The Initial Response

Immediately, four dissenting justices on the Court, led by eighty-nine-year-old Justice John Paul Stevens, sounded the alarm. Justice Stevens’s ninety-page dissent, among his last work before retiring, may be his greatest legacy.

Stevens, born and raised in Chicago, had enlisted in the US Navy on December 6, 1941, the day before the Japanese attack on Pearl Harbor, and received the Bronze Star for his service in World War II. He then began a twenty-five-year career as a lawyer and represented numerous corporations in antitrust cases. In 1969, Stevens led the investigation and prosecution of corrupt judges in Illinois and was hailed for his fair, honest, and determined approach. A Republican, he was appointed to the Court by President Gerald Ford in 1975. It would be difficult to find a more honest, moderate, and balanced judge.

Alarmed by the majority’s decision, Stevens took the unusual step of reading his dissent aloud in the Supreme Court’s public chamber. Although the elderly judge’s voice at times faltered, his words were unmistakable. Stevens called the Court’s action in Citizens United a “radical departure from what has been settled First Amendment law.” He blasted the Court’s conclusion that corporations, “like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” Justice Stevens said that “glittering generality” obscured the truth about what Citizens United really meant for America, already suffering from undue influence of corporate power. Then Justice Stevens said this:

The Framers [of our Constitution] thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues [on the Supreme Court], they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind….

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Rejection of the Citizens United decision crossed all political lines. President Obama called the decision a “strike at the heart of democracy.” John McCain, the 2008 Republican presidential candidate, put it bluntly: “What the Supreme Court did is a combination of arrogance, stupidity, and naivete, the likes of which I have never seen.” Others, including members of Congress, labeled Citizens United the worst decision since the Supreme Court ruled in the 1856 case of Dred Scott v. Sanford that African Americans could never be American citizens. A founder of the Tea Party said, Citizens United “just allows them to feed the machine. Corporations are not like people. Corporations exist forever; people don’t. Our founding fathers never wanted them; these behemoth organizations that never die. … It puts the people at a tremendous disadvantage.”

Polls confirmed that more than 75 percent of Independents, Republicans, and Democrats alike rejected the decision. People formed groups to launch a constitutional amendment campaign to overturn the decision and corporate rights, and pushed for public funding of elections, disclosure, and other reform to lessen the damage of Citizens United.

Since that January day in 2010, millions of Americans have signed petitions calling on Congress to send a constitutional amendment reversing the Court’s decision in Citizens United to the states for ratification. Many worked in their communities to enact constitutional amendment resolutions. By the beginning of 2014, constitutional amendment resolutions had passed by overwhelming margins in sixteen states and more than 500 cities and towns in every region of the country. Put on notice, more than 160 members of the House and Senate have cosponsored constitutional amendment bills.

Why this reaction? The real people are not buying the metaphors of corporations as “speakers” or “disadvantaged persons.” They do not agree that corporate and union money is simply another “voice.”

Rather, most Americans understand two fundamental truths about our Constitution and system of government that the Court got wrong: First, corporations are not entitled to the inherent, human rights that “we, the people” wrote into our Constitution. Large corporations already have far too much power in America and across the world, and requiring that we allow that power to be deployed without limit in elections and government will be the death of democracy and republican government. Second, with respect to elections and representation in government, every American, rich or poor, has the same right to speak, participate, be represented in government, and serve if their fellow citizens so desire. At election time and in governing, Americans indeed are created equal. We are citizens, not mere spectators to arguments among factions of the rich.

Senator John McCain summed it up: “[We] need a level playing field and we need to go back to the realization that Teddy Roosevelt had that we have to have a limit on the flow of money, and that corporations are not people.”