The resulting flood of corporate money into election campaigns since the court's ruling is delivered through an aqueduct known as the Super PAC (political action committee). In the wake of Citizens United, election spending by Super PACs in the 2010 midterm elections exceeded $300 million dollars, more spending than the overall spending in the previous five midterm elections combined.
Unlike donations to campaigns, which so far remain regulated, Super PAC money is spent directly by the Super PAC, and can be spent attacking as well as supporting candidates, leading to fears that corporations can exert influence on incumbents before a re-election campaigns by threatening to spend money attacking them in the upcoming election cycle.
"Corporations are human creations, state creations, legal entities ... There is no reason we cannot limit their spending," said Carlos Villarreal, executive director of the National Lawyers Guild's Bay Area chapter. "Nonprofit organizations are limited in their political spending. Churches and charitable organizations are also limited in their spending. So why not for-profit corporations?"
Perhaps no group knows more about government limits to free speech than participants of the Occupy movement. Elastic restrictions on individual free speech and freedom of association rights spelled out in the First Amendment, resting on alleged risks to health and public safety, have led to Occupy encampments across the nation being restricted and evicted, at times enforced by brutal police crackdowns.
The right of the government to restrict individual and group speech that officials believe represents a clear and present danger was established by the Supreme Court in the 1919 Schenck v United States case — the famous "don't yell fire in a crowded theater" case. What is not widely known is that this case was a re-examination of the famous 1917 Espionage Act. The "crowded theater" was our nation's entry into World War I, and those being jailed for "yelling fire" were labor organizers and pacifists expressing their opposition to our entry into the war.
Relying on Schenck, courts have consistently defended restrictions on individual free speech when there is a compelling interest to public safety, the so-called "clear and present danger" standard. Villarreal and the crowd gathered before the Ninth Circuit asserted that corporate influence in our democratic processes represents a clear and present danger to society. "There is no more compelling interest than protecting democracy," said Villarreal.
Despite the apparent double standard, legal experts say the courts action in the Citizens United case leaves a constitutional amendment as the only avenue left for regulating corporate money in elections and ending corporate personhood, but the movement to take on that Herculean task has already begun.
U.S. Sen. Bernie Sanders (I-VT) and Rep. Ted Deutch (D-FL) have introduced legislation proposing a 28th Amendment to the Constitution. While the language differs from another amendment presented by the group Move to Amend, it also takes aim at ending corporate personhood.
"Two years ago, the United States Supreme Court betrayed our Constitution and those who fought to ensure that its protections are enjoyed equally by all persons regardless of religion, race or gender, by engaging in an unabashed power-grab on behalf of corporate America," Sanders wrote in a Jan. 20 Guardian(UK) column.
In Sanders' home state of Vermont, the state Senate is also considering a resolution calling for a constitutional amendment against corporate personhood. A similar resolution, authored by Alix Rosenthal, was adopted by the San Francisco Democratic County Central Committee during a special meeting on Jan. 21. There was just one dissenting vote, and DCCC members say they plan to push for the state party organization to also adopt the stance.