Friday, January 29, 2010
Media / Politics / News Bites / Clout City Obama v. Alito
Posted by Michael Miner 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.
Comments (12)
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"I don't find them agonizing over what their decision might do to the American election process."
Well, it's possible it won't do much. There's a good report in Talking Points Memo today, based on the testimony of various Democratic campaign veterans, that allowing corporations to directly stump for candidates is just a small step from the current baseline of allowing corporations to do "issue" ads that indirectly target candidates. Which, one contends, is more effective for the corporations - as you note, corps don't necessarily want to get directly behind specific candidates in public. Plus issue ads work really well in and of themselves.
They could be wrong - we'll really just have to see, I suspect, and also see what the legal system does with foreign entities, which could have less protection than the president implies.
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This case was lost in a crucial exchange between the justices and the FEC. The FEC was claiming the power to stop a documentary and Alito asked if they believed they had the power to stop a book, assuming it came from a corporation. Deputy solicitor general Malcolm Stewart said yes, and the case was over. If they could stop a book, they could stop anything-- including the Reader-- because it comes from a corporation (specifically its general funds, not its PAC). The PAC exemption was what Stewart clearly thought would make it okay, but to the justices, it made it worse-- because it meant that Exxon could use its PAC to publish a book and be in the clear, but the government could go after Random House for a political biography because it would be using its everyday funds.
Not that I like the role of big money in our politics any more than you do, but it would be nice to see the press recognize that the justices were actually protecting your right to publish in this case, free of the FEC getting to decide when your journalism crosses the line into corporate advocacy.
"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."
Altria might be able to bail you guys out after all.
My feelings on this decision -
1 - I believe the Court's decision, while fundamentally regrettable and far too literal, was the correct decision and the only one they could make within the confines of their duties.
2 - I believe Obama's call to action is also appropriate -- while the Supreme Court cannot legislate preemptively, Congress can and should enforce spending limits on our real-life corporations.
3 - The Supreme Court (or some other appropriate legal entity - I am out of my depth here) should facilitate the conversation pending with the Legislative branch by defining a business corporation for the specific purposes of regulation.
A corporation to my mind is an entity with the PRIMARY goal of exchanging goods, services, or information for profit, and not at all the same thing as an association.
Transparency and enforcement of transparency are the only rules that can allow progressives to win this game.
As for your point that shareholders perhaps should begin to feel a full-spectrum human responsibility for the political stances taken by the corporations whose stock they own: It probably would never happen. For one thing, shares in corporations tend to be concentrated in the hands of entities (rich folks, pension funds, mutual funds, etc.) that have no identifiably human traits other than a desire to rake in more money--much in line with the corporation's own inclinations.
For another, corporate boards, which are supposed to look out for the interests of shareholders, are and forever will be completely ineffective as long as we persist with the toxic notion that only shareholders should be represented.
Having said this, I'll express some sympathy for the Supreme Court's ruling. But then it raises the question: Why must we persist with corporations that are purely creatures of the sociopathic-in-isolation motive of generating wealth no matter how cruelly and destructively?
Corporations need charters to grant them rights and privileges far beyond those enjoyed by ordinary citizens. Why shouldn't those charters be up for renewal, say, every 4 years by popular vote?
And why should boards represent shareholders at all? Shareholders can vote quite effectively by selling or buying the stock. That's all the representation they need.
Why not mandate instead that workers and the communities in which corporations are based or do their work have sole board representation? Why should a guy whose career spans 30 years at a corporation and who depends on it for 90 percent of his income, his retirement and health insurance have less representation on the board than some dillweed in his pajamas with an ETrade account who sinks $100 into the stock for 30 seconds before he clicks out of it? How does that make any sense?
In short, if we're going to treat corporations as if they're human, why not render them more human? We created them, we license them. Let's re-create them. Or we can continue to live in a country where all the freedoms we celebrate are mostly theoretical, having long since been shot to sunshine by the effectively Stalinist corporate monstrosities that run our lives day to day and have captured every fiber and filigree of government at every level.
Pelham,
You are misunderstanding the basic structures of our economic system. Everything you suggest would cause the country (and really the world) to collapse.
On another topic, was anyone at the Sun-Times awake tonight? As of right now, their lead story on the website (which I have a feeling might end up in the print edition) states:
"The race between Gov. Quinn and Comptroller Dan Hynes for the Democratic gubernatorial nomination headed for the history books late Tuesday in the closest nail-biter for governor in nearly 35 years." ( http://www.suntimes.com/news/elections/202… )
Uh, hello. Not only is this not the closest governor's race in nearly 35 years but it isn't even the closest governor's race of the day in Illinois. As of right now, there are 503 votes separating the top two Republican candidates while Quinn leads Hynes by over 5,000. I realize Chicago is a Democratic town. But I would think that the Sun-Times reporters writing about the Democratic primary wouldn't so seem to obviously forget about the other primary for governor. I have a feeling that this is something that is going to be ridiculed by a lot of people.
The original IAC,
It's not a misunderstanding at all. It's my uncanny master plan. Please refrain from interfering as I continue to undermine civilization from this Web site.
"You are misunderstanding the basic structures of our economic system. Everything you suggest would cause the country (and really the world) to collapse."
IAC, what do you do for a living?
There is no way that I am going to answer that question, FGFM, if you don't explain what relevance you think it has to anything said on this thread (though I am not promising that I will answer it if you do so).
"There is no way that I am going to answer that question, FGFM, if you don't explain what relevance you think it has to anything said on this thread (though I am not promising that I will answer it if you do so)."
I'll take that as an admission that you are full of shit.
I have no idea why you would come to that conclusion. But is isn't particularly surprising that you would interpret something in a manner that doesn't make sense. You do seem to have a difficult time figuring out what people are saying. A couple of weeks ago, you stated I was delusional and asked "why do you have a bug up your ass about the New York Times?". That was a rather odd question considering it came in the context of a thread in which I was arguing that it would be in the Times' interest to charge for its content while others said it wouldn't attract enough readers if it did so. Obviously, that would suggest, contrary to having "a bug up my ass" with regard to the paper, that I think the content is more valuable than those that I was arguing with. So it does seem that you have a continuing problem understanding what people are arguing.
It does absolutely no good to ask general questions that clearly are meant to imply something about me when it doesn't make the slightest sense what you are attempting to imply. Pelham made some suggestions that virtually every economist across the political spectrum would say are disasters. Just about every politician on the left, the right, and the middle would laugh at these ideas and say they would be completely unproductive and nonstarters. So it does seem that when you ask "what do you do for a living" in response to my general statement that these ideas wouldn't work (which probably around 99% of people, at least those reasonably educated about these things, would agree with) that you owe a bit of an explanation as to what it has to do with my remarks. It certainly isn't obvious.
