Friday, January 29, 2010

Obama v. Alito

Posted By on 01.29.10 at 07:00 AM

The High Noon moment of President Obama's State of the Union address came toward the end of it, when he addressed the Supreme Court, sitting directly below him.

"With all due deference to separation of powers," said Obama, "last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests —- including foreign corporations —- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems."

Most of the justices sat stonily and took this in, both the justices who voted in the majority in last week's 5-4 decision lifting the limits on corporate political advertising, and those who dissented. The exception was Justice Samuel Alito, who — in the words of the AP — "made a dismissive face, shook his head repeatedly and appeared to mouth the words 'not true' or possibly 'simply not true' when Obama assailed the decision."

What wasn't true? Did Alito think the only thing the Court had reversed was a 1990 ruling in Austin v. Michigan Chamber of Commerce and not decades of prior decisions? Or did he think it was untrue that last week's decision opened any floodgates; did he think the Court hadn't ceded control of our elections to our own powerful corporations much less to foreign ones? Or did he think that no bill could correct the problems Obama saw because any bill that tried would be unconstitutional?

It's possible the indignant president and the indignant justice were both right, the president on practical grounds and the justice on constitutional grounds. The most famous constitutional point ever made in a Supreme Court opinion is surely the one by Oliver Wendell Holmes Jr. — that no man has the right to falsely shout fire in a crowded theater. But if we assume the justices routinely think just as hard about the practical implications of constitutional principles as they do about the principles themselves, Holmes has misled us.

Sometimes they do. Sometimes they don't.

I've looked over Justice Anthony Kennedy's opinion for the majority in Citizens United v. FCC, Chief Justice John Roberts's concurring opinion, in which Alito joined, and a concurrence by Justice Antonin Scalia. I don't find them agonizing over what their decision might do to the American election process. They stand on bedrock constitutional principles, and if they've unleashed malign plutocratic forces that will make a hysteric screaming in a theater seem like a minor nuisance — well, they leave it to Justice John Paul Stevens in his 90-page dissent to worry about that.

(Citizens United is a nonprofit corporation that in January 2008 released a film slamming Hillary Clinton as she was running for president and then produced TV ads promoting it.)

Roberts writes:

"The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern....First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy....The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer."

He might have added, "It protects more than just romantic symbols of free speech. It protects free speech itself."

Hours before Obama spoke, Tribune columnist Clarence Page mused about "corporate personhood" and the Citizens United opinion. He wondered: "Who says corporations are entitled to the same rights as individuals?"

Knowingly or otherwise, Page was channeling the Reader's own Cecil Adams, who had discussed the same topic back in 2003. Adams and Page explained that this personhood is predicated on the equal protection clause of the 14th Amendment, which was written and ratified to assert the rights of former slaves, not corporations. But corporations reaped the benefit, thanks to a remark made by the chief justice of the Supreme Court before oral arguments in an 1886 suit and quoted in the legal summary of that case.

I've heard the Citizens United decision denounced on these grounds — that it's absurd to think of a corporation as a person and give it human rights. A corporation is without everything that makes a person human — selflessness, idealism, a willingness to embrace higher values than money. A corporation might have a culture, but it doesn't have a soul. As a human it's a sociopath.

Justice Stevens draws his own distinctions in his passionate dissent. "In the context of election to public office," he writes, "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."

But the majority opinion doesn't call a corporation a person.

"Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster..." writes Kennedy. "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."

Justice Antonin Scalia, in a separate concurrence, meets the matter head-on. He writes, "All the provisions of the Bill of Rights set forth the rights of individual men and women — not, for example, of trees or polar bears. But the individual person's right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of 'an individual American.' It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different — or at least it cannot be denied the right to speak on the simplistic ground that it is not 'an individual American.'"

To which Stevens replies, "Although Justice Scalia makes a perfectly sensible argument that an individual's right to speak entails a right to speak with others for a common cause. . . he does not explain why those two rights must be precisely identical, or why that principle applies to electioneering by corporations that serve no 'common cause.'"

We can consider the justices in the majority ingenuous or disingenuous, earnest or sly, for labeling a corporation an association of citizens, with rights equal to those of citizens acting alone. But it wouldn't be a bad thing if shareholders were prompted to think of themselves that way, if they asked themselves, "I don't mind these jokers making me some money, but do I want them speaking on my behalf and dragging me into their causes?" I doubt if many CEOs want "Not in my name you don't" movements organizing within their shareholders' ranks.

So we'll see. A ringing endorsement of the First Amendment is always nice to read, and Scalia reminds us that the "press" is more than a collection of ink-stained wretches — it normally takes corporate form. So I guess he's got our back.

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