Editor’s note: This op-ed is by Doug Hutchinson, a semi-retired physician with a law degree and an interest in U.S. Supreme Court jurisprudence and constitutional law. He lives in Addison.
On Town Meeting Day, Vermonters from more than 50 towns will be asked to express their opinion on whether Sens. Leahy and Sanders and Rep. Welch should urge their respective legislative bodies to move forward on an amendment to the U.S. Constitution. The proposed constitutional amendment is called the Saving American Democracy Amendment. The purported purpose of the amendment is to overturn the effect of the Citizens United v. Federal Election Commission decision of the U.S. Supreme Court. Many politicians including Sen. Sanders, who has spearheaded the movement to amend the Constitution, have viciously attacked the court and its justices, but there has been far more heat than light in this assault and a more measured, balanced presentation seems desirable before Vermonters vote on Town Meeting Day.
The Citizens United decision held that associations of persons including nonprofit and for-profit corporations and labor unions could spend money from their general treasuries for advertisements that are independent of and uncoordinated with the campaigns of candidates seeking offices. Supporters of the proposed amendment maintain that such independent and uncoordinated expenditures threaten the democratic electoral process presumably by overwhelming the will of the electorate with repeated advertisements.
Unfortunately, the push by Vermont’s elected federal officials to garner support for the amendment has come at the cost of factual accuracy about the court and the case. The following are a few often heard examples:
•Contended: The Citizens United case “overturned a century of settled law.” Fact: CU overturned a 19-year-old precedent called Austin v. Michigan Chamber of Commerce. The court was faced with two conflicting lines of precedent and it chose to uphold the longer standing one that preserved rather than overruled free speech. A 1907 federal law called the Tillman Act limited direct financial contributions to candidates for office. CU doesn’t address or change rules about campaign contributions, it only permits uncoordinated, independent expenditures.
•Contended: The CU case gave “personhood” status to corporations. Fact: Corporations have been considered to have some features of personhood since the late 19th century. To operate as businesses, corporations must be able to enter into contracts including employment contracts, and they must be able to own property. They never have had, nor do they now have, the right to hold office or to vote, which are of course principal features of personhood. Even the First Amendment free speech right of corporations is decades old. They weren’t invented in CU.
• Contended: The CU decision upheld rules permitting nondisclosure of the identities of corporate and other donors to the Super PACS that are the result of the decision. Fact: Not only did the court uphold all the disclosure rules, the FEC had created but the court’s language also indicates it would look favorably on additional disclosure rules that appropriate legislative or administrative bodies might create. The court itself is not empowered to create such rules and to expect it to do so signals a basic lack of understanding of how our three branches of federal government work.
• Contended: The CU decision permits foreign interests to financially participate in our electoral process. Fact: The court did not specifically address foreign participation in the electoral process in the CU decision but has considered the issue this term and has rejected foreign financial participation in our electoral process.
• Contended: The CU decision removes the ability of corporate shareholders to control independent political expenditures of a corporation. Fact: Corporate shareholders have long had a legal mechanism called a derivative suit to hold corporate officers accountable for their actions. More importantly, there is nothing in the CU decision that would preclude states through their laws controlling incorporation and business licensing from enhancing substantially the control of shareholders over corporate political spending.
Below are three examples of political ads drawn from the court’s opinion that were criminalized by the laws overturned by the CU decision.
• The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, which exhorts the public to disapprove of a congressman who favors logging in national forests.
• The National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. senator supports a handgun ban.
• The American Civil Liberties Union creates a website telling the public to vote for a presidential candidate in light of that candidate’s defense of free speech.
While we might not agree on the positions which are advocated in these ads, we can certainly agree that these sample ads are not alarming nor do ads of this type pose a threat to the will of an informed electorate. To be sure, the CU decision is increasing the amount of advertising associated with the current ongoing primary. I share the concern of critics regarding the amount of spending during this election cycle; however, shouldn’t we reserve a constitutional amendment until we have exhausted the remedies available through disclosure requirements and state regulation of incorporation and business practices?
The Founding Generation had great confidence that an informed common man could make the right decisions and separate the “wheat from the chaff” when it came to truth in political speech. I share the confidence of the Founders. I think it’s fair to suggest that our current congressional representatives may not. We were not guaranteed that democracy would be easy or that we could without effort survive as a democratic nation. If we successfully recommit to informing ourselves about issues from many sources, not just political advertisements or political rhetoric, the increased advertising to which the electorate is now exposed poses no threat to our democracy.
