Now that we have suffered through our first post-Citizens United election, it is time for critics of the Supreme Court's decision to admit we got it wrong. The impact has been far greater and far worse than we anticipated.
On the one-year anniversary of this dreadful decision, it's plain that the theory and practice of Citizens United v. Federal Election Commission are incompatible with a well-functioning democracy.
In the case, a 5-4 majority of the Supreme Court held that corporations could spend unlimited amounts from their general treasuries to influence election outcomes.
We need a constitutional amendment to overturn this decision and clarify that corporations do not have a right to overrun our democracy.
The Supreme Court's decision rested on two key flawed premises. First, the court held that for-profit corporations are entitled to the same First Amendment protections, including in the core area of election-related speech, as real, live human beings.
Although the majority waxed eloquently on the importance of the First Amendment in protecting the expressive rights of disfavored persons, they "elided" the obvious point that corporations are not people, as Justice John Paul Stevens noted in his stinging dissent.
While they are staffed, managed and owned by real people, corporations are separate legal entities from the people who make them up. For-profit corporations possess features that distinguish them from humans, giving them enormous ability to influence politics, but leading them to operate without the richness of human motivations and concerns. Corporations have perpetual life, they have no conscience, they can't be imprisoned, they are driven by a single objective - pursuit of profit - and they agglomerate unparalleled amounts of wealth.
That second key premise of the decision was that corporate spending on elections - as long as it is not coordinated with candidates - poses no risk of corruption or can even give rise to a perception of corruption.
If we presume that the majority made this argument in good faith, there are perhaps five people in Washington who believe it to be true. Corporations don't spend money on politics to express their inner feelings but to advance their economic agenda. They spend money precisely because they expect something in return.
Issued less than 10 months before the 2010 elections, Citizens United remade the electoral landscape. Not only did it enable corporations to write large checks to affect who would and would not be elected, it established that Wild West rules would prevail for campaign 2010.
With inadequate reporting and disclosure rules, we don't know exactly who spent what in the election. We do know that 150 organizations outside of the political parties reported spending nearly $300 million to influence federal elections, and that the actual number is much higher. Outside groups spending favored Republicans by about 2 to 1.
Most of the outside money was funneled through a small number of groups, led by the U.S. Chamber of Commerce and two Karl Rove-affiliated operations. Most of the groups were funded by a small number of corporations and superwealthy individuals. And their spending had a disproportionate influence on the election. They were able to focus their efforts in close and strategically important races. As completely unaccountable entities, they were also free to run vicious attack ads without even the reputational harm that attaches to candidates who run negative ads.
This is no way to run a democracy.
As a first and exceedingly modest step, we need robust and straightforward disclosure laws so there is complete transparency. More systemically, we need a fair election system that provides candidates with public financing so they don't need to supplicate to rich donors.
But there is no workaround for the central problem created by Citizens United. Corporations will retain the right to overwhelm elections unless Citizens United is overturned. Absent a rethink by the Supreme Court, that will require a constitutional amendment. Winning a constitutional amendment will be no easy thing, but a growing people's movement is insisting we have no choice.
Democracy is rule by the people, after all.
Weissman is president of Public Citizen, 1600 20th St. N.W., Washington, DC 20009.