jimsleeper.com » How the Supreme Court Announced Its ‘Citzens United’ Coup

How the Supreme Court Announced Its ‘Citzens United’ Coup

By Jim SleeperTPM Cafe, January 22 and January 24, 2010 (Two columns here)

Sometimes the best way to understand current events is to follow the “undercurrent events” that drive them. To understand the Supreme Court’s rollback of regulations on corporate electioneering in Citizens United, Appellant v. Federal Election Commission, follow the Court’s conservative majority as it actually discussed the case on September 9.

What the Justices said was drowned out by the chatter about President Obama’s big speech to Congress on health care that same day. But the consequences of this undercurrent for the United States, let alone for Obama’s health-care hopes, will now swamp even Scott Brown’s filibuster-boosting victory in Massachusetts.

Just compare this week’s ruling with what the justices said in September, and you see that they didn’t learn anything from the hearing, because they didn’t intend to.

1.Questioning Solicitor General Elena Kagan in September as she defended the federal regulations, Justice Antonin Scalia wondered impishly if he was being “too cynical” to suspect that Congress had enacted curbs on corporate electioneering to shield itself against well-funded challengers. Kagan had to inform him that business gives 10 times more to incumbents, who can and do return the favor many times over.

Kagan couldn’t resist adding that, far from protecting incumbents, the McCain-Feingold campaign-finance law “may be the most self-denying thing Congress has ever done.” That drew a few chuckles in the court, but outside the hearing that day, Sen. Russell Feingold noted that, indeed, the stench of legislative corruption by business had shamed Congress into passing such laws.

Apparently Scalia had had no idea, and this week’s ruling just drops the subject, asserting simply that “the anti-corruption interest is not sufficient to displace” the corporate right to speech.

2. Outside the September hearing, Feingold’s co-sponsor, Sen. John McCain, rejected “the [conservative majority’s] premise that corporations have rights as citizens” — rights to free speech, for example. McCain is on the mark, for reasons the framers of the Constitution understood so well that they made a specific exemption for “the press,” the only industry named in that document.

But inside the Court, Scalia kept trying to distract attention from the fact that the First Amendment wasn’t written to protect corporate “speech.” He kept emphasizing that 96 percent of the corporations “silenced” by the curbs are single-shareholder, “mom and pop” hairdressers and car dealerships that can’t overwhelm public debate. Kagan had to remind Antonin the Innocent that a small corporation’s sole owner can transfer and use its resources to speak out as a citizen anytime, without offending anyone else involved in the business.

But as the current (or recent) curbs on outright corporate electioneering are removed, big businesses, whose “owners” change hourly at the click of a broker’s mouse, will indeed overwhelm public elections, and to only one end: While living, breathing citizens sometimes rise above their self-interests as corporate employees and consumers to make choices for greater good, a business corporation’s charter and shareholders don’t allow it to do that. (Hence all those corporate PBS commercials pretending that they do.)

Yet this week’s ruling insists that “by taking the right to speak from some,” public regulation “deprives the disadvantaged person or class of the right to use speech to establish… respect for the speaker’s voice” and deprives “the public of the right… to determine for itself what speech and speakers are worthy of consideration.”

3. Scalia even adds, in a concurring opinion, that to “impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”

I’ve never thought of big corporations as “disadvantaged” in speaking. And, impressed though I am by Scalia’s “modern free economy” these days, I’m a bit reluctant to “celebrate…the addition” of corporate speech to public life. Has it really been missing? Has anyone been depriving you or me of our right to determine that business’ views deserve consideration?

4. In September, Chief Justice John Roberts fretted that the Government was “extraordinarily paternalistic” in assuming that shareholders can’t “keep track “of what corporations are doing with their investments. Kagan reminded this Alice in Wonderland that most people with retirement plans don’t even know which corporations they “own,” let alone whether their investments are being misused.

The ruling now assures us that new technology makes it easier to know and that “corporate democracy” rectifies abuses.

5. At the September hearing, Justice Kennedy became exercised by the deep thought that bans on corporate electioneering silence those who know the most about the very industries that Congress regulates. Kagan reminded him that no law keeps corporate lobbyists from swarming all over Congress, where they even draft legislation. By barring direct campaign expenditures, she said, “we’re only separating persuasion [in lobbying] from coercion.”

Yet now Kennedy, writing for the majority, quotes Scalia’s claim that the legislation “muffles the voices that best represent the most significant segments of the economy.”

This ruling will amplify, many times over, the distortion of our public life by “artificial being[s], invisible, intangible, and existing only in contemplation of law,” as Chief Justice John Marshall described corporations nearly 200 years ago. We, the people, create them, regulate them, bail them out, license them for specific purposes, and have every right to bar them from using shareholders’ investments to overwhelm the democratic process.

The ruling thwarts that right with soaring abstractions (see Roberts’ concurring opinion) about corporations as voluntary associations of citizens joined in a “common cause.”

That line of reasoning does free the labor unions and iconic “mom and pop” corporations to campaign for their favored candidates, too. But unions and small businesses get weaker as big businesses’ power over public life gets stronger, because big business doesn’t put the public interest before profits.

So the justices just pretend that the two are the same – even though the biggest corporations are evolving beyond American control, in ways the Court doesn’t mention.

The free speech that corporations already exercise so vigorously and ubiquitously as consumer marketers and trainers of labor is transforming our public life beyond anything envisioned by the framers, whose “original intent” the conservative justices invoke defensively in the ruling but don’t square with the founders’ own suspicion of corporations, as Justice John Paul Stevens shows in the Court minority’s devastating dissent.

Stevens’ dissent also quotes Theodore Roosevelt’s admonition to Congress in 1905 that “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… an effective method of stopping the evils aimed at in corrupt practices acts.”

Congress has never gotten that far, but it has tried periodically since 1907, because the stench of money in politics was so great, as Feingold said in September. He warned then that a ruling like this “would prevent us from legislating,” from regulating what we ourselves had created.

Now, “Exxon or any other firm could spend [Michael] Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care,” as Michael Waldman of the New York University School of Law’s Brennan Center lamented to the New York Times.

.Justice is properly blind, but not as blind and small-minded as the men who lifted the hems of their black robes hypocritically above the muck of political and economic life that makes laws like McCain-Feingold so necessary. The September hearing shows them behaving like mere lawyers who, since they already know their client and the side they’re representing, ask only rhetorical questions, not open-minded ones.

Judges are supposed to be better than that, but when Kagan gave the conservative Justices answers that challenged their premises and facts, they simply changed the subject.

Citizens United was never about “freedom of speech.” It was never about “censorship.” Ever since it was taken up by the Roberts Court, it has always been about judicial radicals’ determination to give corporations “rights” a free people should never give them.

I wrote three columns about this case in September, one in the Boston Globe and two right here. But that month’s current events eclipsed the undercurrent event that has now arisen to swamp us.

We won’t have to wait until November, 2010 to know what has hit us. All we have to do is watch our members of Congress change while just thinking about it.


More Obfuscation About Corporate “Speech”

By Jim Sleeper – January 24, 2010

Many “progressives” (even at the ACLU) who’ve sympathized with the Supreme Court’s rollback of almost all public regulation of corporate expenditures in elections accept the Court’s declaration that it’s defending “freedom of speech” against “censorship.”

It isn’t. Nothing in campaign-finance laws that the court is eviscerating ever really barred big business from inundating us with its “speech” and Congress with its lobbyists. This is a coup against something else.

An unusually impassioned New York Times editorial got this exactly right, but, this morning, Times reporter David Kirkpatrick (showcased in the Week in Review section by its editor, Sam Tanenhaus) lazily shoots down the claim that corporate election money corrupts. No one can prove it, sniffs the newshound.

Maybe not, but the bigger danger is that debate among citizens is being skewed and drowned by simulated voices of non-corporeal (often non-American) entities that can’t be swayed by debate, as citizens sometimes can, to rise above their bottom lines. The First Amendment wasn’t written to protect business corporations – a fact that’s strongly confirmed by its specific exemption of “the press” from regulation of speech. Other corporations are fair game. Citizens can speak for business interests anytime. So can corporations’ paid voice-overs – when we, who created them, allow it.

I made this point here below, but not in neon. So I give the floor to “Man’s best friend,” who posted this comment there: “Corporations are a legal invention whose sole purpose is to protect property rights… They can enter into contracts, which govern the exchange of money and property (or services…). They can sue or be sued, impose or have imposed liens on property. There are NO rights of natural persons that appertain to corporations other than those connected with property rights. They can’t vote. They have no 5th amendment protection against self-incrimination. They do not have free speech rights.”

Get it? Conservative justices pretended not to, thereby violating the Court’s and the republic’s most basic principles. So did the Emperor Augustus, who permitted Romans to continue to hold noisy elections with “all the wild inconveniences of democracy” even as he and others drained the fading republic’s offices of power and honor. So now, too, with Roberts court majority and our already enfeebled Congress.