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Court’s PAC ruling causes concern

February 14, 2012
By Richard Clark , Daily Press

ESCANABA - "Congress shall make no law...abridging the freedom of speech, or of the press..." U.S. Constitution, First Amendment.

A friend I visited last weekend expressed deep concern over the U.S. Supreme Court's decision handed down two years ago in Citizens United v Federal Election Commission. The Republican primaries support his concern. Super PACs flood money for their favorite candidate in the days before the voting/caucus/straw poll day. The tactic has been successful.

The justices on the Supreme Court wrote over 150 pages of opinion in Citizens United. The majority reversed 100 years of legal precedent and tossed out McCain-Feingold, formally known as the Bipartisan Campaign Reform Act of 2002. The law said that unions and corporations could not spend general funds advocating for a candidate or issue. In a stunning reversal of past decisions the court's majority used the First Amendment to void the law.

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Richard Clark

Before Citizens United changed the law corporate and union general funds could not be used to directly to advocate for or against a candidate or a ballot issues within 60 days of a general election and 30 days of a primary election. Citizens led to the creation of Super PACs, groups that collect money from any source.

PACs, Super and otherwise, can have nice names like Save Our Air and be funded by industries that pollute the skies with all forms of toxins. Marxists could form a PAC and call it Americans for Private Enterprise.

While the Super PACs are supposed to be independent from any candidate, the relationship is a wink-wink-nod-nod relationship. Mitt Romney's former top aid formed Super PACs in primary states with names like "Jobs for Florida." Last week President Obama's campaign softened its objection to support from Super PACs.

The upshot of Citizens is that candidates will need to monkey dance to the tune of the PACs. Lobbyists and influence peddlers can form PACs to threaten candidates and office holders that if they don't behave the Super PAC will be brought to bear during the next campaign.

For those who would like to have officer holders beholden to voters and not corporate sponsors or special interests, Citizens unleashed a nightmare. Super PACs are popping up like zombies in the "Night of the Living Dead."

In Citizens Justice John Paul Stephens, appointed to the federal court of appeals by President Nixon and to the Supreme Court by President Ford, led four justices in dissent. In essence, Justice Stephens wrote that the the First Amendment's was intended to protect the speech of people, as in human beings, not corporations. Media companies are specifically protected by the amendment under "the press" provision.

Corporations are a creation of the state. Laws protect groups by limiting business liability to their investment in an enterprise, a corporation. A sole proprietor remains responsible for all obligations of a business. A stockholder only risks the price of the stock. By limiting liability business investment is encouraged. A corporation's primary purpose is to make money.

Humans have an expiration date. We might last for a little over 100 hundred years, but we definitely expire. Corporations do not have an expiration date. By design corporations can amass large sums of cash. Six months ago Apple possessed $76 billion in cash. What could Apple do with 10 percent of its cash?

In 1907 President Teddy Roosevelt said, "All contributions by corporations to any political committee or for any political purpose should be forbidden by law." Super PACs and corporate spending crowd out the voices of people.

Justice Stephens observed that the only change between Supreme Court decisions that approved of McCain-Feingold and Citizens was the make up of the court. A change in Citizens will require a change in the Constitution or a change in the make up of the court.

Last month the Montana Supreme Court upheld its campaign finance law. The decision was a rebuke of Citizens. Where the U.S. Supreme Court majority could find no link between corruption and corporate campaign spending the Montana court noted several examples.

The Preamble to the Constitution says that "We the People..." establish the Constitution to secure the benefits and " the Blessings of Liberty to ourselves and our Posterity..." Nary a reference to corporations.


EDITOR'S NOTE - Richard Clark, Escanaba, practices personal injury law throughout the Upper Peninsula. He can be reached at



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