Citizens United: a first anniversary update
By Bill Wiist
Little more than a year after the January 21, 2010 ruling by the U.S. Supreme Court in the Citizens United v Federal Elections Commission, it is already apparent that the effects of the ruling are widespread, contaminate the democratic processes, and could be long-lasting. Because the effects of the ruling on the 2010 election campaign were significant, the potential effects on public health could be pervasive. Finding new ways to undo its pernicious consequences is an important public health goal.
The Citizens United ruling overthrew previous laws and court rulings ranging from the early 1900’s to parts of the 2002 Bipartisan Campaign Reform Act, sometimes known as the McCain-Feingold law. The Court ruled that previous laws and regulations were so restrictive as to prohibit free speech. The ruling gave corporations the right to use unlimited amounts of money directly from the corporation’s treasury for independent election campaign advocacy. The results of the decision were immediately revealed in the November 2010 mid-term U.S. Congressional election campaign and its aftermath.
The Relevance of the Court’s Ruling to Public Health
Corporate wealth gives companies the special ability to develop and test communications that frame issues, appeal to emotions, provide inaccurate and incomplete information, and increase the cognitive availability of ideas. This allows them to take advantage of voters’ decision-making vulnerabilities. Thus, corporate campaign election funds could be directed into tailored messages for or against candidates who take positions on a variety of public health issues ranging from abortion, coal-fired power plants, menu labeling, and worker health, to budget appropriations and other aspects of health that are vulnerable to market forces. Corporate lobbyists could pressure elected officials based on their contributions to the official’s campaign as a means of gaining legislative favors. Donations from insurance and pharmaceutical corporations in the 2008 election cycle seem to have gained them access and influence during health care financing reform. After the 2010 election Representative Issa (R-Calif.), chair of the House Oversight and Government Affairs Committee, reportedly asked 150 trade associations, corporations and think tanks to provide a wish list of public health, environmental and other public protections they wanted eliminated. The Court’s ruling in Citizens United has raised concerns about the government’s ability to regulate the commercial speech of tobacco and other corporations in advertising their products.
Follow the money
More money ($4 billion) was spent on the 2010 congressional elections by political parties and outside groups than in any previous midterm election cycle. According to reports by Public Citizen, in the 2010 election independent organizations that were the direct beneficiaries of corporate largess after the Citizens United ruling increased spending more than 400% over the 2006 mid-term election. About 54% of them disclosed anything about their sources. The groups that did not disclose information about sources spent 46% of the total $294 million spent by outside organizations on the election. In 60 of the 75 Congressional elections in which the seat was won by a candidate from a party different than the incumbent, the spending by outside organizations favored the winner. In the Senate election, winners had a 7-to-1 advantage in spending by outside organizations. The corporate funding ties and the political expenditures of some of the most influential of the independent organizations are known.
Campaign finance and disclosure laws in more than 24 states have been invalidated. The Citizens United ruling may have set a precedent to find that the public accommodations section of the 1964 Civil Rights Act is unconstitutional because it prevents businesses from freely expressing themselves in a discriminatory manner. The Supreme Court considered a case in which AT&T requested a privacy exemption to government release of its records but the Court rejected a corporate right to personal privacy. A bill was introduced in Congress that would eliminate public funding of the presidential campaign. Several individuals tried to appropriate the Court’s ruling for personal reasons, including former U.S. House of Representative’s Majority Leader, Tom Delay in his appeal of his conviction for money laundering and conspiracy. Someone else announced that they want to marry a corporation.
Activities to Redress the Ruling
There are a variety of legislative options to redress the effects of the Court’s ruling. The Fair Elections Now Act with 160 co-sponsors in the House and 35 in the Senate would have provided federal election campaign funding on a four to one match to candidates who raised small donations of $100 or less. The Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE) includes requirements that corporate CEOs take responsibility and inform investors. Both the Fair Elections and DISCLOSE acts had strong support in both houses of the 111th session of Congress but did not pass, due in part to a Senate filibuster. Another bill was introduced for a constitutional amendment to enable Congress to regulate corporate expenditures for political speech. Eight Senators and 40 Representatives have endorsed a constitutional amendment. Other legislation would require permission from a majority of stockholders of advance notice. Bills considered in the 2010 Congressional session will have to be reintroduced in the current (2011) session.
At least 16 states have passed laws with a variety of responses to Citizens United such as mandating disclosure of funding sources and prohibiting foreign contributions. Seven state legislatures have introduced resolutions calling for a constitutional amendment to redress the Court’s ruling. The City of Pittsburgh passed an ordinance that denied corporations the right of personhood and affirmed the rights of nature. A group of over 50 former federal and state attorneys general and law professors sent a letter to the Senate and House opposing the Court’s decision and calling for a constitutional amendment.
Organizations that advocate for a constitutional amendment to deny corporations personhood or to remove their right of political speech include Public Citizen, Move to Amend, Free Speech for People, the Progressive Democrats of America, the Coffee Part, and others. The broad support for such a change is suggested by the strategy development conference held in 2010 by the Network of Spiritual Progressives and their proposed personhood and environmental responsibility constitutional amendment. Business for Democracy supports a constitutional amendment to prohibit corporate campaign funding but which would not ban corporate political speech. By August after the Court’s ruling 400,000 people had already signed a petition supporting a constitutional amendment.
Common Cause asked the U.S. Justice Department to investigate possible conflict of interest by Supreme Court Justices Clarence Thomas and Antonio Scalia because of their possible connection to election campaign contributors while the Citizens United case was before the Court. More than three-fourths of U.S. citizens disagreed with the Court’s ruling, believe that congress should take action to curb the effects of the Citizens United ruling, and favor reinstating spending limits; positions that cross political party affiliation. The first anniversary of the Court’s ruling saw more than 100 protest demonstrations and rallies across the U.S.
What Public Health Professionals Can Do
Public health professionals must first recognize that on almost every health issue corporations are the opposition, ranging from issues of health behaviors, environmental or occupational health, access to safe and inexpensive medications, to healthcare. Rather than focusing advocacy efforts on a specific product, practice, policy, or on a specific corporation or industry, public health efforts might be more efficient in addressing the underlying, common factor: the rights given to corporations that allow them their influence and power over democratic processes, and thereby influence over public health policy and funding. The American Public Health Association (APHA) could pass related policies, educate members about the issue, and organize advocacy activities with its state affiliates in collaboration with outside organizations that have the similar aim of corporate reform. It is likely that only effective action by a larger, strong and coordinated grass roots movement will be able to counter corporate money and influence.
Academic public health programs need to conduct research on corporate influences and incorporate the study of corporate influence into curricula. Research is needed on the influence of corporate election campaign contributions and lobbying on the positions elected representatives take on public health policy issues. Research is also needed about the influence of the “revolving door” on government agency regulations and standards, and on monitoring and enforcement.
More academic curricula could include courses such as those at CUNY Hunter College and Northern Arizona University that focus on or integrate corporate influences on health. Public health curricula must help students understand the pervasive and fundamental influence of corporations on public health and democracy. Graduates must be prepared to conduct research, health policy development, and advocacy campaigns that will take back democracy from corporations and protect and promote the health of the public.
Note: An analysis of the Citizens United decision by Bill Wiist that will appear in a forthcoming issue of the American Journal of Public Health can be found in First Look.
This article is reproduced with permission from Corporations and Health Watch.
William H. Wiist is a Professor in the Department of Health Sciences at Northern Arizona University, and is a Senior Scientist in the Interdisciplinary Health Policy Institute. He is also a Clinical Professor of Public Health Practice at the University of Massachusetts, Amherst. Wiist is editor of The Bottom Line or Public Health: Tactics Corporations Use to Influence Health and Health Policy, and What We Can Do to Counter Them.