erik lundegaard

Tuesday 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).

Posted at 08:41 AM on Tuesday May 22, 2012 in category Law  
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