Friday, January 22, 2010

Power-Elite 5, Democracy 4

I wasn't going to post about the Supreme Court's decision yesterday to allow corporations to spend unlimited amounts of money in the election process, but my Tweet generated some interest, so why not lay out the "cataclysmic change" that lies ahead.

The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.

“We have got a million we can spend advertising for you or against you — whichever one you want,’ ” a lobbyist can tell lawmakers, said Lawrence M. Noble, a lawyer at Skadden Arps in Washington and former general counsel of the Federal Election Commission.

It is expected to unleash a torrent of attack advertisements from outside groups aiming to sway voters, without any candidate having to take the criticism for dirty campaigning. The biggest beneficiaries might be well-placed incumbents whose favor companies and interests groups are eager to court. It could also have a big impact on state and local governments, where a few million dollars can have more influence on elections.
I don't think we should cue REM's classic just yet, but to pretend this decision yesterday won't alter the political landscape in this country is foolish.

I'll leave it for both political parties and their emissaries to hash out the political fallout (although I think the president nailed it when he said, "It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans,").

Instead, I want to focus on the convoluted reasoning that led five justices on the Supreme Court to rule that corporations should now be considered "human beings" under the 1st amendment.

From the majority (J. Kennedy) in the ineptly named Citizens United v. FEC (2010):
As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. See Morse v. Frederick, 551 U. S. 393, 403 (2007).
LOL. If you recall, the Morse decision was the "Bong Hits for Jesus" case where the Court said the 1st amendment did NOT apply to adolescents exercising free speech on school grounds. I suppose adolescents should now try and incorporate. But anyway...
Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems.

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. The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”
Ah, but they are now, and quite extensively referred to as such throughout the long majority opinion (at 57 pages, including an additional 23 pages of concurrences, it's up to you to read the rest). Basically, while it's true that corporations have enjoyed 1st amendment protections in the realm of what a corporation is designed to do (i.e. its business), they have never been allowed the same political speech rights as "human beings." Until yesterday.

Said John Paul Stevens, in a dissent even longer than the majority:
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 mayconflict in fundamental respects with the interests ofeligible voters.

If taken seriously, our colleagues’ assumption that theidentity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. It would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans. Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.
Absurd, you say? What would stop corporations from demanding the "right to vote," especially since they are now considered human beings with the same 1st amendment rights in the political process that you and I enjoy?

Here's a thought: if corporations are now considered to be human beings, does that mean we can start prosecuting white-collar crime in the criminal justice system instead of the civil system?

I would encourage you to wade through the opinions because there is much at stake here. The congress could try and overturn this decision via the legislative process, but its effects will be felt for years to come.

Suggested other reading (from people far more knowledgeable about the 1st amendment and election speech): SCOTUSblog, SL&P, WaPo, NYT.

UPDATE: More on "activist judges" and how the Roberts Court may end up rivaling (or exceeding) the Warren Court in judicial activism.

1 comment:

Jay Livingston said...

I think the Bong Hits kid was not on school property at the time. I guess a high school student is not even close to being a "natural person."