Sunday, January 24, 2010

Adding Journalistic Injury To Judicial Insult

In yesterday's post, I said first impressions of Supreme Court rulings often create false impressions. A commentary by a nationally syndicated Chicago Tribune columnist is a good example. It spreads two misconceptions. First, that Thursday's decision somehow grants corporations a long-denied ability to speak. And second, that many if not most corporations will not exercise this supposed newfound freedom for fear of alienating customers.

The first misconception shows a profound lack of understanding of both the decision in Citizens United v. FEC as well as practical reality. You need look no further than the national health care debate or recent Wisconsin Supreme Court elections to see how ridiculous it is to suggest that corporations have not had a voice in national or state political affairs. What the court did is give corporations an even louder and more dominant voice. That five out of nine members of our nation's highest court concluded that corporations were not being adequately heard in the marketplace of ideas in this country is truly jawdropping.

The second misconception is based on a terribly naive notion of how corporations will react to the Citizens United decision. It is highly doubtful that the likes of Goldman Sachs or WalMart or Microsoft will sponsor their own campaign ads. But that doesn't mean they will sit on the sidelines. They will send their money to associations like the U.S. Chamber of Commerce, which will do the electioneering for them. Currently, neither federal nor state disclosure laws are sufficient to allow voters to know which corporations will be bankrollling all the election ads. Unless changes are made to those disclosure laws, companies need not worry about angering their customers or even their shareholders.

As I continue to reflect on what will rank right there with the Dred Scott decision as one of the darkest moments in the history of the U.S. Supreme Court, I can't help but wonder if all this is giving any pause to fans of appointed judges who would like to do away with state judicial elections. It will be hard for them to look honestly at this current court and not see how blatantly political it is and how the Citizens United decision was the handiwork of hard-line ideologues who are so obviously tools of wealthy special interests.

Not that we learned anything new Thursday about Chief Justice John Roberts, for example, but he certainly confirmed suspicions that he is a conniving liar who was willing to bear false witness to Congress to secure an appointment for life. After all, Roberts pledged allegiance in his confirmation hearings to the principle of stare decisis, latin for "stand by the decision," meaning courts are bound by previous decisions and what Roberts himself called "settled" law. It is hard to imagine more well-established precedents or more settled laws than those Roberts and his allies just overturned in Citizens United. By this brazen act of judicial hypocrisy, the chief justice further cemented his growing reputation as one of the most radical activists ever to sit on the high court. What will law professors tell their students? How will they teach stare decisis with a straight face?

Anthony Kennedy showed himself to be intellectually double-jointed. He wrote in Caperton v. Massey that huge sums of money spent in election campaigns can violate the Due Process Clause in the Constitution and deny a fair trial to those who face big campaign spenders in court. Then he turned around in Citizens United and wrote this:

"(W)e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

And this:

"The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."

Kennedy offers no evidence and points to nothing in the case record to support these conclusions. He's just sure.


Nancy Swan said...

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Anonymous said...

Ok then! We'll just let Soros and the union bosses do their thing. Million upon millions -- perhaps billions! Haven't heard anything about them. (Those who are really crooked). At least Corporations are 95% above board. But we'll just examine the 5% bad ones (that every profession has -- ministers, teachers, priests, accountants, doctors, dentists, you name it and there are bad apples in every barrel).

Mike McCabe said...

The Supreme Court's ruling not only allows corporations to spend even more freely on elections, it also allows unions to spend more freely. This decision is very good for organized money, and very bad for ordinary citizens.

clyde winter said...

There is no comparison between the amount of money and power wielded by multi-national corporations and that available to the U.S. labor movement (not to mention the individual citizen). So the practical effect of this U.S. Supreme Court ruling is to further increase and consolidate the almost absolute domination of government in America by huge corporations. (Besides that, the leaders of organized labor are selected on the democratic principle of one person, one vote, whereas the leaders of multi-national corporations are selected on the anti-democratic principle of one dollar, one vote, and most of those votes are usually cast by other corporations, not people, and not necessarily U.S. citizens.)

This "Citizens United v. FEC" ruling represents the final "Strike Three" against the U.S. Supreme Court.

"Strike One" was "Santa Clara County v. Southern Pacific RR Corp." (1886), when a Gilded Age Supreme Court stupendously asserted (despite the clear intent of Congress) that corporations have all the rights that living persons have to due process and equal protection of the law, under the 14th Amendment.

"Strike Two" was "Buckley v. Valeo" (1976), when Rehnquist became Chief Justice, and the Supreme Court startlingly ruled that the employment of huge sums of money to influence the outcome of elections and the policies enacted by government officials, was protected under the Constitution as "free speech", thus introducing the ignoble principle of legalized bribery to governance in America.

Strikes One and Two eventually rendered the everyday American citizen virtually without a voice, and without effective access, in what should be our government, and has made the hard-won universal vote almost a mockery of the sacrifices made to win, protect, end extend the American Revolution and the drive through history for democracy and a government that is of, by, and for the people.

Strike Three, in 2010, is so devastating of our basic rights to government of, by, and for the people, means that it is now our turn to swing the bat. NO ONE will swing it for you. Just keep your eye on the ball and take a nice cut.

Brad V said...

Ordinary citizens are often part of "organized money."

Donna Horowitz Richards said...

What happens to our recent victory in Wisconsin? Does that still stand?

Mike McCabe said...

Last week's court ruling has no bearing on the Impartial Justice bill creating publicly financing state Supreme Court election that was passed by the Legislature and signed into law by the governor. That still stands.

The legislation (SB 43) closing the "issue ad" loophole that was passed by the state Senate on January 19 is affected by the ruling. The bill is by no means dead, but will have to be changed somewhat before it can go forward. Discussions are already underway about how to adapt it in the wake of the Supreme Court decision. We will be pushing hard in the weeks to come for its passage.