James Madison-Federalist #10 and the Citizens United
James Madison
James Madison is an important and integral figure in United States History. Many of his
contributions to the country can be seen via the Constitution, where he was instrumental in the drafting of the Constitution, obtaining the moniker of “father” of the Constitution. Madison also contributed to the current makeup of House of Representatives via the Virginia Plan, where he called for a bi-cameral legislation (two chambers). Madison co-authored the Federalist Papers along with Alexander Hamilton, and John Jay. These essays called for the ratification of the Constitution. Along with co-authoring the Federalist Papers, Madison is perhaps most endeared for the authoring of the Bill of Rights, or the first ten amendments of the Constitution of the United States. Currently one can take two things authored by Madison, Federalist #10 and the First Amendment of the Constitution of the United States, and analyze the controversial Citizens United. In order to analyze Citizens United one must first look back at Federalist #10.
Published in November 22, 1787, Federalist #10 addressed the question of how to guard against the rise of factions in the United States. These factions described by Madison as “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”[1] Madison further elaborated that “the most common and durable source of factions has been the various and unequal distribution of property.”[2] Property can be defined today as wealth. Wealth is there for transferable to power. Those who are the wealthiest are the most powerful can thusly influence adversely to interests of a community.
A second way as a conduit to analyzing Citizens United is the first Amendment to the Constitution or simply known as “The First Amendment.” The First Amendment as written in the constitution is: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[3] The First Amendment perhaps is the most important piece of legislation in United States history. In evaluating Citizens United, one must look at only the “freedom of speech” element of the amendment.
The principles laid out in Federalist #10 and the First Amendment can be used to evaluate the controversial decision by the Supreme Court in the Citizens United v. Federal Election Commission. The origin of the Citizens United case can be drawn back to 2008 during the Presidential Primaries. Citizens United sought to air a scathing documentary against then Senator Hillary Clinton during the Democratic Presidential Primaries. However the documentary was blocked to air due to a provision in the McCain-Feingold Act or the Bipartisan Campaign Reform Act of 2002. The such provision that blocked the airing of the documentary is: “The proliferation of issue advocacy ads, by defining as "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by a corporation (including non-profit issue organizations such as Right to Life or the
Environmental Defense Fund) or paid for by an unincorporated entity using any corporate or union general treasury funds.” [4]
contributions to the country can be seen via the Constitution, where he was instrumental in the drafting of the Constitution, obtaining the moniker of “father” of the Constitution. Madison also contributed to the current makeup of House of Representatives via the Virginia Plan, where he called for a bi-cameral legislation (two chambers). Madison co-authored the Federalist Papers along with Alexander Hamilton, and John Jay. These essays called for the ratification of the Constitution. Along with co-authoring the Federalist Papers, Madison is perhaps most endeared for the authoring of the Bill of Rights, or the first ten amendments of the Constitution of the United States. Currently one can take two things authored by Madison, Federalist #10 and the First Amendment of the Constitution of the United States, and analyze the controversial Citizens United. In order to analyze Citizens United one must first look back at Federalist #10.
Published in November 22, 1787, Federalist #10 addressed the question of how to guard against the rise of factions in the United States. These factions described by Madison as “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”[1] Madison further elaborated that “the most common and durable source of factions has been the various and unequal distribution of property.”[2] Property can be defined today as wealth. Wealth is there for transferable to power. Those who are the wealthiest are the most powerful can thusly influence adversely to interests of a community.
A second way as a conduit to analyzing Citizens United is the first Amendment to the Constitution or simply known as “The First Amendment.” The First Amendment as written in the constitution is: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[3] The First Amendment perhaps is the most important piece of legislation in United States history. In evaluating Citizens United, one must look at only the “freedom of speech” element of the amendment.
The principles laid out in Federalist #10 and the First Amendment can be used to evaluate the controversial decision by the Supreme Court in the Citizens United v. Federal Election Commission. The origin of the Citizens United case can be drawn back to 2008 during the Presidential Primaries. Citizens United sought to air a scathing documentary against then Senator Hillary Clinton during the Democratic Presidential Primaries. However the documentary was blocked to air due to a provision in the McCain-Feingold Act or the Bipartisan Campaign Reform Act of 2002. The such provision that blocked the airing of the documentary is: “The proliferation of issue advocacy ads, by defining as "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibiting any such ad paid for by a corporation (including non-profit issue organizations such as Right to Life or the
Environmental Defense Fund) or paid for by an unincorporated entity using any corporate or union general treasury funds.” [4]
Citizens United won its case against the FEC by a split decision. Justice Kennedy’s major opinion found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The majority wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." The majority also argued that First Amendment“protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation's ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues.”[4]
Justice John Paul Stevens was joined by three others in ruling against Citizens United. In his dissent he noted that Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He wrote: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."[5] Concluding his 90 page dissent, Stevens noted: “At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws
included a dearth of corporate money in politics.[6]
With the ruling of the Supreme Court we can then return back to James Madison and Federalist #10 and the First Amendment. Madison spoke of a faction that is facilitated by the unequal distribution of property (wealth) and a group of individuals who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. With the ruling of Citizens United, corporations have become if not already more powerful than any group of individuals. Corporations with the Supreme Court decision can spend unlimited money on ads or other communications calling for the election or defeat of an individual candidate all the while being protected by the First Amendment of the Constitution. The First Amendment to the Constitution is important to this because now corporations can be defined as singular individuals where as their speech is protected under the Constitution. A question to be raised is whether or not Madison in 1789 saw that businesses and single individuals are the same, each equal, and thus can be protected against the government from infringing upon the rights laid out by the first
Amendments.
In the big picture, the ruling by the Supreme Court has unveiled the true rulers in the country, those who have the wealth, have the power. James Madison in 1817 wrote in his Detached Memoranda: “There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by…corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of
abuse.”[7] Madison saw 195 years ago the growing influences that corporations can have in the country and the subsequent abuses that can arise from such corporations and power. With the ever expanding influence of money, corporations and corporate interests, elections are no longer decided by citizens; rather they are decided by big money and those who are the most powerful and wealthiest. Every individual donor to a campaign committee can now be outspent by a single corporation with the ruling in the Citizens United Case. No longer is there protection from corporate interference in the governance of the United States.
Justice John Paul Stevens was joined by three others in ruling against Citizens United. In his dissent he noted that Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He wrote: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."[5] Concluding his 90 page dissent, Stevens noted: “At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws
included a dearth of corporate money in politics.[6]
With the ruling of the Supreme Court we can then return back to James Madison and Federalist #10 and the First Amendment. Madison spoke of a faction that is facilitated by the unequal distribution of property (wealth) and a group of individuals who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. With the ruling of Citizens United, corporations have become if not already more powerful than any group of individuals. Corporations with the Supreme Court decision can spend unlimited money on ads or other communications calling for the election or defeat of an individual candidate all the while being protected by the First Amendment of the Constitution. The First Amendment to the Constitution is important to this because now corporations can be defined as singular individuals where as their speech is protected under the Constitution. A question to be raised is whether or not Madison in 1789 saw that businesses and single individuals are the same, each equal, and thus can be protected against the government from infringing upon the rights laid out by the first
Amendments.
In the big picture, the ruling by the Supreme Court has unveiled the true rulers in the country, those who have the wealth, have the power. James Madison in 1817 wrote in his Detached Memoranda: “There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by…corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of
abuse.”[7] Madison saw 195 years ago the growing influences that corporations can have in the country and the subsequent abuses that can arise from such corporations and power. With the ever expanding influence of money, corporations and corporate interests, elections are no longer decided by citizens; rather they are decided by big money and those who are the most powerful and wealthiest. Every individual donor to a campaign committee can now be outspent by a single corporation with the ruling in the Citizens United Case. No longer is there protection from corporate interference in the governance of the United States.