Tuesday, February 02, 2010

FREE SPEECH AND THE SUPREME COURT: RANDOM REMARKS

It is fascinating that the First Amendment is of enormous concern today as it was to our Founding Fathers. It was not originally in the Constitution, which nearly prevented the Constitution from being ratified. Madison opposed adding it to the Constitution but in the end had to give way. To secure ratification, he had to promise that once the Constitution was ratified, it would be added, and so it was.

The Supreme Court on January 21 invalidated laws that made certain kinds of political speech by corporations a crime. Critics fear corporate corruption or a diminution of democracy or both. Thus:

"What a terrible day for American democracy. . . . [A] deeply divided Supreme Court has essentially given corporations free rein to drown out the voices of the American people, rejecting the secret democratic principle of 'one person, one vote.'"—Senator Dodd

"[W]e’re being told that an extremely vituperative expression of disdain for a candidate for president in America is criminal in America?"—Floyd Abrams

"The Supreme Court opinion refuses to acknowledge that opening the flood gates of political advertising money will skew the Congress toward obeying the narrow interests of today’s most powerful institutions: large corporations [whose impact (need we remind ourselves?) is already so large as to endanger our very planet’s financial and ecosystems]."—Paul Bernstein

Citizens United, an incorporated group, a non-profit, made a politically vituperative 90-minute film of Senator Hillary Clinton, then a presidential candidate. Citizens United wanted to promote the movie through video-on-demand by ads on TV. The Federal Elections Commission refused, and Citizens brought suit against the FEC.

The movie was vitriolic, but that’s exactly the sort of speech that is constitutionally protected, remarks First Amendment expert Floyd Abrams.

By a 5-4 decision, the U.S. Supreme Court in Citizens United v. Federal Election Commission held that corporations and unions can spend without limit under the First Amendment on electioneering campaigns.

Columnist George Will says the decision, written by Justice Anthony Kennedy, is a “landmark” decision. Columnist E. J. Dionne, Jr. says it represents the “greed of the nation’s financial barons” and “an astonishing display of judicial arrogance, overreach and unjustified activism.”

Justice Stevens in a minority dissent sees corporate contributions as a threat to democracy. Treating companies and labor unions as if they are individuals, he asserts, violates the Founders’ intentions. Corporations are not people.

Justice Scalia rebuts, arguing that the word “people” is not here mentioned. The First Amendment says, “ Congress shall make no law . . . abridging the freedom of speech.” Elsewhere in the First Amendment the word “people” is mentioned: “the right of the people to peaceably assemble.” “Omission of the word people must have been intentional,” writes Justice Scalia, “and therefore the Amendment must refer to groups,” e.g. craftsmen’s groups, business groups, social groups, church groups.

The New York Times argues that the Court’s “conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate election officials into doing their bidding.” The Times is a media corporation that was exempt from the ban on corporations under the McCain-Feingold law, so it could participate in electioneering activities, but non-media corporations alike in every respect could not.

Most newspapers take the Times’s position, says attorney Abrams. They look to see whether “democracy” is vindicated.

The President took advantage of his State-of-the-Union address on Wednesday night to air his strong disapproval of oil companies, Wall Street, health-insurance companies, and other special interests (but not the unions). He assailed the justices sitting right in front of him for the edification of the Congress and the millions watching on television.

And he added foreign corporations to domestic corporations.

“Last week,” he said, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.

He continued, “Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and, worse, by foreign entities.” Justice Alito shook his head and mouthed “not true” or “it is not true.” (Foreign corporations are not involved in this decision.)

Suddenly House Democrats, cabinet members, and Senator Schumer (D. NY) sitting right behind the Justices, rose and loudly applauded. The robed Justices sat stone-faced.

A Presidential exaggeration: It was two relatively recent, not centuries old, decisions the Court overturned. One was from 1990 and the other, the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) was overturned in part.

Corporations are now, under Justice Kennedy’s majority decision, free to show pejorative videos and TV ads in political campaigns. So can unions, whose income, bankrolled by members’ dues, may be greater than corporations’, though no one inveighs against them. In one instance, in an Oregon referendum to raise income taxes, public employee unions (on the winning yes side) spent $6.5 million, $2 million more than corporations and taxpayer advocates. That’s only one case, but half the states allow state and local electioneering by unions and corporations, says attorney Abrams, and “[w]e haven’t seen any explosion of corporate domination or union domination of the political landscape.”

The mandatory disclosure-and-disclaimer regulations of the McCain-Feingold Act remains. Justice Clarence Thomas dissented from the majority decision to the extent that it did not overturn that section, which invites threats and intimidation.


By Nattalie Sirkin
c2010
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