Citizens United, Public Health, and Democracy: The Supreme Court Ruling, Its Implications, and Proposed Action

Abstract

The 2010 US Supreme Court Citizens United v Federal Election Commission 130 US 876 (2010) case concerned the plans of a nonprofit organization to distribute a film about presidential candidate Hillary Clinton. The Court ruled that prohibiting corporate independent expenditures for advocacy advertising during election campaigns unconstitutionally inhibits free speech.

Corporations can now make unlimited contributions to election advocacy advertising directly from the corporate treasury. Candidates who favor public health positions may be subjected to corporate opposition advertising.

Citizen groups and legislators have proposed remedies to ameliorate the effects of the Court's ruling. The public health field needs to apply its expertise, in collaboration with others, to work to reduce the disproportionate influence of corporate political speech on health policy and democracy.

A recent ruling by the US Supreme Court in Citizen's United v Federal Election Commission (130 US 876 (2010) allows corporations to spend unlimited amounts on political advocacy advertising during election campaigns. The ruling expands corporate rights to disproportionately influence the electoral process and thus health policymakers. The effects on public health may be catastrophic. For example, corporations could spend unlimited sums for advertising against candidates who support public health positions on issues such as taxation on sugar-sweetened drinks, air quality standards, or access to reproductive services.

Corporate-related public health advocacy campaigns usually focus on a specific product, company, or industry; they require repetitive efforts against numerous targets and investments of time and money that are difficult to sustain against the resources of corporations. In the face of these limitations and the Court's ruling, public health needs to move its efforts upstream, to focus on the underlying issue: the rights of the corporation and, in particular, corporate political speech.

Public health advocates should collaborate with others trying to limit corporations' role as a distal structural influence on health and democracy. This corporate reform comprises a range of changes aimed at controlling corporations.^1,2

I examined the implications for public health stemming from the Citizen's United ruling, the Court's arguments about corporate speech and democracy, and various proposals to ameliorate the effects of the ruling. Public health should add its voice to calls for corporate reform, particularly reform of election campaign funding. Because the Citizens United ruling was recent, with rapidly unfolding subsequent events, my research drew heavily on journalistic sources. Perhaps academic research will eventually clarify some of the issues raised.

PUBLIC HEALTH AND CORPORATIONS

Public health has a long history of research, advocacy, and policy related to health risks from corporate products and practices. Public health has focused on the tobacco industry,³ the pharmaceutical industry,⁴ firearms manufacturers and sellers,^5,6 the alcohol industry,⁷ the food and agriculture industry,^8,9 the lead industry,¹⁰ motor vehicle manufacturers,¹¹ and others, as well as the deceptive strategies of corporations.¹²

The American Public Health Association has official policies related to corporate products and practices to guide research, advocacy, and programs. Examples of policies posted on the association's Web site (http://www.apha.org) concern asbestos (policy 20096), toxic chemicals (policy 20077), safety and effectiveness of drugs (policy 20613), food products and antibiotics (policy 2004–13), infant formula (200714), silica (policy 9512), tobacco and alcohol advertising (policy 1992–9213), and food advertising directed at children (policy 20317). The association's Trade and Health Forum and its occupational health and safety, medical care, and international health sections address corporate-related health issues such as trade policies, worker rights, occupational safety, and access to pharmaceuticals. The Citizens United decision may turn out to be a pivotal point in the ability of public health to address such concerns.

THE CITIZENS UNITED CASE

Citizens United, a nonprofit corporation that received some funding from for-profit corporations, released a film about 2008 presidential candidate Hillary Clinton that it considered to be a documentary, although it was critical of the senator. Citizens United wanted to broadcast the film on a video-on-demand channel within 30 days of the primary election and wanted to advertise the film on broadcast and cable stations. Federal election laws prohibited communications funded from a corporate treasury that advocated for or against a candidate during that time period.

Believing that sections of the federal elections campaign laws were unconstitutionally applied to the film, Citizens United filed a suit against the Federal Elections Commission that went to the US Supreme Court. Interest in the case was keen prior to oral arguments: the Supreme Court received 53 amicus briefs for the case, totaling 2000 pages.¹³ On January 21, 2010, the Court announced its split (5–4) ruling,¹⁴ agreeing with a lower court position that the film advocated voting against Senator Clinton but ruling that laws that prohibit campaign independent expenditures (advocacy for or against a candidate's election that is not coordinated with the candidate or the candidate's party or agents¹⁵) by corporations constitute a ban on free speech. Before Citizens United, only certain nonprofit corporations that did not accept corporate or labor contributions could use independent expenditures for or against candidates.

The ruling allows corporations and labor unions to expend funds directly from their general treasury for advocacy advertising for or against candidates for federal office. The Court did not distinguish between political speech via different communications media. The Court overruled an earlier decision (Austin v Michigan State Chamber of Commerce, 494 US 652 [1990]) that restricted corporations’ independent expenditures, but other Court rulings were unchanged.¹⁶ The ruling invalidated portions of the Bipartisan Campaign Reform Act of 2002 (known as the McCain–Feingold Act). The Court neither eliminated nor expanded the limitations on corporations’ contributions to a candidate's election campaign fund or the prohibitions on corporate coordination with a candidate's campaign, and upheld earlier rulings on Federal Election Commission requirements for disclosure and disclaimers (the name and address of the organization that funded an advertisement, whether the advertisement was authorized by the candidate or the candidate's political committee or agent, and who was responsible for the content).

PUBLIC HEALTH AND CITIZENS UNITED

Concerns about the disproportionate influence of corporate wealth on elections apply equally to support of or opposition to public health measures and to candidates across the political spectrum. The ruling could exacerbate—or create new—challenges for public health through more election campaign funding, front groups, political appointments of corporate officials or lobbyists to government positions (“revolving door”), and research or program funding streams.

The Citizens United decision may inhibit or influence individuals campaigning for political office because of corporate pressure applied through advocacy advertising for or against them or promotion of positions during the critical weeks just prior to an election. Candidates who might otherwise publicly espouse a public health position on personal health risks, environmental hazards, or occupational safety issues could choose to remain silent or align themselves with corporations that oppose health protections. A candidate could be particularly vulnerable if an industry within the candidate's district is responsible for a health hazard and the candidate supports public health measures. Incumbents’ voting records could make them especially vulnerable.

Although not all corporations or industries oppose public health measures or candidates who favor public health positions, Citizens United expands the means for them to exert such influence. Tobacco industry documents show that the industry's campaign contributions influenced individual legislators to be more favorable toward their industry.^17,18 Corporate contributions to elections could similarly influence proposed or existing health policies concerning restrictions on taxation of unhealthful foods and beverages; advertising of unhealthful products such as sugar-sweetened drinks, high-fat foods, or alcohol to children or vulnerable communities; requirements for restaurant menu labeling; or issues of reproductive rights, air quality standards, global climate change, comprehensive school health education, worker health and safety, gun show background checks, and others.

Expanded corporate campaign advertisement funding could exert greater influence on government research funding streams. In the past political pressure was used to try to end funding for the Centers for Disease Control and Prevention's National Center for Injury Prevention and Control to stop its firearm-related injury research.¹⁹ The tobacco industry tried to stop federal funding for tobacco policy research.²⁰ Increased corporate election campaign funding could also lead to public health advocacy groups competing for corporate financial contributions and to conflicts of interest and co-optation of public health organizations.

Expanded corporate campaign advertising funding could increase pressure on candidates to make political appointments of corporate or industry officials or lobbyists to decision-making positions in regulatory agencies, advisory boards, or committees, with authority over their own industry and with consequences for health.^4,8 For example, a corporate vice president, a member of a family that contributes to political causes, received a 2004 presidential appointment to the Cancer Advisory Board of the National Cancer Institute.^21,22 One of the family's companies produces formaldehyde and lobbied against its classification as a carcinogen by a federal agency.²²

Debates about public issues can be influenced during election campaigns by corporate contributions to front groups, which purport to take one position but actually have a different agenda not apparent from their name.²³ The Coalition to Protect Patient's Rights opposed the health care reform legislation of 2010.²⁴ These groups may be nonprofit 501(c)(4) social welfare or 501(c)(6) business league organizations under Internal Revenue Service regulations; these classifications differ in permissible political activities and reporting requirements. Since Citizens United, front groups have proliferated, and they played a large role in the 2010 election campaign. Contributions to such groups are growing, with much of the money coming from corporations; there is little federal agency oversight,²⁵ and fewer groups are reporting donor's identities than in past elections.²⁶

Corporate campaign contributions related to the health insurance reform debate of 2009 to 2010 illustrated some types of corporate influence on health policy (see the box on this page). Corporate campaign contributions targeted members of Congress who had direct influence over health care legislation, and health industries may have received special consideration of their positions and access to policymakers.^33,34

Corporate Campaign Contributions Related to US Health Care Reform Debate, 2009–2010

During the 111th Congress's 2010 election cycle (as of October 2009), the health care industry sector was the third largest contributor to members of the Senate Finance Committee (whose bill served as the basis for the new law): political action committees gave $7 832 512 and individuals gave $6 643 626.²⁷

From 2005 to 2010, the chairman of the Finance Committee (at the time bill became law) received $390 500 from health professions political action committees.²⁸

During the 2008 election cycle, the president received $18–$20 million from the health care industry, including more than $700 000 from the insurance industry.^29,30

House of Representative opponents of the reform bill received 15% more in contributions from the health and insurance industries during the past 20 years than did supporters.³¹

Pharmaceutical manufacturer's organization contributed $2 553 986 to the 2 major parties and their candidates in federal and state campaigns.³²

DEMOCRACY AND CITIZENS UNITED

Public health policy is founded on the role of government in protecting and promoting the health of the population when individuals acting alone cannot.³⁵ At issue here is whether the electoral process primarily represents citizens or corporations and therefore whether government will give precedence to public health or corporate interests. Comparison of the Court's arguments about corporate influence on democratic processes with information about citizens’ influence is pertinent to public health.

Burdensome Election Campaign Regulations

The Court's position in Citizens United is that the Federal Election Commission's regulations on advocacy and their enforcement, particularly regarding political action committees (PACs), were so burdensome, expensive, and restrictive as to restrain corporate political speech and that limiting corporate political speech to PACs was a ban on speech. A PAC is an organization set up by, but separate from, an organization (e.g., a corporation or labor union) to collect money to distribute to election campaigns.

Corporate PACs—a specific type of PAC with separate, segregated funds—can only solicit contributions from individuals associated with the corporation, such as officers, employees, and stockholders. The corporation must file with the Federal Election Commission within 10 days after setting up the PAC, and the group must have a separate account and a treasurer. Limitations on fundraising and types of expenditures, as well as record-keeping and reporting requirements, apply. By contrast to the effect of Citizens United, the regulations governing PACs restrain the disproportionate influence of corporations because contributions are limited to $5000 per candidate per election, $15 000 annually to a national party committee, and $5000 annually to another PAC.³⁶

Silencing Voices

The Court expressed concern that under previous rulings the government could silence particular voices and that the government should not be able to determine which speakers are worthy. The Court emphasized that the right of citizens to speak is a precondition to, and a necessity of, self-government, particularly in political campaigns. The corporation's role in democratic processes flows from the constitutional rights that persons hold; these rights have been extended to corporations over the past 100 years³⁷ (see the box on the next page). The Court's rationale was that despite not being “natural persons,” corporations are associations of citizens entitled to First Amendment rights.

Rights of Corporations

Commercial and political speech

Unlimited life span

Sue and be sued

Own other corporations and property

Diversified mission and products

Integrate with other corporations

Limited liability for shareholders, board, and management

Right to initiate and sign contracts

The Court thus ignored historical analyses of some Supreme Court cases, particularly Santa Clara County v Southern Pacific Railway 118 US 394 (1886), sometimes cited as the source decision giving corporations personhood.^37–39 The analysis of Santa Clara showed that later courts’ presumption that corporations have personhood rights misapplied the Santa Clara Court's reporter's notes, which carry no legal authority, but which stated that corporations are persons. In Santa Clara, the Court did not rule on, hear arguments for, or discuss the issue of corporate personhood. The reporter's statement may have been based on a railroad employee's fraudulent testimony in another case, the influence of a justice with ties to railroads, or the reporter's own connections to railroad companies.

MONEY AND POLITICAL INFLUENCE

Scholars and politicians disagree about the effects of money on elections and on the votes of elected officials, and about the likely effects of the Citizens United decision. However, some analysts and elected officials called the Court's decision “disastrous,” “radical,” and “lawless” in publicly denouncing the ruling, predicting it would open the flood gates of corporate (and even foreign corporate) influence on elections.^40–42 Although public opinion polls can be subject to methodological issues and biases, if they are conducted by independent organizations with rigorous methods and full reporting, they can provide timely information about issues. A poll taken shortly after the Citizens United ruling found that 80% of respondents disagreed with the Court.^43,44

Effects on Campaign Spending

Some concerns about the Court's decision are related to the large amounts of money required for political campaigns, particularly for television advertising, which could enable large corporate contributions to disproportionately influence the outcome.

In the 2008 federal election cycle, the average cost to win a US Senate campaign was more than $8.5 million dollars and to win a House campaign, $1.4 million.⁴⁵ A candidate seeking a Senate seat needed to raise more than $23 000 every day for a year (or to retain that seat, $3881 each day of a 6-year Senate term). A candidate for the House of Representatives needed to raise almost $4000 each day for a year (for reelection, $1880 each day over a 2-year House term).

In 2000, the television industry sold 1.2 million political advertisements for $771 million in sales in the top 75 media markets.⁴⁶ During the 2008 election year, spending by candidates and interest groups on media reached $2.8 billion: approximately $2 billion on local broadcast television, $400 million for radio and local cable, and $200 million for national cable and networks.⁴⁷ During the week of September 28 to October 4, 2008, the campaigns of presidential candidates Barack Obama and John McCain spent $28 million on television advertisements, approximately $10 million more than the 2 top candidates spent in the same period of the 2004 presidential campaign.⁴⁸

The Court said its ruling applied to labor unions and that the imbalance between the wealth of corporations and labor unions was irrelevant. If the entire US labor movement spent all of its assets on a campaign, however, it would not equal 0.10% of the assets of the 4 largest banks in the United States.⁴⁹ Some research showed that business PAC contributions influenced congressional roll call voting patterns but that labor's did not.⁵⁰ Business PACs outspend labor PACs 4 to 1.⁵¹

Effects on the Political Process

The Court rejected the argument that financial contributions to candidates have a corrupting influence or create a perception of corruption, with contributors receiving a quid pro quo of favorable votes. Corporate contributions may go only to those whose position or philosophy already aligns with the corporation's, and corporations sometimes contribute about equally to the major political parties. But at least 1 study showed that tobacco industry campaign contributions influenced legislators.¹⁷

The Court argued that an appearance of corporate influence and access would not cause the electorate to lose faith in democracy. Although public opinion polls need to be interpreted cautiously, recent surveys found that a large majority of respondents believed Congress is dysfunctional, corrupt, and selfish⁵²; few wanted current members of Congress reelected; and a large majority thought that Congress is more interested in serving special interests than the electorate.⁵³

The Court's majority also contended that corporate contributions would not result in a decrease in the electorate's participation in the democratic process. Justice John Paul Stevens's dissenting opinion argued that corporate advertising could lead citizens to lose faith in their ability to influence policy and decrease participation. Until the 2008 election, voter participation had generally declined from 1960 to 2004.⁵⁴ Owners and managers of the largest US corporations are among the small proportion of the population in which wealth is concentrated; they exert the most powerful political and foreign policy influence.⁵⁵ Hypothetically, an expansion of such influence under Citizens United could exacerbate voters’ feelings of powerlessness and lead to a less mobilized,⁵⁶ more passive and demoralized⁵⁷ citizenry.

Corporate Power and Influence

Recent polls showed that 86% of respondents believed that big companies have too much power and influence in Washington.⁵⁸ A large majority thought that corporations don't balance profit with public interest, and the proportion who believed too much power is concentrated in corporations was larger than in previous surveys.⁵⁹ The power corporations exert on democratic processes through various tactics, including political campaign contributions and lobbying, has been shown to influence health and health policy.⁶⁰ A large majority of respondents recently told pollsters that the amount corporations can contribute to election campaigns should be limited, that they should obtain shareholder approval to support candidates, that Congress has done too little to regulate corporations, and that Congress should be able to limit the amount corporations can contribute to elections.⁶¹

Reports of effects of the Citizens United ruling came swiftly. Target contributed to the election campaign of a candidate with a history of antigay positions.⁶² News Corporation, parent of Fox News and the Wall Street Journal, contributed $1 million to a governors association's election campaign fund.⁶³ The US Chamber of Commerce, a group funded by business, used contributions to try to defeat members of Congress who supported health care reform.⁶⁴ The amount of independent expenditures on election campaigns increased.⁶⁵

PUBLIC HEALTH AND AMELIORATING CITIZENS UNITED

The Citizens United decision galvanized citizens groups and some members of Congress to try to ameliorate the ruling's expansion of corporate financial influence on election campaigns. Congresspersons and organizations such as Move to Amend, Free Speech for People, and Public Citizen's Don't Get Rolled are advocating a range of strategies to redress the effects of the Citizens United ruling (see the box on this page).^51,66–70 Corporate funding of election campaigns and corporate lobbying are major obstacles to the passage of any of the proposals.

Proposed Actions to Ameliorate the Effects of the Citizens United Ruling

Add a 28th amendment to the US Constitution establishing that corporations are not persons and do not have the rights of human beings. Proposed amendments generally include clauses such as “a corporation shall not be considered to be a person,” and “corporations are not permitted to raise or spend money on federal, state, or local elections.”

Require shareholders to approve political spending by their corporations.

Pass the Fair Elections Now Act, which would create a voluntary public financing system for congressional elections in which candidates would qualify for federal matching funds ($4/$1 donated) by raising a large number of small donations (≤ $100) from individuals in their community.

Give qualified candidates equal amounts of free broadcast air time for political messages.

Ban political advertising by corporations that receive government money, hire lobbyists, or collect most of their revenue abroad.

Impose an excise tax on corporations’ contributions to political committees and their expenditures on political advocacy.

Prohibit companies that make political contributions and expenditures from trading their stock on national exchanges.

Require corporations to disclose money used to influence public opinion (other than product promotions) in their required filings with the Securities and Exchange Commission.

Require the chief executive officer of a corporation that pays for a political commercial to appear as the sponsor.

Limit the election-related spending of foreign-owned corporations and corporations with federal contracts.

Require companies to inform shareholders about political spending.

Require corporations, unions, and advocacy groups to have designated accounts for political activities.

Tighten rules against coordination between political campaigns and other groups (e.g., prohibit hiring the same advertising firms or consultants).

Strengthen Federal Election Commission regulations to increase transparency and disclosure.

A constitutional amendment that eliminates corporate political speech or personhood would address the most fundamental level of the issue, but amending the Constitution is a lengthy and difficult process, and few proposed amendments have been enacted. Funding election campaigns entirely through public money would decrease candidates’ dependence on corporate funding, and free broadcast, cable, and Internet advertising for qualified candidates could reduce the size of the campaign chests successful politicians now require. At the time of writing, some of the legislative proposals shown in the box on this page, such as the Fair Elections Now Act (S 752; HR 6116) and the Democracy Is Strengthened by Casting Light on Spending in Elections Act (HR 5175; S 3628), were under consideration by Congress.

The field of public health has a role in corporate reform efforts, including election campaign finance reform. A primary preventive focus on the corporation as a fundamental distal factor in health is consistent with the public health code of ethics.⁷¹ Some public health professionals have emphasized public health research and advocacy related to disease-promoting corporate products.⁷² Viewing the corporation as an institution⁷³ that uses a repertoire of tactics⁷⁴ to influence health and policy broadens the scope of public health to include working toward election campaign finance reform.

Public health professionals have expertise regarding the health effects of corporate products and operations and are skilled in policy development, advocacy, and coalition building. Public health practitioners can use this expertise to collaborate with other organizations around the globe⁷⁵ through a variety of methods⁷⁶ to reform corporations and related economic policies. The influence of global trade policy⁷⁷ and the growing number of transnational corporations⁷⁸ illustrate the challenge and underscore the need for such coordinated efforts. In the United States, public health professionals can use their advocacy and coalition-building skills to work with other organizations toward passage of the proposals in the box on the previous page and of democratic measures at the local level^79,80 that will protect public health.

Public health researchers could examine whether election campaign contributions influence votes by members of Congress on positions taken by the American Public Health Association.⁸¹ Research is needed on the influence of campaign contributions to elected judges who rule on environmental laws and regulations, worker safety, and health. The influence of lobbying, the revolving door between industry and government, and front groups on legislation, regulations, public opinion, and voting patterns also warrant study.

Corporate political speech directed against the interests of public health may be the most important challenge the field of public health faces. The citizenry that public health serves—and many elected officials—want reform of corporate influence on elections. To remain a viable endeavor with hope of having a significant influence on the health of the public, the profession must respond. Citizens United is a call for public health to refocus its efforts on fundamental reform of the corporation, particularly corporations’ right to political speech.