clinton Ads in 2008 Election Campaign • Included a Video Criticizing Hilary Clinton • Ads Violated 2002 “Bipartisan Campaign Reform Act” (McCain-Feingold Act) … • Which Barred Corporations & Unions From Paying for Media on Candidates Just Before Elections

5. HISTORY OF ISSUES • Long-Term Tradition Had Prevented Such Corporate Spending on Campaign Publicity • Case Had Gone through Lower Courts • Went to Supreme Court in 2008 • Supreme Court Overturned a Century Old Precedent Prohibiting Such Expenditures • Result: Greatly Increases the Amount Corporations Can Spend on Elections

6. ROLE OF FEDERAL ELECTION COMMISSION • Federal Election Commission (FEC) Was Defendant in Case • FEC Is Responsible for Managing Elections… • Citizens United Sought to Bar the FEC from Preventing Such Corp. Expenditures • So Citizens United Sued the FEC … • Case Made Its Way Through Lower Courts • Appeal went to U.S. Supreme Court in 2008

7. SUPREME COURT RULING • Court Declared Government Restriction on Corporations & Union Campaign Expenditures Unconstitutional • Stated Anti-Clinton Broadcast Should Have Been Allowed • Decision Overturned Century-Old Precedent Allowing Govt to Regulate Such Spending • Case Has Greatly Affected The Way Corp. & Unions Can Spend On Elections

8. SUPREME COURT VOTING PATTERN • Very Close Decision (5-4) • Voting in Majority: • Kennedy, Roberts, Alito, Scalia, Thomas • (The Traditional Conservatives) • Voting in Minority: • Stevens, Ginsburg, Breyer, Sotomayor • (The Traditional Liberals)

9. MAJORITY ARGUMENT • Barring Independent Political Spending Squelches Free Speech – Violates 1st Amendment • 1st Amendment Protects Speech – Regardless of Speaker (Organizations as Well as Persons) • Gov’t Has Right to Prevent Corruption – but Cannot Determine Whether Large Campaign Expenses Constitute Corruption • Public Has Right to Hear All Information – Spending Limits Prevent This

10. MINORITY ARGUMENT • 1st Amendment Protects Only Individual Speech – Not Speech of Associations • Government May Prevent Corruption – Campaign Spending Which Influences Legislators Can Produce Corruption • Government May Prevent the Appearance of Corruption – Such as Placing Limits on Corporate & Union Spending • Public Has Right to Hear All Information – But Corporate Messages Overwhelm All Others

11. PUBLIC RESPONSE TO CITIZENS UNITED PRO: Advances Free Speech – Gives All Corp. Equal Power to Media (Which Always Had It) NEUTRAL: Simply Increases Volume of Political Ads – Wouldn’t Affect Public Discussion Much ANTI: “Gives the Special Interests & Their Lobbyists Even More Power in Washington…” [vs.] “Average Americans Who Make Small Contributions to … Candidates” (Pres. Obama)

12. EFFECTS OF CITIZENS UNITEDEXTREME INCREASE IN POLITICAL SPENDING (Center for Responsive Politics)

13. SUMMARY: CITIZENS UNITED IMPACT • 2012 Election – 1st Since Citizens’ United • More Than 2x Political Spending As Any Previous Election • Research Indicates Increase Nearly All the Type Citizens United Allows • Does It Determine Election Winners? Some Suggest It Does Not (I.e., People Still Vote the Way They Think)

14. ALTERNATE POSITION (“RECLAIM DEMOCRACY”) 1. U.S. Founders of U.S. Restricted Corporations – Didn’t Intend to Give Constitutional Protection 2. Gov’t Has Authority to Prevent Corruption & Its Appearance – This Is Lacking Here 3. Majority Claims Spending Limits Prevent Full Information – Not True – We Get A Lot – This Approach Allows for a Monopoly of Information 4. Court Violated Stare Decisis – Overturned Its Own Decisions to Rule Here – Could Have Ruled Narrower (E.g., McCain-Feingold Did Not Apply to Video) – Went Beyond What Plaintiffs Asked

15. OTHER REASONS TO AVOID UNLIMITED SPENDING BY CORPORATIONS & UNIONS 1. Prevents Meritocracy of Ideas (E.g., Ideas Win Not by Merit but by Level of Spending!) 2. Has Influence Beyond the Ads – Politicians Dependent Upon Wealthy Donors’ Support 3. Unlimited Political Spending Focuses on Attack Ads – Creates Unthinking Partisanship – Not Thoughtful Discussion 4. Gives Large Corp Too Much Advantage Over Small Businesses (Amer. Indep. Business Assn.) 5. Need to Protect the Rights of Individuals & Protect Integrity of Elections (Most from Reclaim Democracy)

16. THE BIGGER PICTURE • Citizens United Not an Isolated Problem • Long-Term Increase in Corporate Political Power – at Expense of Individuals • Corporations Use Power - Receive Protections: • Obtain Influence in Govt Process • “Buy” Influence of Politicians • Gain Right to Hide Their Actions, Avoid Govt Regulation (EX: Monsanto  Prevent Disclosure of Genetic Manipulation of Food) (Reclaim Democracy)

17. CITIZENS UNITED PART OF BIGGER ISSUE • Largest Corp Taking Over Power from Citizens • Corp Personhood = Protection to Individuals • Corporations Are Persons? Or… • Non-Persons Have Free Speech Rights? • Citizens United Latest in a Long Line of Decisions Granting Constitutional Rights to Corporations

18. POSITION OF OPPONENTS • Under Current Legal Conditions, Only Way to Strip Corp of Constitutional Rights is Through a Constitutional Amendment • EX: Other Recent S. Ct. Decision on Campaign Finance: • Same 5-4 Decision as Citizens United [Law: Ariz Citizens Clean Election Act (passed 1998) Cases: Ariz Free Enterprise Assn v. Bennet; McComish v. Bennet]

19. GROUPS SEEKING TO REVOKE MOVE TO EXTREME CORPORATE POWER • Demos • Common Cause • Free Speech for People • Program on Corporations Law and Democracy • Public Citizen (Organization Established to Maintain Individual vs. Corporate Rights)

20. UPDATE: COMPANY DOE CASE (Pt. 1) • Facts of Case: • Child Injured by a Product • Rept Submitted to Consumer Product Safety Commission (Estab. Public Citizen, & Others) • Co. Making Product Sued to Suppress Report • Co. Asked That Co. Identity Be Hidden & Hearing Secret [Public Citizen Email, 11/9/13, Scott Michelman, Pub. Cit. Atty]

21. UPDATE: COMPANY DOE CASE (Pt. 2) • Request to Suppress Identity Granted by Judge • Case Lasted 9 Months • Final Decision Made Public 3 Months Later • Ruling Published – With Items Blocked Out: Name of Co – Product – Witnesses – Facts • Q: How Can People Protect Themselves, Their Children – If They Cannot Find Out What Products Prove Unsafe? Who Makes Them? What Evidence Exists? Etc.?

22. CONCLUSION OF “PUBLIC CITIZEN” • Public’s Right of Access to Court Proceedings Goes Back to Earliest Origins of U.S. Courts • Exceptions Made Only to Protect Most Sensitive Cases (Children; Persons at Risk of Retaliation) • These Cases Extend Personal Protect Rights to Non-Human Corporate Entities – Who Wish to Avoid Responsibility for Their Actions

23. TURNING CITIZENS UNITED ON ITS HEAD • Recent News Update (11/15/13) • Corporations Claim Rights of Individual Citizens (Free Speech; Confidentiality) • BUT: Corporations Now Claim Right to Take Away Rights of Individual Citizens • EX: 2 Reports: Texas Woman; Utah Couple • Customers Fined $3,500 for Writing Negative Review of Company Not Filling Order

24. BASIS FOR SUIT • Company Inserted Statement into On-Line Order Form … • “Non-Disparagement Clause”: • Customer “Promises Never to Say Anything Negative Re the Company” • Consequence? Corporations Now Have Individual Rights  Individuals Do Not! • Refs: www.dailymail.co.uk... couple charged; www.hutv.com.news ; www.offthegridnews.com; www.businessinsiders.com

25. CONCLUSION Questions? Comments? What Is Likely Outcome If Pattern Continues? Is This Appropriate? Is This Dangerous? What Is the Likelihood of Change?