Law postsTuesday May 22, 2012
Corporations United: A Summary of Jeffrey Toobin's Must-Read Citizens United Article
Jeffrey Toobin has a warning for you, me, all of us.
The staff writer for The New Yorker, and author of the book “The Nine: Inside the Secret World of the Supreme Court,” has written an article that encompasses not only the history of the Citizens United decision, but, as important, the intersection of money and politics and corporations in U.S. history. His conclusions are chilling but none more so than Justice Anthony Kennedy’s actual argument writing for the majority in Citizens United:
“The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.”
The voices that best represent the most significant segments of the economy? Corporations. Because corporations don’t have enough of a voice in our society.
No, it’s because corporations are people, or have been viewed as such by the U.S. Supreme Court since 1886 and the Santa Clare County v. Southern Pacific Railroad case, when Chief Justice Morrison R. Waite handled the matter summarily: “The court does not want to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution . . . applies to these corporations,” he said. “We are all of opinion that it does.” Done and done.
Ah, but in 1907 Congress passed the Tillman Act, which barred corporations from contributing directly to federal campaigns. Toobin calls it, “a first step toward what Congress described as its goal: elections ‘free from the power of money.’”
A second step occurred with the Federal Election Campaign Act Amendments of 1974, passed in the wake of the Watergate scandal, which created much of our familiar regulatory structure. Toobin: “The law imposed unprecedented limits on campaign contributions and spending; created the Federal Election Commission to enforce the act; established an optional system of public financing for Presidential elections; and required extensive disclosure of campaign contributions and expenditures.”
The court’s decision in Buckley v. Valeo (1976), parsed this law, distinguishing between expenditures and contributions. It argued that you could not restrict expenditures, since money was like speech, and speech was protected under the First Amendment, but you could place limits on contributions. Thus Ross Perot or Michael Bloomberg could spend however much of their own money to get elected; but they could only contribute so much to help someone else get elected.
Citizens United upended all of this. It obliterated the McCain-Feingold law, which the Rehnquist court had upheld in 2003. And it didn’t have to. The Supreme Court, and Chief Justice John Roberts in particular, picked it to do just this.
Initially, Citizens was about a narrow matter within McCain-Feingold: whether an anti-Hilary Clinton documentary, “Hilary: The Movie,” created by a non-profit, political organization called Citizens United, an organization which was itself created by the man who helped produce the Willie Horton ad that helped elected George H.W. Bush president in 1988, could be shown on television in the month before a primary or election in order to influence that primary or election. Such a viewing, as interpreted by the FEC, was forbidden under McCain-Feingold. The people behind Citizens United sued, and hired former Solicitor General Ted Olson (Bush v. Gore) to argue their case before the court.
In March 2009, Olson argued the case “as applied” (i.e., dealing with the specifics of this case, and hoping for a narrow, favorable ruling) as opposed to “on its face” (dealing with the entire law). But the Roberts court had the majority to upend the entire law, so Roberts ordered the case re-argued in the fall. And it was. And it swept aside not only McCain-Feingold but the 100 years of protection of the Tillman Act.
Here’s Justice John Paul Stevens, a moderate Republican appointee, in his 90-page, angry dissent:
“We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees...
“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
Toobin writes: “It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, was reshaping American politics.”
Read the whole thing here. It’s necessary reading if we're ever going to become citizens united.
Chief Justice of the U.S. Supreme Court John Roberts (right).
Imaginary Conversations with Justice Scalia
SCENE: U.S. Supreme Court Building, March 2012. EL, friend of the court, and, really, lots of folks, tells the court an individual mandate is essential for the health insurance market to work.
JUSTICE ANTONIN SCALIA: Why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant. Not everybody needs a liver transplant. I mean. . . Could you define the market? Everybody has to buy food sooner or later...
EL: Some of us sooner. Some of us more often.
SCALIA: ...so you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.
EL: “But you can't make them eat it.” I believe George H.W. Bush said that.
SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principled basis?
EL: There's a more principled basis for distinguishing the health care markets from other markets than there was in distinguishing Florida from other states in Bush v. Gore, but some institution or other, which shall remain nameless, did that very thing. Here are some words from that decision: “Our consideration is limited to the present circumstances.” Does that help you with this case? Now eat your broccoli.
John Paul Stevens Quote: Rasul, Hamdan, and Bouemediene
"Still, the summit of Stevens’s achievements on the bench came during the Bush Administration, in the series of decisions about the detention of prisoners at Guantánamo Bay, and he kept for himself the most important of these opinions. In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush’s war on terror—and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime—Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge’s dissent in the Ahrens case—which he himself had helped write, fifty-six years earlier...
"Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration’s plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions...
"Stevens’s repudiation of the Bush Administration’s legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.
"After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens’s opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that 'the Executive is bound to comply with the Rule of Law.'"
--from Jeffrey Toobin's article "After Stevens" in the March 22nd issue of The New Yorker
John Paul Stevens Quote: Where Have All the Flag Burners Gone?
Stevens’s Second World War experience also played a part in perhaps his most anomalous opinion as a Justice. In 1989, he dissented from the decision that protected the right to burn the American flag as a form of protest. 'The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach,' he wrote in an unusually lyrical dissent. 'If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection.'
"'The funny thing about that case is, the only consequence of it—nobody burns flags anymore,' Stevens told me. 'It was an important symbolic form of protest at the time. But nobody does it anymore. As long as it’s legal, it’s not a big deal. You just don’t have flag burning.'”
--from Jeffrey Toobin's article "After Stevens" in the March 22nd issue of The New Yorker
John Paul Stevens Quote: Ruth's Called Shot
"On a wall in Stevens’s chambers that is mostly covered with autographed photographs of Chicago sports heroes, from Ernie Banks to Michael Jordan, there is a box score from Game Three of the 1932 World Series, between the Yankees and the Cubs. When Babe Ruth came to bat in the fifth inning, at Wrigley Field, according to a much disputed baseball legend, he pointed to the center-field stands and then proceeded to hit a home run right to that spot. The event is known as 'the called shot.'
“'My dad took me to see the World Series, and we were sitting behind third base, not too far back,' Stevens, who was twelve years old at the time, told me. He recalled that the Cubs players had been hassling Ruth from the dugout earlier in the game. 'Ruth did point to the center-field scoreboard,' Stevens said. 'And he did hit the ball out of the park after he pointed with his bat. So it really happened.'
"Stevens has a reverence for facts. He mentioned that he vividly recalled Ruth’s shot flying over the center-field scoreboard. But, at a recent conference, a man in the audience said that Ruth’s homer had landed right next to his grandfather, who was sitting far away from the scoreboard. 'That makes me warn you that you should be careful about trusting the memory of elderly witnesses,' Stevens said. The box score was a gift from a friend; Stevens noticed that it listed the wrong pitchers for the game, so he crossed them out with a red pen, and wrote in the right names.
—from Jeffrey Toobin's article "After Stevens" in the March 22nd issue of The New Yorker