The Intellectual Dishonesty of the Court Majority: Ruth Marcus in the Washington Post
This recent CITIZENS UNITED decision is something that we’re likely to be discussing for some time to come, as it looks –and I really hope it’s true– that this travesty of a decision is producing a backlash that will not be quickly spent.
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Court’s campaign finance decision a case of shoddy scholarship
By Ruth Marcus
Washington Post, January 23, 2010
In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.
Many of those commenting on the decision in Citizens United v. Federal Election Commission have focused on the power-grab part. I agree with them. It was unnecessary for the court to go so far when there were several less-radical grounds available. It was audacious to seize the opportunity to overrule precedents when the parties had not pressed this issue and the lower courts had not considered it. It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process.
“If it is not necessary to decide more, it is necessary not to decide more,” a wise judge once wrote. That was Chief Justice John G. Roberts — back when — and dissenting Justice John Paul Stevens rightly turned that line against him.
As bad as the court’s activism, though, was its shoddy scholarship.
First, the majority flung about dark warnings of “censorship” and “banned” speech as if upholding the existing rules would leave corporations and labor unions with no voice in the political process. Untrue. Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by their political action committees from employees and members. This is hardly banning speech.
Second, in the face of logic and history, the majority acted as if there could be no constitutional distinction between a corporation and a human being. Untrue. The Supreme Court has long held that corporations are considered “persons” under the Constitution and are therefore entitled to its protections. For more than a century, Congress has barred corporations from making direct contributions to political candidates, with no suggestion that it must treat corporate persons the same as real ones; that prohibition stands, at least for now. The “conceit” of corporate personhood, as Stevens called it, does not mandate absolute equivalence. That corporations enjoy free-speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?
Third, misreading its precedents and cherry-picking quotations, the majority acted as if the chief case it overturned was an outlier. In that 1990 case, Austin v. Michigan Chamber of Commerce, a six-member majority came to the unsurprising conclusion that a state law prohibiting corporations from making unlimited independent expenditures from their general funds was constitutional. The court dismissed this ruling as “a significant departure from ancient First Amendment principles.” Again, untrue.
In a 1982 case, the court — in a unanimous opinion by then-Justice William Rehnquist — noted that Congress, in writing campaign finance law, was entitled to “considerable deference” in taking into account “the particular legal and economic attributes of corporations and labor organizations” and had made “a permissible assessment of the dangers posed by those entities to the electoral process.” Four years later, even as it carved out an exception for nonprofit corporations, the court reaffirmed “the need to restrict the influence of political war chests funneled through the corporate form.”
The Citizens United majority relied heavily on a 1978 case overturning a Massachusetts law that prohibited corporations from spending their own money to defeat certain referendums. But that decision specifically noted that “a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.”
Fourth, the majority bizarrely invoked the “Mr. Smith Goes to Washington” defense. Under the Austin ruling, Justice Anthony M. Kennedy argued, lawmakers unhappy with being lampooned in the movie “could have done more than discourage its distribution — they could have banned the film.” Beyond untrue. There is no scenario under which works of art about fictional lawmakers could be limited by campaign finance laws.
That the majority would stoop to this claim underscores the weakness of its case — and the audacity of the result it has inflicted on the political process.
January 28th, 2010 at 5:36 pm
It is obviously a wrong decision but I guess they picked up the idea from OTHERS, ie, that the Constiturion is actually a ‘living document’ . . appartently quite open to some remarkable interpretations .
January 28th, 2010 at 7:01 pm
The consequence could be that foreign monied interests could influence the election of candidates, in some way for devious purposes. Is it possible to reconsider and rescind the decision by the black cloakes? Mike Gravel would fire the whole lot, if he could.
January 30th, 2010 at 2:04 am
Thiom Hartmann:
“Jefferson kept pushing for a law, written into the constitution as an amendment, which would prevent companies from growing so large they could dominate entire industries or have the power to influence the people’s government.
“But Federalists including John Adams and Alexander Hamilton fought Jefferson and Madison, and when Congress finally passed the Bill of Rights it no longer contained a ban on corporations owning other corporations or monopolizing industries.
“In response to that, hundreds of states passed laws restricting and restraining corporations, which were the law of the land until the court reporter of the U.S. Supreme Court incorrectly placed in the headnotes of the Santa Clara County v. Southern Pacific Railroad case of 1886 that “corporations are persons” and entitled to the same rights as humans under the Bill of Rights.
“In a dangerous (to democracy) and growing trend, corporations have since used that error to claim human rights for themselves.
January 30th, 2010 at 2:14 am
More From Thom Hartmann
“Vice President of the United States Henry Wallace (President Roosevelt) was the first to clearly and accurately point out who the real American fascists are, and what they’re up to.
“In early 1944 the New York Times asked Vice President Wallace to, as Wallace noted, “write a piece answering the following questions: What is a fascist? How many fascists have we? How dangerous are they?”
Vice President Wallace’s answers to those questions were published in The New York Times on April 9, 1944, at the height of the war against the Axis powers of Germany and Japan:
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“The symptoms of fascist thinking are colored by environment and adapted to immediate circumstances. But always and everywhere they can be identified by their appeal to prejudice and by the desire to play upon the fears and vanities of different groups in order to gain power. It is no coincidence that the growth of modern tyrants has in every case been heralded by the growth of prejudice. It may be shocking to some people in this country to realize that, without meaning to do so, they hold views in common with Hitler when they preach discrimination…”
“The American fascists are most easily recognized by their deliberate perversion of truth and fact,” Wallace wrote. “Their newspapers and propaganda carefully cultivate every fissure of disunity, every crack in the common front against fascism. They use every opportunity to impugn democracy.”
“In his strongest indictment of the tide of fascism the Vice President of the United States saw rising in America, he added:
“They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective toward which all their deceit is directed is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection.”
January 30th, 2010 at 2:15 am
(con’t)
Finally, Wallace said, “The myth of fascist efficiency has deluded many people. … Democracy, to crush fascism internally, must…develop the ability to keep people fully employed and at the same time balance the budget. It must put human beings first and dollars second. It must appeal to reason and decency and not to violence and deceit. We must not tolerate oppressive government or industrial oligarchy in the form of monopolies and cartels.”
This liberal vision of an egalitarian America in which very large businesses and media monopolies are broken up under the 1890 Sherman Anti-Trust Act (which Reagan stopped enforcing, leading to the mergers & acquisitions frenzy that continues to this day) was the driving vision of the New Deal (and of “Trust Buster” Teddy Roosevelt a generation earlier).
As Wallace’s President, Franklin D. Roosevelt, said when he accepted his party’s renomination in 1936 in Philadelphia:
“…Out of this modern civilization, economic royalists [have] carved new dynasties…. It was natural and perhaps human that the privileged princes of these new economic dynasties, thirsting for power, reached out for control over government itself. They created a new despotism and wrapped it in the robes of legal sanction…. And as a result the average man once more confronts the problem that faced the Minute Man….”
January 30th, 2010 at 8:29 pm
“In response to that, hundreds of states passed laws restricting . . .”
beg pardon . . your slip is showing