The Supremes

I wish I was talking about the soulful group led by Diana Ross from the 1960s. Unfortunately, I’m talking about our Supreme Court. By now, you have read hundreds of opinions of why the 5-4 decision in Citizens United versus the Federal Election Commission was bad or was good for the country. I think the decision was awful. I do not think we will see a huge influx of money into our elections. We have already seen this. We have seen staggering sums of money as business tries to influence our politicians. From my standpoint, I have a problem with corporations being treated as persons. Aren’t corporations nothing more than contracts? Are they nothing more than stacks of paper? We should treat them as such.

From the Daily Beast:

The Supreme Court’s decision to roll back campaign-finance reform does more than just open the spigots for corporate cash. It also exposes the judicial activism of the Roberts Court.

On Thursday, the Supreme Court voted 5-4 in Citizens United v. Federal Election Commission to overturn decades-old restrictions on campaign-finance reform. The majority’s bludgeoning of what were already pitifully weak restraints on corporate campaign spending is a kind of jurisprudential equivalent to clubbing a baby seal: a revolting spectacle that might make even a sadist or a K Street lawyer blanch. The animating principle that underlies the majority’s argument is clear: We must do what we can to ensure that corporate America shall have a new birth of freedom–and that government of the wealthy, by the wealthy, for the wealthy, shall not perish from the earth.

Three aspects of the decision are particularly noteworthy. First, Chief Justice John Roberts, who was praised to the skies at the time of his confirmation hearings for his supposedly “minimalist” approach to judging, goes out of his way to demolish several decades worth of congressional work to do something about the corrupting influence of money on politics.

He does so by taking two totally unnecessary steps. For one thing, the law at issue could easily have been interpreted to simply not apply to the facts of this case. (The case involves the distribution of a feature-length film via video on demand, which quite arguably is not an “electioneering communication” covered by the federal statute the court struck down). It’s a well-established rule of statutory interpretation that when a court is faced with two plausible readings of a federal statute, one of which would require something as drastic as finding the statute unconstitutional, and the other which avoids that outcome, the justices ought to prefer the latter. Indeed, that rule is a central tenet of anything that deserves to be called “minimalist” judging.

Secondly, even after the Court chose to interpret the statute in the former fashion, Roberts and the rest of the majority could have held that the statute was not unconstitutional on its face, but merely as applied to the facts in this particular situation. Avoiding rulings that declare federal laws unconstitutional on their face rather than as applied is also a fundamental principle of minimalism.

Curiously, Roberts’ aversion to maximalist interpretations of First Amendment rights seems to fade away when the victims of government “censorship,” as he calls it, are major corporations rather than individual human beings.

Justice Antonin Scalia’s concurrence provides an even more morbidly amusing exercise in judicial gymnastics. After all, one would think a genuine commitment to applying the original meaning of the Constitution to contemporary cases poses a serious problem to someone who wants to find that the document forbids Congress from banning direct campaign contributions by corporations.

It’s difficult to express how bizarre the framers of the Constitution would have considered such a proposition. Indeed, prior to the middle of the 20th century, the idea that artificial “persons” such as corporations could have constitutional rights was unknown in American law. Scalia is reduced to arguing that he can find no historical evidence that the framers were opposed to the idea of granting free-speech rights to corporations. It’s quite true there is no such evidence. It’s also true there’s no evidence that the framers opposed escalating the Vietnam War, deregulating the airline industry, or breaking up the Beatles.

In other words, it’s hardly surprising that he can find no explicit opposition in 18th-century American political debates to an idea that didn’t occur to anyone until 150 years later.

Finally, Justice Kennedy’s majority opinion is long on what Justice John Paul Stevens’ dissent accurately labels “glittering generalities.” But it is short on any explanation as to how those generalities–such as that speech cannot be regulated on the basis of the identity of the speaker–can be squared with holdings such as Kennedy’s recent vote to allow a school to suspend a student who unfurled a banner advocating “BONG HiTS 4 JESUS.” (The only basis for not considering this unconstitutional censorship is that certain kinds of people, namely students at school events, have fewer free-speech rights than, say, an ordinary citizen in a public park).

All this adds up to yet another example, as if one were needed, that conservative complaints about “judicial activism” are usually nothing more than a code for “judicial outcomes conservatives don’t like.” Citizens United strikes down a major federal statute by taking the extreme step of explicitly overturning the Court’s own precedents, while dismissing a century’s worth of congressional attempts to stop special interests from buying legislation. The argument that the relevant legal materials required the Court to take such a step is flatly incredible. In short, the decision is as pure an example of judicial activism as one could hope to find.

As a consequence, we are left in a situation where Congress can do little more to quell the corrupting influence of money on politics than forbid the explicit bribing of elected officials. Such a triumph of laissez-faire ideology gives a whole new meaning to the phrase “the marketplace of ideas.”

0 Responses

  1. Aren’t corporations nothing more than contracts? Are they nothing more than stacks of paper?
     
    1.     Most often corporations are groups of people, sometimes thousands of people. Should group of people such as unions and corporations be treated differently from individuals?
    2.     Paper can’t be place in jail. These campaign laws have criminal penalties against people involved “electioneering.”
    3.     Whether corporations are or aren’t persons misses the point. McCain Feingold is a ban against political speech.  In Citizens United, the FEC banned a video. The FEC could ban books, pamphlets,  or even blogs it considered from inappropriate source backed by the threat of imprisonment.
    4.     Thanks to the Supreme Court for protecting political speech.
     

  2. TCB – 

    It is good to hear from you. I hope that you and your family had a wonderful Christmas holiday.

    Arthur Andersen was indicted for their role in helping Enron cook the books. Who went to jail for Arthur Andersen? Did any senior official go to jail? No. That is the problem. A corporation is nothing but a stack of paper. It is nothing but contractual agreements. The people that run the company (or sign the contract) — the CEO, CFO and the Board of Directors, they should be in charge. They should be responsible for the behavior of their company. They should be held responsible for upholding that contract.

    The individuals in charge of the company should be treated as individuals. Whether it is individuals in charge of a Fortune 500 company or in charge of the Union. People are in charge. They should be held accountable.

    I’ve already answered your second question or statement.

    Again, as a former debater, I’m surprised you’re not more precise. The FEC did not ban the video out right. Instead there was a ban in playing the video at a certain point in time before the election. The video can be played anytime and anywhere except 30 days before an election. That’s it. How is that unreasonable? Again, there was no ban on you or I speaking.

    Finally, I might add that no rights in the Bill of Rights is absolute. Speech is included. The best example is yelling fire in a crowded movie theater. You can’t do that.

    Hey, thanks for your input. 

  3. Thank-you. Merry XmaS.  Last year was a strange year. Hope all is well.
     
    ECT: Arthur Andersen was indicted for their role in helping Enron cook the books. Who went to jail for Arthur Andersen? Did any senior official go to jail? No. That is the problem. A corporation is nothing but a stack of paper. It is nothing but contractual agreements. The people that run the company (or sign the contract) — the CEO, CFO and the Board of Directors, they should be in charge. They should be responsible for the behavior of their company. They should be held responsible for upholding that contract.  
     
    The individuals in charge of the company should be treated as individuals. Whether it is individuals in charge of a Fortune 500 company or in charge of the Union. People are in charge. They should be held accountable.  
    Me: Indicted is not convicted. Now, some of the officers from Enron were convicted. The CFO, Jeffery Skilling is still in jail. Key Lay was also convicted. I don’t know if he spent any time in jail before he died. Sure they should held accountable but I also don’t think they should be treated dffernenrly from others. Whyshould David Bosie of Citizens United be incarcerated for passing out his DVD and Michael Moore gets to shows his film in movie theaters. Both were supported by corporations but the government picks  the right and wrong corporation (via the label of media).
    Second, the courts have long recognized the first amendment rights of groups of people, associations and corporations. Could you imagine the howls of protest if the government fined the New York Times for a story they didn’t like. They would correctly shout that the government is violating the freedom of the press. I guess your response would be that the government didn’t violate the freedom of the press since they didn’t fine any journalist.
    Finally, the first amendment also states the government may not violate freedom of association. How strange the when people gather in associations some believe that they must lose their other first amendment  rights.

  4. Thank-you. Merry XmaS.  Last year was a strange year. Hope all is well.
     
    ECT: Arthur Andersen was indicted for their role in helping Enron cook the books. Who went to jail for Arthur Andersen? Did any senior official go to jail? No. That is the problem. A corporation is nothing but a stack of paper. It is nothing but contractual agreements. The people that run the company (or sign the contract) — the CEO, CFO and the Board of Directors, they should be in charge. They should be responsible for the behavior of their company. They should be held responsible for upholding that contract.  
     
    The individuals in charge of the company should be treated as individuals. Whether it is individuals in charge of a Fortune 500 company or in charge of the Union. People are in charge. They should be held accountable.  
    Me: 1. Indicted is not convicted. Now, some of the officers from Enron were convicted. The CFO, Jeffery Skilling is still in jail. Key Lay was also convicted. I don’t know if he spent any time in jail before he died. Sure they should held accountable but I also don’t think they should be treated differently from others. Why should David Bosie of Citizens United be incarcerated for passing out his DVD and Michael Moore get to shows his film in movie theaters. Both were supported by corporations but the government picks the right and wrong corporation (via the label of media).
    2. The courts have long recognized the first amendment rights of groups of people, associations and corporations. Could you imagine the howls of protest if the government fined the New York Times for a story they didn’t like. They would correctly shout that the government is violating the freedom of the press. I guess your response would be that the government didn’t violate the freedom of the press since they didn’t fine any journalist.
    3. The first amendment also states the government may not violate freedom of association. How strange the when people gather in associations some believe that they must lose their other rights.

  5. Thank-you. Merry XmaS.  Last year was a strange year. Hope all is well.
     
    ECT:”Arthur Andersen was indicted for their role in helping Enron cook the books. Who went to jail for Arthur Andersen? Did any senior official go to jail? No. That is the problem. A corporation is nothing but a stack of paper. It is nothing but contractual agreements. The people that run the company (or sign the contract) — the CEO, CFO and the Board of Directors, they should be in charge. They should be responsible for the behavior of their company. They should be held responsible for upholding that contract.  
     
    The individuals in charge of the company should be treated as individuals. Whether it is individuals in charge of a Fortune 500 company or in charge of the Union. People are in charge. They should be held accountable. “ 
     
    Me: 1. Indicted is not convicted. Now, some of the officers from Enron were convicted. The CFO, Jeffery Skilling is still in jail. Key Lay was also convicted. I don’t know if he spent any time in jail before he died. Sure they should held accountable but I also don’t think they should be treated differently from others. Why should David Bosie of Citizens United be incarcerated for passing out his DVD and Michael Moore get to shows his film in movie theaters. Both were supported by corporations but the government picks the right and wrong corporation (via the label of media).
    2. The courts have long recognized the first amendment rights of groups of people, associations and corporations. Could you imagine the howls of protest if the government fined the New York Times for a story they didn’t like. They would correctly shout that the government is violating the freedom of the press. I guess your response would be that the government didn’t violate the freedom of the press since they didn’t fine any journalist.
    3. The first amendment also states the government may not violate freedom of association. How strange the when people gather in associations some believe that they must lose their other rights.

  6.  
    ECT:” I’ve already answered your second question or statement.  
     
    Again, as a former debater, I’m surprised you’re not more precise. The FEC did not ban the video out right. Instead there was a ban in playing the video at a certain point in time before the election. The video can be played anytime and anywhere except 30 days before an election. That’s it. How is that unreasonable? Again, there was no ban on you or I speaking.  
     
    Finally, I might add that no rights in the Bill of Rights is absolute. Speech is included. The best example is yelling fire in a crowded movie theater. You can’t do that. “ 
     
    The standard is not what’s reasonable or unreasonable but whether or not the government has a compelling interest. Traditionally, compelling has involved the states role as defender of the public’s safety.  As Scalia pithily notes, the Constitution is note a suicide pact. You have acknowledge the high standard that our constitutional tradition has placed on free speech. I fail to see Bosie’s DVD “The Case Against Hilary” or say a 30 minute Microsoft infocommercial against candidate B or a book about Obama meets the standard of a “fire in a crowded theatre.”

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Errington C. Thompson, MD

Dr. Thompson is a surgeon, scholar, full-time sports fan and part-time political activist. He is active in a number of community projects and initiatives. Through medicine, he strives to improve the physical health of all he treats.

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