Citizens United Comes Calling In Montana-- A Guest Post By Franke Wilmer

I have to admit something-- I have a special place in my heart for literate candidates. Give me a well-read candidate who knows how to read and write and I'm always happiest. The first time I ever wrote about Montana Democrat, Rep. Franke Wilmer, I compared her to Barbara Ehrenreich... in the title. When the U.S. Supreme Court struck down a Montana supreme court decision to keep corporate money out of state politics, the first person I thought of calling for a guest post was Franke. Although she's busy running for Montana's open congressional seat, she worked on a post-- and she didn't disappoint. (Please consider contributing to Franke's campaign here at the Blue Amerca page.)


How Can You Speak Without Breathing?

-by Rep. Franke Wilmer

Try this experiment: Hold your breath. Now keep holding your breath and speak. You are, in this experiment, what Wyoming gunfighter trial lawyer Gerry Spence calls a “non-breather,” an entity with legal personality other than “breathing” human beings. Breathers can speak, associate, hold beliefs, and participate in the political process by voting or even running for office. But corporate entities-– non-breathers-- whether non-profit or for-profit, cannot vote or run for office.

Conflicting appellate court decisions have been asked whether the government possesses the power to restrict speech by “non-breathers,” and if so, on the grounds of what “compelling interest?” Speech freedom was clearly intended to apply to “breathers”-- human beings expressing political opinions. But when breathers associate for common purpose, as they do when they incorporate (whether non or for profit), does their association create an entity entitled to the same rights as individuals? Must their collective speech be protected, particularly when wealth buys “speech space?”

Constitutional protection of speech must be weighed against other democratic values and should transcend ideological differences. No one wants to restrict speech with which they agree. Unions, citizen action groups, and profit-making corporate businesses are all non-breathers.

The debate about Citizens United raises two important questions (1) is money spent to express political opinions protected by the First Amendment regardless of who is speaking (a breather or non-breather) and (2) if so, is there some compelling reason to restrict monied speech? My answer is “yes” to both questions.

Citizens United holds that fair access to the means of expressing of political opinions is not necessary to our democracy. It is wrong for two reasons. First, Citizens United may have reduced some “chilling effect” on corporate speech by creating a “chilling effect” on the speech of regular breathing people who cannot compete for access to “speech space” in a world where that space goes to the highest bidder. Wealthy non-breathers win. Citizens United gives a megaphone to the speaker with the most money to the point of being able to drown out virtually all other speakers and their opinions.

Second, campaign finance laws, including Montana’s 1912 Corrupt Practices Act, restrict campaign contributions because direct contributions create a likelihood or appearance of corruption in the form of quid pro quo favors from the winning candidate. Do unlimited independent expenditures present the same risk of corruption raised by direct campaign contributions? In Citizens United the court simply found no evidence that it does.

The court is wrong. Writing for the majority, Justice Kennedy concludes that:

"[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy."

Really? The “appearance of influence or access” has been apparent for years, with only 9% of the electorate having a favorable view of Congress and recent opinion polls showing that the Citizens United decision is intensely unpopular. Sixty-two percent of Americans across the political spectrum oppose the ruling. The “appearance of influence or access” has already caused the electorate to lose faith in this democracy. What planet do the five justices concurring in the majority live on?

Most of the money candidates spend is to exercise “speech freedom” advocating their own positions and candidacy and tearing down their opponents’ records or suitability to serve. There are limits on the campaign contributions associations of citizens may make to a campaign, consequently limiting the candidate’s speech. How is this different when the “donor” expresses exactly the same speech but does not “collude” with the candidate by donating directly?

The potential for corruption when donors spend money to say what the candidate wants them to say and expect favorable treatment in return, and ability of the wealthiest speakers to drown out the rest, are serious concerns and apply to all non- breathing speakers.

Corporations are imperfect citizens. Corporations benefit from limited liability, cannot vote or run for office, they pay taxes, and enjoy speech freedoms. But in no way do they enjoy all the same fundamental freedoms, civil liberties, and responsibilities that living, breathing human citizens enjoy. Independent expenditures are not independent. They express a political opinion during a campaign that is intended to favor one candidate and defeat another. In return, the candidate they speak in favor of will inevitably be indebted to their efforts. And that is what is undermining “our faith in this democracy.”