Allan Powell: Citizens United decision is a two-year-old monster

April 13, 2012|By ALLAN POWELL

The Citizens United Supreme Court decision is now two years old. The majority opinion of five ultra-conservative justices shows their determination to advance the power and wealth of corporations. They gave this awesome gift by affirming that corporations are persons with protected free speech expressed in the form of money. It took precious little time for this decision to prove the fears predicted: It opened the floodgates of money to further corrupt elections. This decision will “live in infamy” until it is overturned.

It is tempting to resort to bombast to discredit this legal mistake, but loud voices won’t work. To say that this decision is worse than Dred Scott is verbal overkill. It is true that Dred Scott was perhaps the worst call ever made by our High Court. Justice Roger B. Taney (a Marylander) used obiter dicta (opinion beyond the case) to belittle the native abilities of slaves. It is generally considered to be another factor in bringing on the Civil War. This makes it more scandalous than Citizens United, which only promoted a legal fiction and moved us another step toward a plutocracy.

This conservative majority pulled the rug out from under the slow and wobbly attempts to control the influence of money on our elections. The response was immediate after the decision was made (Jan. 21, 2010). An influx of huge, single source, donations from unidentified donors made it clear that money could buy election returns.

Opinions vary widely about the consequences of this decision. It was predictable that columnist George Will would be favorable, and he quickly pronounced the decision to be “splendid.” On the other hand, E.J. Dionne Jr., an equally able critic, asserted that “it will go down as one of the most naïve decisions ever rendered by the Court.” He then went on to make a more serious charge that these five conservatives had a more devious design — “… to strengthen the hand of corporations and the wealthy.”

A look at the dissenting opinion of Justice John Paul Stevens will give you the distinct sense that he is warning us of what we can expect in future elections. He wrote, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” This is a warning that the system has been rigged.

Another troublesome possibility is the influence of money from foreign sources that have a vested interest in a certain result. Stevens wrote, “More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans … .” In time, the picture will be clearer about the prescience of Stevens’ opinion.

Stevens then directed his barbs at the majority opinion’s miraculous transformation of an artificial “person” (a corporation) into a fictitious entity (“person”) with really superhuman capabilities, yet devoid of characteristics truly human and possessed by a natural person. This newly transformed “person” now had protected speech (expressed as money) but had “… no conscience, no beliefs, no feelings, no thoughts, no desires.” He also calls this creature “a useful legal fiction.” If five liberal justices had tried to get away with such a phony “person,” the conservative justices would have broken out in laughter.

The problem now is to figure a way to escape from the clutches of this troublesome “person.” Probably, the only recourse is to take the same route that was used to bring an end to Dred Scott — a constitutional amendment. This remedy will not be easy. The other possibility is equally uncertain. If President Obama is re-elected, there is a chance that two or even three justices might retire. This would open the door to a change in the composition of the Court.

The much expanded definition of “personhood” was passed by a one-vote margin. This puts Citizens United on a very flimsy platform. But there is comfort in knowing that just as there was a gradual accumulation of power to create such a dubious “person” as concocted in Citizens United, there can be a gradual turn of events to bring it to an end. Citizens United does not deserve another birthday celebration.

Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.

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