Citizens United and the Culture of Corporate Deference
April 19, 2010
Editor’s note: This article was originally posted as a comment made in response to Neal Rechtman’s “Citizens United Against the Supreme Court”
One of the subtle harms of Citizens United is the propensity it creates to doubt that we’re receiving honest services from government officials. To give a recent example, last week the President reversed course on offshore drilling, announcing a very wide-reaching oil drilling expansion off the Atlantic, Gulf, and northern Pacific coasts. Now, it is entirely possible and quite likely that he’s reversed like this because of legislative or practical concerns, or maybe he’s become convinced that the process is better served by an early concession of this point, or maybe he has actually changed his mind on the merits of the policy. Or perhaps he’s anticipating the usual summertime gas price spike and is hoping to blunt the criticisms that are sure to come by taking a prophylactic step that conservatives have loudly touted as a way to lower prices.
But perhaps the reason is that we have an election in November that’s expected to cost around $3.7 billion, and that figure is less than 1/5th of Exxon-Mobils net annual profit in their WORST year of the last 7. If the oil industry wanted to heavily invest in this cycle, they have more than enough money to go beyond simple advertising–they could fund parallel field campaigns, massive ad buys in every media, billboards around the country, and make every long-shot pro-drilling candidate into a bona-fide contender.
(Editor: For another example of corporate funds potentially influencing governmental decision making, see our interview with Vermont gubernatorial candidate Matt Dunne about the controversy over the Vermont Yankee nuclear plant).
The potential for a 19 billion-pound bull to rampage through the china shop of our elections over a single issue that directly affects their long-term bottom line ought to weigh on any halfway competent politician’s mind. Think of it as an electoral version of a “heckler’s veto”: no matter the merits of the policy at issue, if the subject is thoroughly taboo because of the outsized interests of the relevant corporations, the subject won’t be broached or will only move in one direction.
The Court seems to feel that such an outcome is compelled by Constitutional language. Regardless of whether or not that decision stands up on the merits, on the basis of its policy outcomes I think it’s incredibly damaging to good and responsive government. Corrective amendments are almost as old as the nation itself (the 11th Amendment, the first amendment ratified after the Bill of Rights, was itself a corrective amendment, overruling the Court’s holding in Chisholm v. Georgia). I think we’ve certainly reached a point where another corrective amendment is warranted, and this one definitely has to beat the clock before the culture of corporate deference becomes so enmeshed in Congress as to be ultimately impossible to extract.
Jerald Lentini is a student at Georgetown University Law Center