Guest opinion: Court needs chance to overturn Citizens United | June 13, 2012 | Almanac | Almanac Online |


Viewpoint - June 13, 2012

Guest opinion: Court needs chance to overturn Citizens United

by Anna G. Eshoo

On June 14, the United States Supreme Court will have its first opportunity to revisit the infamous Citizens United decision, handed down in January of 2010. Since that decision and the mayhem it created, experts have pondered whether the court fully understood the ramifications of upending almost 100 years of settled law by deregulating corporate spending rules assembled during that time. Two and a half years and two election cycles later and with the benefit of hindsight, the court can no longer claim ignorance.

Thanks to a defiant Montana Supreme Court and Steve Bullock, the state's determined attorney general, the court has the opportunity to rehear and reconsider Citizens United in the case of American Tradition Partnership v. Bullock. Enacted exactly 100 years ago by ballot initiative, Montana's Corrupt Practices Act prohibits corporations from contributing to — or spending in support of — political candidates. The law rightly prevents the state's wealthy stakeholders, such as mining companies, from exercising undue influence in state elections. It was enacted in direct response to cases of political corruption tied to corporations, and until Citizens United, it protected voters.

Today, the Corrupt Practices Act is under fire by an independent nonprofit group called the American Tradition Partnership, which is seeking to overturn the state law using the cudgel of Citizens United. The American Tradition Partnership is a Washington, D.C.-based 501(c)(4) nonprofit group, meaning its funding sources are completely undisclosed and unlimited. They may include individuals, out-of-state corporations, or, for all we know, even foreign nationals seeking to influence Montana's elections. The group was so certain of victory that they moved to summarily dismantle the law. In a well-drawn and comprehensive 5-2 majority opinion, Montana's Supreme Court disagreed.

At its core, the logic behind Citizens United relies on a finding that direct corporate participation in elections does not subject voters to corruption or the appearance of corruption. If it did, Congress would be justified in imposing rules to prevent it, as it has since Teddy Roosevelt was president. Because the country is large and the system is so complex, proving that one kind of spending leads to corruption is difficult, and free-spending corporations took advantage.

In the much smaller Montana political system, the impact of such spending is indisputable. As the state's justices note in a litany of specific examples, when allowed to do so, entities from Standard Oil to Wall Street investors dominated the state's political scene, and campaign finance laws were and are vital to protect its voters.

The outcome of American Tradition Partnership v. Bullock will have a profound effect on every state with laws designed to prevent corruption and curtail corporate power. It could also present a lifeline for Congress to once again play a role in responding to egregious misbehavior in federal campaigns. Over the last two years, we've all witnessed the emergence of Super PACs, representing a perverse and staggering failure of our laws. There is a glaring need for action in a system riddled with loopholes and abuses. As senators John McCain and Sheldon Whitehouse wrote in a brief to the Supreme Court asking them to side with Montana, "the news confirms, daily, that existing campaign finance rules purporting to provide for 'independence' and 'disclosure' in fact provide neither." These were the safeguards offered by the Citizens United majority to prevent corruption and abuse, and in their absence, we desperately need a legal assessment more in line with the reality voters face every day ... a tsunami of secret money from secret donors flooding our elections.

This month, the Supreme Court will decide whether to summarily dispose of Montana's law using the Citizens United decision, or to schedule oral arguments and finally confront the system it created. The court should hear the arguments. On the eve of the most consequential presidential contest in generations, the justices and all Americans deserve to hear directly from Montana's attorney general why voters, and our elections, deserve a second chance.

Rep. Anna G. Eshoo, D-Menlo Park, represents the 14th House District in the U.S. Congress.


Posted by Harry Turner, a resident of Portola Valley: Ladera
on Jun 13, 2012 at 12:59 pm

Regarding Citizen's United - Ms Eshoo has failed to make a persuasive argument. Corruption typically involves bribery or an act that makes something morally depraved. Ms Eshoo's assigns this attribute to all corporations whether engaged in corruption or not. That is, her premise is that ALL corporations, including the all the employers of readers of the Almanac, are corrupt. She has no facts; her assertion is unverifiable.

As to the issue of funding sources, all agree emphatically that ethical political standards require the virtues of disclosure and amount promptly, completely, and with no dissembling. Ms Eshoo declared, "These were the safeguards offered by the Citizens United majority to prevent corruption and abuse." I have been disturbed observing the PAC's in non-compliance with these standards. Are they illegally "evading" them or are they lawfully, but not ethically, "avoiding" them? Ms Eshoo's argument infers that the Super PAC's are using campaign finance law loopholes to de facto evade the law.

Ms Eshoo has failed to persuade me that a rethink of Citizen's United is required to close loopholes. Her argument seems over broad, based on her distaste for it and its apparent resulting from the judges' political agendas, perhaps to satisfy her constituents. Can she tell us why legislative actions rather than judicial decisions are not sufficient? That is the realm where we expect her to demonstrate leadership and competence.

Posted by POGO, a resident of Woodside: other
on Jun 13, 2012 at 8:54 pm

It's very chic to rail against the Citizens United decision but there is another side to it.

This case was based on the Federal Election Commission rejecting Citizens United complaint that Michael Moore's Fahrenheit 9/11 film violated McCain-Feingold by being aired within 30 days of an election. Although the FEC rejected CU's complaint about Fahrenheit 9/11, they upheld a complaint about CU's (which also produced films) when it wanted to air its film Hillary: The Movie. That seemed inequitable to CU and they filed a lawsuit which the Supreme Court upheld.

Remember, that Citizens United not only gave corporations the right to make campaign contributions (and SuperPacs were always permitted to receive unlimited amounts under McCain-Feingold...), it also gave unions that same right. It's interesting to note that the largest contributors to campaigns have been unions, not corporations. And it's also interesting to note that President Obama raised twice as much money as Senator McCain - and President Obama completely dominated Wall Street. I think the real problem isn't money from corporations or unions, it's transparency and disclosure, which McCain-Feingold overlooked when it created SuperPacs.

But now that the shoe is on the other foot, people are crying foul. Totally routine hypocrisy.

Posted by Menlo Voter, a resident of Menlo Park: other
on Jun 13, 2012 at 9:58 pm

I think the underlying problem of CU is that it says corporations are the same as people. They're not. Until a corporation can be drafted or jailed they never will be. Corporations have always had limited rights in this country due to their limited responsibilities. You can't be a citizen and subject to all the rights due a citizen if you can't fulfill all obligations of a citizen. The supreme court ignored this in their decision and opened the flood gates of money which is allowing organizations to exert control that individual citizens can never do. Couple that with the fact there is a total lack of transparency and you have corporations and unions essentially buying elections. It's bad law and needs to be overturned. Of course, I'm not holding my breath.

Posted by Hmmm, a resident of another community
on Jun 13, 2012 at 10:27 pm

MV - very cogent - thank you for succinctly putting into words the same thoughts as many I've talked to about this. On another subject -are you looking forward to trying out Menlo's new steakhouse?

Posted by Menlo Voter, a resident of Menlo Park: other
on Jun 14, 2012 at 7:34 am


thank you.

Yes, I am looking forward to it. However, I've actually already tried it as there is an LB Steak in Santana Row. It's very good.

Posted by Jodes, a resident of Menlo Park: other
on Jun 14, 2012 at 9:25 am

"It's interesting to note that the largest contributors to campaigns have been unions, not corporations."

Do you have links for that, especially for 2010 forward?

Posted by POGO, a resident of Woodside: other
on Jun 14, 2012 at 3:40 pm

Web Link

This list is aggregate contributions from 1989 to 2012.

Note that only three "corporations" made the cut - AT&T, Goldman Sachs and Citigroup. But note the proliferation of unions and professional associations on this list!

And MV, contrary to popular opinion and press, the CU decision did NOT say that corporations are people. The concept of corporate personhood actually dates back to the early 1800's when the Supreme Court ruled that corporations can be sued and that they have certain constitutional protections. In the CU case, the court said that corporations - and unions - do, in fact, have the right to make political contributions on behalf of their constituents and in the interests of their organizations.

That suit came about because the FEC ruled that "Fahrenheit 9/11," an anti-Bush movie, was okay to air, but "Hillary: The Movie," an anti-Clinton film, was not. It just shows the capricious and arbitrary nature of the FEC.

Posted by POGO, a resident of Woodside: other
on Jun 14, 2012 at 3:40 pm

I meant to say that only 3 corporations made the cut IN THE TOP 20.


Posted by Jodes, a resident of Menlo Park: other
on Jun 14, 2012 at 4:30 pm

Nice link. Thanks, Pogo.

Union spending is down dramatically; a link that includes back to the 80's really hides present conditions.

I don't see the Super Pacs on it, like crossroads, gps or the US Chamber of Commerce.

They dwarf corps and unions. In fact, more corporate money goes through the chamber pac than direct.

looks like 10-1

from another part of your link


Total by Type of Spender, 2012 (so far)
Type of Group Total Spent # of Groups
Registered # of Groups
Spending to date
Super PACs: $120,786,220 597 95
Parties: $5,178,399 27 15
Others (Corporations, unions,
individual people, other groups, etc): $21,811,195 184 159


Even that looks like small potatoes compared to the Koch Bros announcing they will put in $400 million by themselves this cycle.

System is broken. Blaming it on unions is just deflection. But a good link to try and deflect with, for sure.

Posted by POGO, a resident of Woodside: other
on Jun 14, 2012 at 4:51 pm

And to your point that union campaign contributions are down, here's this data which is just the opposite.

Web Link

Of course, some prefer to refer to hard data as "deflection."

For every Koch, there is a Soros.

For every Goldman Sachs and Citigroup (who both overwhelmingly contributed to Obama in 2008), there is an SEIU, AFL-CIO, and AFSCME.

For every gun owner and pro-lifer, there is a trial lawyer, teamster and or member of NOW.

And so it goes.

In 2008, President Obama outspent Senator McCain by more than 2 to 1. Funny, I don't recall complaints about all the money in politics back then.

Posted by Menlo Voter, a resident of Menlo Park: other
on Jun 14, 2012 at 6:21 pm


corporations may have been granted "personhood" a long time ago. That doesn't mean they have all rights guaranteed citizens. That also doesn't mean they should be able to spend insane amounts of money to buy elections (not just businesses, also their union counterparts). This is something virtually no other citizen can achieve. Yes, groups can come together and pool funds to help candidates, but those organizations have traditionally had to be transparent. What we have now is total inequality and a total lack of transparency. "Money talks" has never meant more in politics than it does now after the CU decision.

Posted by registered user, Roy Thiele-Sardiña, a resident of Menlo Park: Central Menlo Park
on Jun 15, 2012 at 12:55 am

You do not have to look at the national level to see the Unions overwhelming power. In the 2010 Measure L (Pension Reform) battle, Kelly Fergusson (Menlo Park City Council) had only one financial backer....SEIU (Service International Employees Union) They spent HUNDREDS of thousands of dollars. The Menlo Park Citizens for Fair and Responsible Pension Reform, had raised less than $5000 before the Unions sued and they had to defend themselves.

The Unions backed Ms. Fergusson's Anti-Pension reform campaign with money, lawyers, and door to door workers. This Financial support did not come from corporations, it was the Labor Union that wanted to legislate and influence Menlo Park. They were defeated by a 75%/25% margin (a great win for the taxpayers) But they continue to challenge the will of the people in Court.

Ms. Fergusson and these Unions have cost Menlo Park tens of thousands of dollars in legal and administrative expenses.

So while Ms. Eshoo might love to stop CU, she has been a CONSTANT recipient of Public Union Donations.......shame on her.

Roy Thiele-Sardina
Co-Chairman - Citizens for Fair and Responsible Pension reform

Posted by POGO, a resident of Woodside: other
on Jun 15, 2012 at 9:37 am

MV -

Yes, I'm all for transparency - I noted that above.

But you'll never get money out of politics. Ever.

President Obama refused public funding because it was limiting. Every new campaign finance law - McCain-Feingold was the latest - are heralded as the answer to this problem. They never are.

But I respectfully disagree with your position that it is acceptable for a group of people to come together to contribute money to a campaign but not a corporation. A corporation IS a group of people - stockholders, owners, employees, customers. In fact, these unions and trade associations (realtors, trial lawyers, NRA, NOW, etc.) ARE, legally (as far as the CU decision is concerned), corporations and no different from Goldman Sachs or WalMart.

Posted by Menlo Voter, a resident of Menlo Park: other
on Jun 15, 2012 at 12:38 pm


yes, a corporation is a collection of people, but those people work for stock holders. The stockholders are the true owners of the corporation and therefor the only "group" that can rightfully choose what to do with the corporations money. The money doesn't belong to the workers (unless they hold some stock). Not the group of people that work for it. In that way a corporation is really a single entity. A single entity that can bring to bear enormous amounts of money if it so chooses. This is not something very many other individuals can do on their own. They have to become a group of contributors. The amount of work involved in that situation greatly increases the difficulty of raising the kind of money a corporation can bring to bear. That's why corporation and unions should not be allowed to contribute however much money they want to.

I agree money will never come out of elections, but public funding of same would go a long way to even out the paying field. It will never happen though becasue our politicians don't want it to.

Posted by JK, a resident of Menlo Park: Sharon Heights
on Jun 15, 2012 at 1:05 pm

Just in the news recently that Romney has begun to signficantly outraise Obama and that superPACS--which are predominantly Republican in terms of $--far, far outpaced everyone else.
I would welcome a re-look at CU.

Posted by Stan, a resident of Portola Valley: Los Trancos Woods/Vista Verde
on Jun 15, 2012 at 1:23 pm

As usual, Ms.Eshoo seeks to tip the political spectrum in favor of the uber liberal end of the political spectrum by limiting campaign contributions from one type of monied source (which may be more conservative) but still permitting substantially unlimited contributions from more liberal sources.

The real problem that needs to be solved is to get the obscene amount of money flows and the consequent political patronage out of politics.
Since only people vote a more radical solution that really would act to reduce all of the post election political paybacks would be to limit campaign contributions to $10 per REGISTERED VOTER to the single candidate of their choice.The contributions could be made only after the candidates' selection process (convention, etc.)had nominated their candidate ( i.e. the slate has been set).

Such a process would raise over a billion dollars assuming there were 100 million registered voters who were interested enough to actually participate. Any other campaigning could be carried out only by volunteers who actually had enough time to talk to their friends and neighbors one on one - not at $35,000 per plate dinners which apparently are designed to circumvent current campaign contribution laws.

No more prerecorded mass telephone interruptions of out dinner time or any other use of telephones or other communication sources over which the user has little ability to screen content would be permitted either.

In other words - LET'S TONE DOWN THE WHOLE ACT OF CHOOSING A LEADER. If people had to think and make choices based on serious reflection rather than having been bombarded with months of lies and mud slinging maybe the outcomes would be less divisive.

Posted by Jodes, a resident of Menlo Park: other
on Jun 15, 2012 at 2:35 pm

"Since only people vote a more radical solution that really would act to reduce all of the post election political paybacks would be to limit campaign contributions to $10 per REGISTERED VOTER to the single candidate of their choice."

You're dreaming. Free speech. Violates so many things, I don't know where to start.

You will never tone down the choice, because there is so much in it for those that buy the election - unions, corporations, zealots, etc.. Fantasy.

Posted by Ethan, a resident of Menlo Park: University Heights
on Jun 15, 2012 at 2:44 pm

It will be interesting when multinational corporations doing business here but headquartered in other countries begin playing a major role in American "political speech." It's possible that Chinese or Russian actors may try to swing a future U.S. election by laundering their political money through corporate contributions to super PACs. This could be particularly effective at the state or local level. But the more money the merrier, I guess.

Regarding the case, many legal folks have observed that the Court turned a molehill into a mountain. The Justices could have resolved it by narrowly ruling on whether McCain-Feingold applied to "Hillary: The Movie," or perhaps applied to all nonprofit organizations. (Citizens United is a nonprofit.) Instead, as Justice Stevens said in his dissent, "Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."

So it goes with the activist Roberts Court.

Posted by gunste, a resident of Portola Valley: Ladera
on Jun 15, 2012 at 5:28 pm

Corporations, businesses of all types and the US Chamber of Commerce representing many corporations weigh in with strong arguments and donations to the pertinent members of Congress to have their stand included into laws being discussed. Their success rates is very high, because virtually all elected officials are dependent on campaign contributions. Thus, the public good vs. the corporate desires for tilting the tables is very evident.
Consider the number of high profile corporate convictions for violating laws and operating counter to the public good for the benefit of their bottom line. Te financial businesses that were a major cause of the 2007-8 recession. None held to account. Businesses is not lily white, nor are all businesses dishonest. However, a rather large percentage will take advantage directly, by deceptive advertising, or other means to place their profit above complete honesty. - I see that every day, even on the Internet, where a business will sneak in additional charges at the very end, when they should disclose the full price early on.

Citizens United provides a means of influencing politicians/legislators to do what is desired by corporations because their own campaign funding is dependent on cooperation. If that is not outright corruption, it is certainly ethically and morally equivalent to it. Wall Street finances both Presidential candidates, though not evenly.

As it is, the US has been essentially governed indirectly by the plutocracy for many years. They have the means, they buy the influence, they employ the lobbyists (ex members or staff of Congress). The citizen at large has virtually no influence. You cannot even have a voice with a legislator unless you are a recognized donor. And the $100 contribution will not qualify. $5000 may get you a phone call, but seven figures will have the legislator show up in your office. - Just recall the Senator who shepherded Medicare D through Congress. He became spokesman for Big Pharma at $2 million a year - better than his Congressional salary.

The saddest aspect of all of this that both parties are guilty of these legalized corruption practices. An a Court that is tilted by ideology is very unhelpful.

Citizen United overturned precedent, something Mr Roberts promised he would respect. Seems we need another Teddy Roosevelt, because neither candidate running has the guts, the inlination or the firm belief in principle to do what is best for all the people.

Posted by Yawn, a resident of Portola Valley: other
on Jun 15, 2012 at 9:43 pm

One positive effect is that it's getting a lot of money circulating in the economy again. I don't like how the Koch bros are spending their money, but at least they're not sitting on it.

Adelson, the casino magnate, was Gingrich's money supply and has now jumped in big time with Romney. Maybe he thought he could buy a lot of control thru getting Newt elected, certainly Newt seemed the most likely candidate to unethically favor his primary supporter. But it still shocks me that rich conservatives believe they can BUY the POTUS position. "The most powerful (person) in the world" -- for sale for mere millions?

Truly sickening.

The Cons might hate Soros, but he has a consistent philosophy of supporting democracy, all over the world. And he's not trying to buy special rules that favor himself and his rich friends.

Republican conservatives and prosperity christians have the same goal:


If the process of enriching themselves increases the poverty of others, all the better: they love that huge gap between the rich and poor, and the middle class has historically been annoyingly moralizing.

Posted by POGO, a resident of Woodside: other
on Jun 16, 2012 at 8:33 am

MV - Whether the entity is a corporation, union, trade organization or just the Chamber of Commerce - groups support political issues that are in their selfish interests. That doesn't mean that EVERY PERSON in that group supports that issue. When a drug company lobbies Congress to change a regulation, they are doing it - selfishly - to further their interest. Whether the employees or shareholders or customers support that issue isn't particularly relevant - the corporation's management has determined that support furthers their corporation's economic interest. And the same is true of unions or other organizations (trial lawyers, for instance), again, regardless of an individual members concurrence.

You are correct that stockholders are the owners and the group that is ultimately responsible for that expenditure... and they do this by voting for the board of directors who select management. If enough shareholders of Citigroup object to the way that company is making political contributions, they will express it and if they are ignored, they are free to vote in a new board. If you don't believe it can ever happen, just ask the ex-board members of Yahoo.

Stan - limiting contributions to $10 per voter is simply an extension of current law, which already limits individual contributions. But besides the dubious Constitutionality of your suggestion, beware of unintended consequences. With your proposed limitation, the very richest candidates will have a significant advantage over any other candidate - they can simply fund their campaigns from their own bank accounts - and there is never a limit to that! I don't think that's what you really want!

Yawn - what breathtaking hypocrisy. Rationalizing Soros as good and Koch as bad, simply because you believe in Soros's issues ("democracy!") so you can justify them as righteous. Even Soros has admitted that he has financially benefited from his support political issues. Look at the revolutions he has supported and how he almost broke the Bank of England. But Soros is more righteous than the Kochs who support limiting government sector unions in states where they have zero financial interest? Soros and Koch, like Adelman, Kamen, Mahr, Spielberg and others, are simply opposite sides of the same coins... and all of them are equally culpable for the current political climate. Equally.

Posted by Jodes, a resident of Menlo Park: other
on Jun 16, 2012 at 9:28 am

"I don't like how the Koch bros are spending their money, but at least they're not sitting on it."

Buying government positions is good for the economy?

Posted by Norman, a resident of Menlo Park: Central Menlo Park
on Jun 16, 2012 at 11:15 am

I have yet to see proof that corporations, lets say just large ones, are nefarious, that they hurt the economy and deprive citizens of their just rewards. Where is that proof?

In terms of the unions, sure they are for their memebers but what happens on a larger scale? Two examples: The US auto industry was ruined by the unions (no doubt about it) and the teachers's unions are keeping poor kids uneducated because you can't fire them for being bad teachers. Plus public union retirement packages given to them by Democrats are obscene.

There is a better case that the unions are nefarious vs corporations being so.

Posted by Ethan, a resident of Menlo Park: University Heights
on Jun 16, 2012 at 5:05 pm

"I have yet to see proof that corporations, lets say just large ones, are nefarious, that they hurt the economy and deprive citizens of their just rewards. Where is that proof?"

For a rogue's gallery of unethical and injurious corporate practices, google Enron, Nestle, Wal-Mart, Union Carbide, Halliburton, Chevron, BP, Phillip Morris, Century International Arms, any big bank, and the entire health insurance industry. That should get you stared.

Posted by Norman, a resident of Menlo Park: Central Menlo Park
on Jun 16, 2012 at 8:21 pm

ETHAN; No, I was thinking of Apple, Intel, IBM, NCR, Hewlett Packard, Sears, K-Mart, Target, Medtronic, Merck, Pfizer, Schwinn, Kraft Foods, Sara Lee, Schwab, Ortho, John Deere, Caterpillar, Chipotle, General Motors, Honda, Weyerhauser, Borden's, Nordstrom's, Land's End, North Face, Shilling Spices, Horizon Organic Dairy, MMM, etc. These corporations and all the others have been a boon to our better existence. Without their innovations our lives are shorter and much, much harder. The Soviet Union demonized them and look what happened to those people.