QUOTE OF THE MONTH:
“I hope we shall … crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
Thomas Jefferson
“The Works of Thomas Jefferson”
Nov. 12, 1816
SENSE AND NONSENSE—THE SUPREME IDEOLOGICAL COURT
From the editor: Not so fast. If we liberals thought the election of Barack Obama ushered in an era where reality politics replaces ideological extremism, the five radically ideological justices of the Supreme Court—Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Justice Samuel A. Alito, Jr., Justice Antonin Scalia, and Justice Clarence Thomas just brought us rudely back to earth. Justice Kennedy, with his deciding vote that allowed Bush to steal the 2000 election and with his decision in Citizens United v. Federal Election Commission, has just secured his place in history as the single most destructive force currently threatening our fragile democracy.
I have found the best way to measure the enormously destructive nature of the “Gang of Five’s” remarkably inane, anti-intellectual, ideological and “activist” decision is to review the scathing dissent written by 90-year-old Justice John Paul Stevens, who has told President Obama he plans to retire in June, 2010.
Following are what I consider to be important excerpts from his scholarly and historically accurate review (including 76 meticulously researched footnotes) of the majority opinion. Justices Stephen G. Breyer, Ruth Bader Ginsburg and recently appointed Justice Sonia Sotomayor also voted against the majority opinion in the 5-4 decision.
As you read the following excerpts and quotes from Justice Stevens please remember that the language used is written by lawyers for lawyers. It is a legal brief full of references, footnotes and abbreviations. However, there are five major themes addressed by Justice Stevens that can be translated into language that is easily understandable. The complete dissent is available at www.law.cornell.edu, the website of Cornell University School of Law. The five themes are:
- The majority opinion written by Justice Kennedy exceeds the issue it was being asked to decide, and, instead, asks itself to reconsider cases it wants to overturn. Stevens says, “…the majority decides this case on a basis…not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation.”
- The majority opinion does not make a historically legal and important distinction between corporations and individual Americans. Stevens says, “In the context of election to public office, the distinction between corporate and human speakers is significant.” He has much to say about this distinction including, “It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”
- The majority opinion undercuts the legal principle of stare decisis or literally the “rule of law,” essentially a policy to stand by previously decided cases. Stevens says “I am not an absolutist when it comes to stare decisis. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five justices.”
- The majority opinion pretty much ignores the potential for corruption of the electoral process by limiting its view of corruption to “quid pro quo corruption.” Stevens says, “Undergirding the majority’s approach to the merits is the claim that the only ‘sufficiently important governmental interest in preventing corruption or the appearance of corruption’ is one that is ‘limited to quid pro quo corruption.’ This is the same ‘crabbed view of corruption’ that was espoused by JUSTICE KENNEDY in McConnell and squarely rejected by the Court in that case.”
- The majority opinion tries to justify its decision with twisted logic about protecting First Amendment rights of corporations. Stevens says, “The Framers (of the constitution) thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized (sic) the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”
Following are verbatim excerpts. All bold type has been added for emphasis.
“The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), (Note: This legislation is also referred to as the McCain/Feingold Act) it could have used those assets to televise and promote “Hillary: The Movie” wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast “Hillary” at any time other than the 30 days before the last primary election. Neither Citizens United nor any other corporation’s speech has been “banned.” All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide the case.”
“In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
“The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life (2007), McConnell v. FEC (2003), FEC v. Massachusetts Citizens for Life, Inc. (1986), and California Medical Assn. v. FEC (1981).”
“The 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. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question.”
“The first reason is that the question was not properly brought before us…the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. Our colleagues’ suggestion that ‘we are asked to reconsider Austin and, in effect, McConnell,” would be more accurate if rephrased to state that ‘we have asked ourselves’ to reconsider those cases.”
“The final principle of judicial process that the majority violates is the most transparent: stare decisis. (Editor’s Note: The legal term “stare decisis” is the basis for the “rule of law.” It simply means that previous decisions by the court carry much weight and should be respected.) I am not an absolutist when it comes to stare decisis. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five justices.”
“The novelty of the Court’s procedural dereliction and its approach to stare decisis is matched by the novelty of its ruling on the merits. The ruling rests on several premises. First, the Court claims that Austin and McConnell have ‘banned’ corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker’s identity as a corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment tradition and our campaign finance jurisprudence. Each of these claims is wrong.”
(Editor’s Note: Justice Stephens devotes the next several pages of his dissent to the systematic dismantling of the three claims mentioned above. He ends this section of the dissent with the following observation.)
“A third fulcrum of the Court’s opinion is the idea that Austin and McConnell are radical outliers, ‘aberrations,’ in our First Amendment tradition. The Court has it exactly backwards. It is today’s holding that is the radical departure from what had been settled First Amendment law.”
“Thomas Jefferson famously fretted that corporations would subvert the Republic. General incorporation statutes, and widespread acceptance of business corporations as socially useful actors, did not emerge until the 1800’s. See Hansmann & Kraakman, The End of History for Corporate Law. (‘All general business corporation statutes appear to date from well after 1800.’)”
“The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized (sic) the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”
“A century of more recent history puts to rest any notion that today’s ruling is faithful to our First Amendment tradition. At the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act, banning all corporate contributions to candidates.”
“President (Theodore) Roosevelt, in his 1905 annual message to Congress, declared:
‘All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.’”
“In sum, over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to ‘preserve the integrity of the electoral process, prevent corruption,…sustain the active, alert responsibility of the individual citizen,’ ‘protect the expressive interests of shareholders, and ‘preserve…the individual citizen’s confidence in government.’ McConnell.”
“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
“Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential (sic) holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality.
“In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle ‘elevates corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.’ 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.”
“I would affirm the judgment of the District Court.”
Editor’s Final Comment: The Supreme Court handed down this historic and disastrous decision on Thursday, January 21, 2010. The joke before this decision was that our government is the best money can buy. Now this truism is no longer a joke. Under this decision, our country has just moved from governance by arrogant aristocrats toward a fascist state in which corporations can corrupt the electoral process to a degree our forefathers thought as threatening as any foreign or terrorist enemy. There is only one upside to the decision. It underscores the importance of keeping Obama in office through two full terms to prevent the appointment of radical ideologues who can pretend to defend justice while doing everything they can to destroy the underpinnings of a democratic society.
Maynard Chapman, Editor
The Compass
Copyright © 2010, The Compass Society
