Tuesday, January 26, 2010

Contra Courant


The Hartford Courant is frightened – very frightened. And it wants you to be frightened too. What spooked the paper is a U.S. Supreme Court decision in Citizens United v. Federal Election Commission that prevented lower courts from slicing and dicing the First Amendment.

Of course, the Courant does not fashion its editorial in these terms. There would be no profit in it, no fright factor.

The 5-4 decision, the Courant writes, is “lamentable; it sweeps away a century of “practice and precedent” and allows “torrents of corporate money to flood elections threatens to make our political system even more the playground of the rich at the expense of the average citizen.”

The paper calls upon President Barack Obama and the U.S. Congress to “do all they can to temper or reverse the baleful impact of the decision by the court's conservative majority.”

It is the possible results of the decision rather than the decision itself, left unexamined in the Courant’s breathless editorial, that has disturbed the editorial page writers at the paper: “As a result of the decision in Citizens United v. Federal Election Commission, corporations have a right to spend as much money as they want — right up to the point the polls open — to advocate for or against a specific candidate. Could a Sen. Smith or a Congressman Cooper possibly refuse to play ball with the corporate big spenders? Not likely.”

The actual decision, written by Justice Kennedy, by no stretch of the imagination a conservative, is a boon to First Amendment rights, though one would never guess it by reading the Courant’s broadside.

One must commend the paper for its lofty indifference to an issue that directly concerns it. Such dispassion in the matter of First Amendment rights is remarkable in a publication that in the past has been in the forefront in aggressively pursuing freedom of speech issues not only for itself but for other organizations huddled under the Constitutional provision that says: “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The question before the court was whether federal campaign finance laws applied to A CRITICAL FILM about Senator Hillary Clinton that would have been shown in shown in theaters and on-demand to cable subscribers had it not been censored by an earlier court. The majority opinion stated that the earlier court decision violated First Amendment rights, and the Supreme Court struck down the decision.

The U.S. Supreme court decision struck down the provision of the McCain-Feingold Act that prevented corporations—for-profit and not-for-profit—and unions from spending freely from their own treasuries in the final days of political campaigns. The decision completely overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2002). The decision upheld the requirements for disclaimer and disclosure by sponsors of advertisements, and the ban on direct contributions from corporations or unions to candidates, in part IV.

It is important to notice 1) that the Supreme Court decision does not affect the ban on direct contributions to candidates, and 2) that the oldest law struck down by the court was established in 1990, which falls considerably short of the "century of practice and precedent" the Courant claims was swept away in its decision. The court struck down the provision of the McCain-Feingold Act that prevents corporation, for-profit and not-for-profit, and unions from spending freely from their own treasuries in the final days of political campaigns.

The court struck down the whole of Austin v. Michigan Chamber of Commerce and partially overruled McConnell v. Federal Election Commission because it had at long last realized that portions of McCain-Feingold were destructive of First Amendment rights, a perception that has not yet been grasped by editors at several of the nation’s top media outlets.

Before the Supreme Court correction, a superior court had ruled that it was legal and proper to ban a DOCUMENTARY – decidedly partisan, but not more so than the last few anti-Bush, anti-corporate documentaries produced by Michael Moore – from being shown a month before an election. Had the Supreme Court left the law untouched, BOOKS could have been banned under it auspices.

The court, in other words, saw the skiff of the First Amendment about to crash on the rocks of McCain Feingold and ordered a directional change over the heated objections of the New York Times -- and now the Hartford Courant.

The central perception around which opposition to the Supreme Courts restoration of First Amendment rights pivots is this: If unions and corporations are permitted to exercise their First Amendment rights one month before an election, vast oceans of money will be unleashed and elections will be decided by corporations.

A close examination of any election prior to 1990 would dispel this horror. If the statement were true, no president prior to 1990 who did not bear on his skin the mark of Satan – “owned by corporate entities” – could ever have been elected president. For that matter, no populist Democrat would ever have been elected to Connecticut’s 1st District, a position now held by John Larson, hardly a tool of the United States Chamber of Commerce. And even under the new dispensation, Larson has nothing to fear but fear itself.

According to campaign finance data, businesses tend to outspend unions. In the 2007-2008 cycle, businesses spent $1.96 billion, while labor and other interest groups spent $673.47 million. However, much to the chagrin of some Republicans, corporations have since 1990 almost evenly divided their contributions, 49.4 percent toward Democrats and 50.6 percent toward Republicans. Union political spending is more party focused. In the same period, labor unions gave 92 percent of donations to Democrats, while just 8 percent went to Republicans.

On the face of it, the fear that President Barack Obama will be swept out of office in his second term owing mostly to the recent Supreme Court’s decision is laughable. And in preferring laws and provisions ruinous to First Amendment rights over laws that hobble corporations a month before elections, the Courant has sold its First Amendment birthright for a mess of dubious pottage.
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