Who Gets Access to Politicians?
To the editor:
During the 250th anniversary of the Declaration of Independence we should examine themes of the Revolution that matured into our Constitution which was crafted to protect “we the people.” One such theme, as I wrote in FCR 9/18, is the vastly under examined matter of citizenship and personhood. We, the natural citizens, human persons, are the benefactors of the Revolution and principles espoused by the Founding Fathers. The 13th, 14th, and 15th amendments reflect key principles about personhood and citizenship. Widely accepted is the 14th Amendment’s protection for former slaves and their offspring, natural citizens. A widely shared concern is that interpretations of the Amendment as applied to companies and similar organizations, artificial citizens, tilt to favor corporate interests. Courts’ decisions relevant to that tilt produced a favorable ruling for artificial citizens in the Citizens United case.
Mr. Kuhn’s response, FCR 9/25, reminds us that “Citizens United was a 1st Amendment case,” not a 14th Amendment case. Yes, it was a 1st Amendment case because of rulings that created artificial personhood/ citizenship based on the 14thAmendment.AnAI search might not always make that point, but it is well established among legal scholars and constitutional historians. Such experts explain, through a series of cases, how and why interpretations by the Supreme Court evolved so that it could rule that restrictions on corporate political spending violated big spenders’ “equal protection under the law.” An insightful critic, Ciara Torres-Spelliscy, professor of law at Stetson Law and a fellow at the Brennan Center for Justice at New York University School of Law, observed: “One of the strangest twists in American constitutional law was the moment that corporations gained personhood under the Equal Protection Clause of the Fourteenth Amendment.” “Courts continue to this day to wrestle with the basic question of who or what counts as a person with protectable rights.” “Corporations do not have coequal constitutional rights as living, breathing human citizens, but they are making claims on more rights that, until relatively recently, were only asserted by real people.”
So, Citizens United, a nonprofit organization, is an artificial citizen. Rather than merely ruling that the organization could spend political dollars, “the Supreme Court took the opportunity to entirely strike down century-old prohibitions on corporate ‘independent’ spending — money that doesn’t go directly to a candidate or party. This applied to labor unions as well. Lower courts applying the ruling extended it to invalidate almost all fundraising and spending restrictions for groups that purport to be separate from candidates, many of which are today known as ‘super PACs,’” so said Daniel I. Weiner, 1/29/2025 “Citizens United Explained” in Money in Politics. Mr. Kuhn wanted to know how the Citizens case “led to Super PACs and dark money which is really a problem in our elections in my opinion.” I agree.
Does such spending harm or help the chances of our representative democracy’s survival? A recent YouGov survey found that 76% of “we the people” think that unlimited spending by wealthy donors and corporations distort political processes and gain so much influence over elected officials that we natural citizens lose faith in democracy. That percentage breaks down this way: Republicans 68%, Independents 77%, and Democrats 84%. This political angst results from Supreme Court interpretation of the 14th Amendment’s provision that “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” Do we the people have the same access to and influence over politicians as the big spender “citizens” do? Responsible citizens worry that unlimited spending is harmful to representative democracy.