Thursday, January 21, 2010

Supreme Court ruling on corporations directly giving to candidates and issues

The Supreme Court decision in the Citizens United has been issued. I have a day job and don't have time to read it yet. My gut is that, despite it being a 5-4 decision (O'Connor's retirement has again made the difference as Alito is far more right wing), the logic of the decision is probably correct under most modern jurisprudence. The disclosure rules were upheld, thank goodness, and which again is consistent with modern jurisprudence that places a high value on transparency in electoral campaigns.

The public policy solution I have supported for a good decade or more is the so-called "clean elections" policy, which consists of public financing where candidates voluntarily limit their outside expenditures for public expenditures. That's a better fight to have in the US Supreme Court than McCain-Feingold and the other reforms. Even more importantly, we should support increasing the membership in the House of Representatives so that we are able to have much smaller districts of people so candidates can go door to door as in older days. Door to door contact undermines the power of corporate media advertising, which as we know is largely emotionally misleading by intent. Scott Brown stood in front of IHOPs during his campaign in Massachusetts. The late Paul Wellstone did the same thing in Minnesota. That is what works.

Back to day job! Now!!

ADDENDUM (Thursday night of January 21, with Saturday morning, January 23 edits): Some thoughts on the majority and minority opinions:

1. It is amusing to read Scalia's concurring opinion because, as usual, his bombast betrays his own inconsistencies. For a guy who rails against anyone who dares question his eccentric combination of text reading and originalism, he now supports an organic read of the First Amendment when it is favoring his beloved corporate behemoths. Scalia says in part in footnote 5 of his concurring opinion:

As additional “[p]ostratification practice,” the dissent notes that the Court “did not recognize any First Amendment protections for corporations until the middle part of the 20th century.” Post, at 40, n. 56. But it did that in Grosjean v. American Press Co., 297 U. S. 233 (1936), a case involving freedom of the press—which the dissent acknowledges did cover corporations from the outset. The relative recency of that first case is unsurprising. All of our First Amendment jurisprudence was slow to develop. We did not consider application of the First Amendment to speech restrictions other than prior restraints until 1919, see Schenck v. United States, 249 U. S. 47 (1919); we did not invalidate a state law on First Amendment grounds until 1931, see Stromberg v. California, 283 U. S. 359 (1931), and a federal law until 1965, see Lamont v. Postmaster General, 381 U. S. 301 (1965).

Scalia thinks nobody will notice that his justification for his position rests upon "slow to develop" constitutional jurisprudence--you know, organic and dynamic development of the law. Elsewhere in his concurring opinion, Scalia does a little dance by comparing the Sons of Liberty to...Exxon in saying modern corporations are like political associations of two hundred years ago. I could say he is on firmer ground in stating the corporations known as the New York Times, NBC or FoxNews are akin to political associations. But not Exxon. Chief Justice Roberts, too, has a problem understanding the distinction between Exxon and NBC, which is frankly unbecoming of him. Courts are called upon to make far more subtle distinctions than differentiating CNN from Wal-Mart in terms of First Amendment rights.

2. It is also amusing to read Chief Justice Roberts opining in lofty tones about the limits of stare decisis. He could have saved us much reading time if he just said, "I am only in favoring of upholding tradition, including stare decisis, when it favors corporate power over the individual. If it hurts corporations, stare decisis be damned." I loved this quote from Roberts:

Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Since the majority Justices believe the corporate form can be set aside for First Amendment purposes--note how often the five majority Justices spoke of people speaking as the corporations they work for--and since we already know that corporate forms can be set aside "in the interest of justice", for "inadequate capitalization," "not keeping adequate minutes of meetings," "fraud" and in closely held corporations where majority shareholders act badly against minority shareholders (see: Minife v. Rowley (1921) 87 Cal. 481; Jones v. H.F. Ahmanson & Co. (1969) 1 Cal.3d 93), why not stop "making new mistakes" in continuing to immunize from liability the personal responsibility of corporate executives and shareholders? Have fun trying to use Roberts' quotes when you want to convince Justice Roberts to overturn a precedent he actually likes...Justice Stevens is devastating in his put down of Roberts' philo-sophistry at page 18, footnote 18 of Stevens' opinion. Stevens notes that Roberts thinks that continued negative references to the Austin decision (decided in 1990) in various dissenting opinions rendered the Austin decision suspect. Says Stevens: "Under this view (of Roberts), it appears that the more times the Court stands by a precedent in the face of requests to overrule it, the weaker that precedent becomes." Move over, Antonin. The biting one liner is no longer yours alone...

3. I am astounded that neither the majority nor concurring opinions of the so-called "conservative" majority found room to mention the Tillman Act of 1907, which act banned corporate contributions altogether (A more comprehensive article which discusses this act is by Adam Winkler "The Corporation in Election Law"). Is that one hundred plus year old Act of Congress now unconstitutional? I think it is under today's decision. But where was the integrity on the part of these justices (Roberts, Kennedy, Alito, Scalia and Thomas) to simply say so? Why hide behind their attack on the relatively recent Austin opinion to reach their conclusion?

4. Justice Stevens' dissent presents a compelling read about our Founders' mercantile sensibilities and how appalled most of them, even Hamilton, would be at the power of corporations in our modern society (see: pages 35-39 of Stevens' dissenting opinion). Stevens also wonders how the majority of so-called "conservative" justices could suddenly have amnesia about the Tillman Act of 1907, when in other cases, they are so very concerned with deference to the legislature and stare decisis (see: pages 2-3 of Stevens' dissent).

WHY THE ACTUAL DECISION IS STILL PROBABLY RIGHT--AT LEAST IN PART: Because I tend to agree with James Madison, in Federalist Paper no. 37, when he said that only experience can really help us understand the vagaries of the Constitution's broad terms, phrases and sentences, I think the development of the instant modern media and the Internet in particular may well compel this decision today. For example, I personally found the rule in McCain-Feingold prohibiting ads within 30 days of an election to be too draconian for First Amendment purposes in a world that is now instant and on the Internet. I believe the rise of the Internet will continue to undercut the major networks on television and radio--especially as the computer and television morph into each other, and into our phones.

I even have some sympathy for Justice Thomas' concerns in his lone dissenting opinion with regard to disclosure rules (requiring the disclosure of people's full names, addresses and money contributed) in political initiatives like Proposition 8 in CA (and elections of candidates) being abused by the most rabid partisans to trample on the privacy and issue threats against those with whom they disagree. There is something to anonymity at least perhaps in general writings on the Internet (see: Krinsky v. Doe 6 (2008) 159 Cal. App. 4th 1154). However, I think the fear of loss of privacy or boycotts or worse may simply be part of the rough and tumble of politics in general. DAs and government agencies will prosecute assault and battery if people engage in those actions against others. For me, I put my name out there because I won't hide behind phony monikers. I am what I am, as a famous sailor often said.

But, my judicial philosophy counsels caution for courts when deciding upon the constitutionality of legislation, such as either McCain-Feingold or the Tillman Act of 1907. It therefore leads me to believe the Supreme Court today painted with far too broad a brush. The line between direct and indirect corporate advocacy was one the Court should not have completely obliterated. Now, we may have to be supporting more boycotts against companies that dare to engage directly in political hot button issues with which we disagree. I wonder just how many corporations will direct part of their budgets to give to individual candidates--and individual political initiatives that are on ballots in various states. They might. But that will put them in a spotlight that their marketing departments may find less than flattering. The Supreme Court majority of Justices, mired in an ideology of partisan rhetoric, chose to ignore precedent, both legislative and judicial, and chose to foist upon our nation an even braver new world where corporations can directly buy politicians the way they buy rock bands and celebrities--and product placement in film, television shows, etc. It could end up being the equivalent of "The Space Merchants" (1952) by Kornbluth and Pohl, where there are no more senators from States, but instead "The Senator from DuPont"...

We'll see how this experiment goes, won't we?


At January 21, 2010 at 5:01:00 PM PST, Blogger Gregg Savage said...

I believe that this decision is more about the Dems raising more money in the last election cycle than any legal basis. The right wing on the court wanted to guarantee a never-ending flow of money.

Elections matter-- another ramification of Brown's win is that it will be harder to replace these activist judges when they retire with reasonable replacements.

At January 22, 2010 at 5:45:00 AM PST, Anonymous Anonymous said...


My shorter version is, we were already screwed. Now we're way more screwed.

[Expletive deleted.]



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