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David Brat, et al. v. John Roberts, Anthony Kennedy, the Koch Brothers, the Chamber of Commerce, et al.

Uh-oh, hedge fund managers and Goldman Sachs partners.  Obviously, few of you are evangelical Christians.  So this guy, who wants good markets, has his sights set on you.  But, luckily not on that carried-interest tax-benefit thing y’all get to use, praise the Lord.

So maybe you hedge-fund types can skip church again this Sunday, after all.

— David Brat’s Golden Rule, me, Angry Bear, Jun. 13

I was wrong. The dust is all but settled now, six days after Brat’s highly unexpected defeat of Eric Cantor, and it looks like what defeated Cantor was not that he was too liberal for Tea Party tastes.  It was instead that he was too Establishment-Conservative for a spontaneous, makeshift coalition of Tea Partiers, liberal Democrats (it was an open primary; it was not limited to Republican voters), and others who reject the practice–and the now-formal claim by five Supreme Court justices–that it is necessary and desirable in our constitutional democracy that legislation and other government policy be dictated by those who can afford to buy it.

Call McCutcheon v. FEC the new poll tax. I do.  After all, John Roberts, in a surprising bit of honesty, described it in his opinion for the majority as pretty much that in his opinion in that case earlier this year. “Ingratiation and access . . . are not corruption,” he wrote, quoting Anthony Kennedy’s the Court’s decision in Citizens United, and then explained:

They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

But Cantor’s constituents–the ones that Roberts says should dictate Cantor’s policy positions and write legislation he proposes–couldn’t vote in Virginia’s 7th Congressional District last week. The district is too far away for them to commute to Wall Street, or to Wichita, KS, or downtown Houstonor Raleigh, NC.  And surprisingly, it turns out that Brat actually ran what was in large part a progressive economic-populist–an anti-plutocracy–campaign highlighting who exactly Cantor’s  constituents (to borrow Roberts’ term) are.  So, now that that is being widely reported and is sinking in, hedge-fund types and the Chamber of Commerce crowd apparently indeed are starting to pray.

Apart from the obvious reason for the definitional chasm between Roberts & Co. and most people embedded in that statement by Roberts–specifically, the definition of “democracy”–add to the rapidly growing list of Roberts’ casual redefinitions of common words this new definition of “constituent,” one disembodied from residency in the candidate or officeholder’s actual election jurisdiction.

Cantor was beaten, in substantial part, it certainly appears, by Citizens United and McCutcheon–by a backlash toward the political system that is now, bizarrely but expressly, institutionalized as a matter of constitutional jurisprudence.  Turnout was very heavy, far heavier than it was in the primary in that district two years ago, when apparently all the candidates were fine, thank you very much, with poll-tax democracy.

Actually, even before I wrote my post last Friday I had read an article in the Washington Post by Jia Lynn Yang, titled “Why Cantor’s loss is especially bad news for big business,” detailing Brat’s campaign and challenging the presumption that he won mainly on a  standard-issue far-right anti-immigration, Cantor-is-too-liberal-for-the-Tea-Party platform.  But because his cliche-ridden Ayn Rand, anti-tax, anti-government-regulation positions and loopy justifications for them–which were the subject of most of my Friday post–are, let’s just say, hard to reconcile with such things as, y’know, regulation of banks and hedge funds and objections to the fact of legislation being written by the Koch brothers and the Chamber of Commerce, I figured that the initial analyses were right: Cantor was defeated because he voted to end the government-shutdown and to increase the debt ceiling and wasn’t quite hard-line enough on immigration, and therefore flunked the purity test.

particularly jarring hallmark of the current Supreme Court majority’s aggressive Movement Conservative restructuring of American law in the image of 1980s Republican Party platforms is these justices’ spontaneous, unsupported declarations of fact upon which they claim to base the rulings.  These are statements of fact for which there is no support in the case record. Facts such as what motivates elected public officeholders, and also facts about people’s opinions, perceptions, conclusions concerning matters such as the effect of huge campaign contributions on the politician-beneficiaries, that are, most people recognize, contrary to actual fact.  Most people who are not a Movement Conservative Supreme Court justice and who are not named the Mad Hatter consider the idea of large campaign contributions in exchange for legislation that they offer the very essence of political corruption in a Democratic system.

And some of those people live in Virginia’s 7th Congressional District and voted in the Republican primary there last week, for Brat, entirely or largely because he campaigned against Cantor as Evidence Exhibit A belying Kennedy’s and Roberts’ weirdly loose pronouncements of fact in Citizens United and McCutcheon.  The lobbyists and big-money donors that Cantor met with for breakfast on the first Tuesday of each month and that he dined with at steakhouses were indeed his true constituents, and Roberts’ pretense that they or their corporations reside in the Richmond, VA area is not even just a syllogism like so much else Roberts claims; it’s patently, tangibly false.

Sure, the pronouncements of fact in Citizens United and McCutcheon were just window dressing, sort of a nod to the idea that they were not really overturning Supreme Court precedent, just refining it–a John Roberts routine that has become an eye-roller.  But actual people do see through it.  As long as the Tea Party was united in going along with this, all was fine.  But now something has happened: the Tea Party itself is split.  There is a growing contingent, apparently now reaching a politically significant number, that is anti-plutocracy.

I’ve thought ever since McCutcheon was released in early April that the Democratic congressional candidates should simply read two or three sentences from that opinion at their rally and include the sentences in some of their ads.  Brat himself didn’t do that, exactly, but statements made throughout his campaign directly countered the factual claims of the Supreme Court bare-majority.

Ultimately, because that part of his message can’t be reconciled with the standard Tea Party dogma or with the part of the pro-corporate Republican message that he parrots, his political message is incoherent.  And in some respects, as in the quotes from an academic paper of his that were the main subject of my post last Friday, they’re weird and flaky. I don’t know how statements like those I quoted from his academic paper manage to pass as academic research; they were overt statements of his political and religious beliefs, not the result of economic or political science research, but they were in a purported academic paper and not (apparently) repeated in his campaign. The fact is that you can’t reconcile Ayn Rand’s philosophy of little or no regulation of corporations and Wall Street, no social safety net, and extremely low taxes with Brat’s campaign promise to represent ordinary people as against the policy dictates of oligarchy and plutocracy.  And it is a fact; you can’t.

Nor can you reconcile it with the mindless states’-rights cliches, whether issued by Anthony Kennedy and John Roberts or by David Brat.  Apart from the aggressive three-decades-long states’-rights-to-violate-fundamental-constitutional-rights-of-individuals-as-long-as-those-rights-aren’t-part-of-Movement-Conservative-dogma dogma–which is now, finally, being rejected by fairly broadly by younger libertarians (read: too young to believe that it’s still the Reagan era) even of the right–the fact is that ALEC writes swaths of legislation for Republican state legislators.

In a June 12 Politico article, this one titled “Dave Brat and the Rise of Right-Wing Populism,” the writer, Geoffrey Kabaservice, points out that Laura Ingraham, “appearing on Brat’s behalf at a campaign event on June 3, even rejoiced that ‘Some people on the left are gonna work with us! I’d rather work with some people on the left today than work with some people in the GOP establishment who scorn us.’” The article’s subtitle is “Cantor’s loss isn’t about immigration or personality. There’s a bigger story.”

There certainly is.  And several similar articles make the same point, in detail. One, titled “Why Big Business Fears the Tea Party,” a June 15 Politico article by Michael Lund, says:

The primary election defeat of House majority leader Eric Cantor by the little-known Tea Party conservative David Brat has shocked business and financial elites as well as politicians and pundits. Conservative intellectuals such as Tim Carney have been arguing for a while that the right should adopt a new populism that targets “crony capitalism” and the collaboration of public and private elites at the expense of workers and small businesses. Brat is the first conservative candidate to have achieved a major electoral success by taking this line. He denounced Cantor for being too close to Wall Street and K Street, explained business support for immigration reform as a ploy for cheap labor and demonized the Chamber of Commerce and the Business Roundtable.

In his views about the minimum wage, Social Security and Medicare, Brat is a fairly conventional libertarian, but he became the first candidate to oust a sitting House majority leader since the post was created in 1899 not by speaking the libertarian argot of Ayn Rand and Friedrich von Hayek but by deploying the populist language of Thomas Jefferson, Andrew Jackson and William Jennings Bryan.

With that kind of talk, Brat and like-minded militants on the right are undermining the philosophy of market populism that has united the Main Street and Wall Street wings of the Republican party since the days of Barry Goldwater and Ronald Reagan. Market populism recycles the ideology of classic Jeffersonian populism—but expands the definition of the virtuous, self-reliant yeoman to include not only small business owners but also big business executives and capitalists.

“Sooner or later,” Lund continues, “the authentic Jeffersonians in the market populist coalition were bound to notice that the actual agenda of conservative politicians has less to do with the needs of small business owners and small farmers than with the desires of big companies and the financial industry.”  They’ve now noticed, he says, and want to swap business-friendly market populism for real populism, terrifying the business community.  And also terrifying Lund, who points out that conservative populists have the wrong answers, and that Jeffersonian populism is irrelevant in America and has been for a very long time.

Yes, for a very, very long time.  The theme that ties together the contradictory parts of Brat’s brand of populism is its inherent fallacy: the claim that what matters is not the goal or effect of the particular policy but instead whether it is the federal government that is promulgating the policy. Most people outside the rightwing bubble recognize this as ridiculous, at least when you are specific about the policy. Including so-called working-class whites under the age of about 36 (i.e., milliennials, few of whom listen to rightwing talk radio and what the national Fox News shows); a new, comprehensive poll confirms this. And also confirms that, increasingly, older Rust Belt blue-collar whites, too, recognize this.

Additional post-Cantor-defeat articles illustrate the point. In one, called “A Cantor Effect for Businesses and the G.O.P.,” published in the New York Times on June 14, the writers, Jeremy W. Peters and Shaila Dewan put together a list of similarities between what is increasingly referred to as the Elizabeth Warren wing of the Democratic Party and rightwing economic and civil-liberties populism, and a list of where the two groups diverge (very substantially) on economic issues.  The left’s economic populism isn’t libertarian.  The goals of economic populism–however much they state as their goal bringing economic power back to ordinary people–can’t be achieved through the anti-federal-government mantras of the right.

Which is a fundamental reason why we are heading, at a fast pace, into a progressive political era that is, in most respects, the very antithesis of the legislative agenda thinly disguised as constitutional law pushed so obsessively by five of the nine Supreme Court justices, for whom it will always, always, be 1988.

Only the federal government can regulate the financial industry–not only hedge funds and banks but also credit card companies, the latter two groups which were gouging small businesses as well as consumers to their heart’s content before legislation was enacted during the first two years of the Obama presidency, by a Democratic Congress, circumscribing those practices.

Only the federal government can regulate the student loan industry.  Only the federal government can provide the states with funding to support state university systems sufficiently to render those institutions once again financially accessible to the non-upscale.

Only the federal government can provide healthcare coverage to the elderly, and a secure, if small, pension benefit.

Only the federal government can provide the vast sums for extensive long-term medical and other scientific research. Or did.

On point after point–those, and many others–it is the liberal position, not the Koch position or the Brat position, that has support from vast majorities of the public.  Most people want clean drinking and bathing water and clean air, the dramatic slowing of climate change, safe consumer and food and pharmaceutical products, national parks, public walking trails, endangered species saved, public schools that are competitive with those in other advanced economies.  Most people want safe highways and bridges and modern, efficient infrastructure.  Most people believe that the federal government should play a role in enabling efficient export trade.

Most people don’t want generic clichesgibbergish banalities, and non sequiturs by public officials and candidates–a point made by Matt Bai in another post-Brat-victory analysis and, pre-election, by astute local reporters covering that campaign. So many people are so very tired of that.  But that is necessity in a political system whose real constituents are–as John Roberts said–those who play outsized roles in funding political campaigns.  Out of the mouths of Movement Conservative justices claiming to speak for the Republic’s founders.

Brat, for his part, appears to be about to run a general-election campaign consisting mainly of slogans and non sequiturs.  No surprise, of course; slogans, cliches, non sequiturs are the very essence of the current Republican Party–both factions of the Tea Party/Republican Party.  The Paul Ryan/Koch brothers/Chamber of Commerce faction and also, because of the mutual exclusivity of its premises, the (newly named) David Brat faction. That’s simply the nature of this beast.

But the divorce case originally known as Movement Conservatives v. Movement Conservatives, filed June 10, 2014 in the Richmond, Virginia Court of Public Opinion, is a class action.  I just checked the docket for the case, and it’s now called Movement Conservatives, et al. v. Movement Conservatives.  And already, there have been several amicus briefs filed on behalf of the petitioners.  And the Supreme Court may not decide the outcome of it after all.

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Now That the Supreme Court Has Found a Right to Vote in the First Amendment, Are State Laws Denying the Vote to Convicted Felons Unconstitutional? You Betcha.

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

— The REAL News From the McCutcheon v. FCC Opinion, me, Apr. 3

Actually, I had thought the most basic right in our democracy was the right of states to violate individuals’ constitutional rights as they chose, courtesy of the fundamental constitutional principle of states’ equal sovereignty.  So my post and its title were intended as facetious.  But then AB reader Alex Bollinger reminded me in a comment to my post that Antonin Scalia had written in his concurrence in Bush v. Gore that the Constitution contains no generic guarantee to the right to vote.

I mean, sure, the Fifteenth Amendment says:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

But those Reconstructionist types who drafted and ratified that Amendment hadn’t checked with James Madison before presuming that there was a right of citizens of the United States to vote.  And, more important, they hadn’t checked with Roger Taney.

In any event, Scalia, by joining Roberts’ opinion in McCutcheon, now agrees that the Constitution indeed guarantees a right to vote.  It does so in the First Amendment, which James Madison participated in drafting!  And which Roger Taney probably approved of.  (Whew!)

While that first sentence in McCutcheon doesn’t directly identify the First Amendment as the source of the right to participate in electing our political leaders, elsewhere in McCutcheon the First Amendment is expressly credited as guaranteeing that right.

I realized that this morning when I read Linda Greenhouse’s op-ed in today’s New York Times in which she pretty much sums up John Roberts along with McCutcheon.  She writes:

It wasn’t until the Roberts court’s Citizens United decision in 2010 that the court shrank the definition of corruption to quid pro quo bribery. To assess the implications of that shift, it’s important to remember what Citizens United was about: not direct contributions, which remain prohibited to corporations, but independent spending. In the Buckley decision and since, the court has accorded greater First Amendment protection to independent expenditures than to direct contributions, which it has viewed as more tightly linked to the anti-corruption rationale and thus properly subject to tighter regulation. To say that only quid pro quo corruption can justify a limit on independent expenditures was not to similarly limit the rationale for regulating direct contributions, the subject of the McCutcheon case.

But in his McCutcheon opinion, Chief Justice Roberts collapsed the distinction between the two, extending Citizens United’s narrow definition of corruption to direct contributions. The government “has a strong interest,” he wrote, “in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.” Justice Stephen G. Breyer’s dissenting opinion called the chief justice out on this maneuver, but in vain.


Greenhouse’s main focus in that op-ed is Roberts’ ridiculously transparent pretenses to judicial minimalism, in McCutcheon and in his opinion last year striking down the key section of the Voting Rights Act case on the fundamental constitutional principle of states’ equal sovereignty introduced in 1885 by Chief Justice Taney in Dred Scott v. Sanford, and dormant since the Civil War began in 1861 until last year.  What Roberts actually is doing, as I wrote here in a series of posts, and as Greenhouse makes clear, is effectively rewriting the standard for judicial review of federal and state laws so that it’s now simply a game of sophistic, sleights-of-hand analogies and of redefinitions of common words and phrases.

Earlier this week, in what I thought would be my final post on that subject, I suggested that liberals should plan to pick up that Supreme-Court-can-now-casually-repeal-statutes-it-doesn’t-like ball and run with it, once they regain a 5-4 majority on the Court.  I said that there were several statutes that I could think of offhand that would be good candidates for this, including some that actually are unconstitutional, not necessarily as written but as the current Court majority has interpreted them, and as an example I cited the Federal Arbitration Act, which as it happens, is the law at issue in another article in the New York Times today: This one. (H/T Dan Crawford.)

And aren’t some of those anti-labor-union sections of Taft-Hartley unconstitutional?

But more immediately–and deadly seriously–I see no even-remotely logical ground upon which the state statutes that remove the franchise from convicted felons can survive McCutcheon’s statement that even corruption, other than that of the direct, explicit quid pro quo variety, cannot be limited, because we must ensure that the government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them.  Remember: This prohibition is in election-law statutes, not in criminal-sentencing statutes, which shouldn’t, but could, make a difference.  I hope challenges to those state laws begin soon.

Greenhouse points in her op-ed to a passage in McCutcheon in which Roberts justifies the de facto overruling of a part of Buckley v. Valeo, the first post-Watergate Supreme Court opinion that addressed campaign-finance law, by saying that, well, Buckley concerned another federal statute, not McCain-Feingold, which was enacted in 2002–and since Buckley, the Court’s conservative majority has partnered aggressively with usual-suspect Conservative Legal Movement lawyers and groups to rewrite First Amendment jurisprudence as a deregulation juggernaut.  Regulatory statutes that crowd doesn’t like but can’t repeal through the legislative process can be struck down as violations of the First Amendment!  Call it playing the First Amendment card.

Which of course could butt up against the fundamental constitutional principle of states’ equal sovereignty.  But which, in light of McCutcheon, would look like pure partisanship, concerning state election laws that deny the vote to convicted felons. Which may not matter.

As I suggested in another post this week, liberals and libertarians can play the McCutcheon First Amendment card in another respect: pushing for legislation (or an SEC rule) that would prohibit publicly-traded corporations to from making political expenditures–and, eventually, direct campaign contributions–unless the corporation first gets approval from a majority of shareholders.  As I pointed out in that earlier post, a passage from McCutcheon itself seems to imply that the First Amendment right of citizens to choose who shall govern them is a right of personal choice that, Citizens United notwithstanding, cannot be co-opted derivatively without intentional delegation.

I ended that post by saying that the conservative majority’s petards can hoist only so much before shrapnel lands so visibly in unintended places that it becomes impossible to hide it.  And, who knows? Maybe I’m right.


*Cross-posted at The Law of the Jungle.

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Can the SEC prohibit publicly-traded corporations from making political expenditures (and, eventually, direct campaign contributions) unless the corporation first gets approval from a majority of shareholders?

It’s already become something of a favorite parlor game among liberals, especially among liberal law geeks, to speculate about when the Supreme Court will strike down state and federal statutes that prohibit corporations from making direct campaign contributions to candidates and political parties. In Citizens United, the court killed statutory bars to corporate and union political so-called-independent expenditures, and, in McCutcheon, removed aggregate limits to human beings’ direct contributions to candidates and parties.  But, for now, state and federal laws prohibiting direct corporate and union contributions–some of these laws dating back to the early part of the last century, as I understand it–remain intact.

To the surprise of some (but not me), the Court refused last week to hear a challenge by an incorporated nonprofit political organization.  The most obvious likely reason that they declined is that, as a public relations matter, it simply is too soon after McCutcheon for them to take this step in what everyone by now recognizes as a juggernaut.

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What the Supreme Court’s refusal today to agree to decide whether to strike down the federal statute that bars corporations from making contributions directly to candidates and political parties might suggest about the outcome of Hobby Lobby

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

– John Roberts, McCutcheon v. FEC, Apr. 2, 2014

My reaction when I read that last: OMG! You mean it’s finally occurred to Roberts and Kennedy that CEOs of publicly-held corporations don’t actually necessarily share the same political views as all those other members of these “associations of citizens” from whom the CEO, er, the corporation, derives its First Amendment speech rights?  (And religious rights, too, although that’s another case, isn’t it?)

Actually, that was a comment I posted to a Slate article last week about McCutcheon that included the above quote from that opinion.  The religious-rights cases I had in mind were, of course, the Hobby Lobby Stores v. Sebelius and Conestoga Wood Specialties v. Sebelius, the for-profit-corporation ACA-contraceptive-mandate cases, which were argued at the court on Mar. 25.

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My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.

When [U.S. Solicitor General Donald] Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights.  Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?”  Verrilli said no, but Alito had made his point.

Argument recap: One hearing, two dramas, Lyle Denniston , SCOTUSblog, reporting on this morning’s Supreme court argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius

That paragraph was one of two in Denniston’s recap that dismayed me, albeit only momentarily. Unquestionably, a threshold issue in these cases is whether or not the proverbial corporate veil–a shorthand legal term that conveys that the very purpose of the state-created corporate structure is a severance of the rights and liabilities of corporations from those of its shareholders–can be “pierced” in order to allow the shareholders in these two closely-held corporations to confer to the corporation their personal legal right of religious exercise under the First Amendment or under a federal statute called the Religious Freedom Restoration Act, the latter which expressly uses the term “person” to identify its beneficiaries.  I addressed this in detail in this post here yesterday.

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What to look for in tomorrow’s Supreme Court arguments in the Hobby Lobby/Conestoga Wood ACA-contraception-coverage cases

[The] conception of corporate personhood has profound and beneficial economic consequences. It means that the obligations the law imposes on the corporation, such as liability for harms caused by the firm’s operations, are not generally extended to the shareholders. Limited liability protects the owners’ personal assets, which ordinarily can’t be taken to pay the debts of the corporation. This creates incentives for investment, promotes entrepreneurial activity, and encourages corporate managers to take the risks necessary for growth and innovation. That’s why the Supreme Court, in business cases, has held that “incorporation’s basic purpose is to create a legally distinct entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

In recent constitutional law cases, however, the justices seem to have forgotten this basic principle of corporate law. In Citizens United, the court effectively held that corporations enjoyed the same free speech rights as ordinary individuals. Contrary to popular belief, however, the court did not base that holding on the idea that corporations are people. Instead, the justices said that corporations are “associations of citizens”—and those citizens who make up the corporation have constitutional rights.

Yes, Corporations Are People. And that’s why Hobby Lobby should lose at the Supreme Court., Adam Winkler, Slate, Mar. 17

Among the inundation of articles about Sebelius v. Hobby Lobby Stores, Inc.  and Conestoga Wood Specialties Corp. v. Sebelius in the months since the Supreme Court agreed to hear these cases–one, Hobby Lobby, in which the corporation won in the lower appellate court, the other, Conestoga Wood, in which the corporation lost–there are very among the ones I’ve read that make what I think is the critical point about these cases: the critical interplay between the Citizens United opinion and these two cases, and the reason why. It’s a point I made (or tried to) in a post on AB last fall, but Winkler is a constitutional law prof. at UCLA and, according to his mini-bio at the end of his slate article, he’s writing a book about the constitutional rights of corporations, so I was happy to read the paragraphs I quote above in an article published on a mainstream-media website.

For all the jokes about corporations attending church or being bar mitzvahed–yes, I plead guilty, but writing that post was so much fun!–the fact is that the corporations in those cases claim not that they are people but instead that they derive their First Amendment right to the free exercise of religion not from the state’s grant of corporate status but rather from the constitutional rights of its shareholders.  This argument–that corporations’ constitutional rights are derivative of their shareholders’ constitutional rights and therefore are not limited to, say, protecting the property that the corporation itself owns or to the ability to enter into business contracts on behalf of itself–comes courtesy of Citizens United, pure and simple.  Hobby Lobby and Conestoga Wood, unlike Citizens United, are for-profit corporations.  They both also are closely held, rather than publicly traded, corporations, and in both cases, the shareholders (members of a single family, in each case) are parties to the lawsuit along with the corporations themselves.

Mitt Romney’s ill-fated pronouncement that corporations are people, my friend, was funny, but it actually was an inarticulate adoption of Citizens United’s actual declaration: that corporations are “associations of citizens” whose members, as human individuals, have the familiar panoply of constitutional rights. One obvious problem with this derivative-constitutional-rights thing, though–albeit a problem that the Citizens United majority didn’t acknowledge–is that the individual shareholders of at least publicly-traded corporations don’t all hold the same political views.  Some shareholders are shareholders by virtue of participation in  large mutual funds, and others by dint of ownership in pension funds.  Some of them even in public-union pension funds!

Then again, at a recent oral argument at the Court in a case that, although it’s not an ACA  or religion case, I believe has implications for these two cases, Samuel Alito suggested that public unions are unconstitutional as a violation of … something. (Of his political views, I think.) If he prevails on this when that case, Harris v. Quinn, is decided, that would eliminate the problem of Democrats who are contributors to public union pension funds having Republican CEOs of mega-corporations serve as proxies to derivatively exercise the pension-fund contributor’s First Amendment speech rights. But the fact will remain that Democrats–who, contrary to Fox News reports, are people, my friend–have been known to own stock in large corporations, directly or through mutual funds or pension funds or some such.*

A seminal part of Citizens United, in other words, is its conflation of the CEO’s constitutional rights with those of the corporation’s–er, association’s–other citizens. The corporation itself may not be a person, my friend, but it derives its First Amendment rights from one (only one) of its citizen members.  Or, at least, only that one member serves as proxy on the derivative rights. (If the CEO is not a citizen, he or she can still serve as proxy for human members who are.) But what the plaintiffs are arguing in Hobby Lobby and Conestoga Wood is that these corporations derive their constitutional rights from all of these associations’ members: the family members who comprise the entire membership of this association of people.

The title of the Winkler article says that corporations are people.  By which he means, they are indeed associations of citizens.  Associations of citizens (and, probably, non-citizens) that, for purposes of healthcare insurance coverage, include the corporation’s employees. What Citizens United means in saying that corporations are associations of citizens is that the shareholders comprise an association of citizens whose proxy, for constitutional-rights purposes, is (apparently) its CEO.  But Citizens United did not address whether this association of citizens is necessarily limited to shareholders.  If corporations have constitutional rights derived from its individual members because they are associations of citizens, and if the association of citizens includes, by definition, employees as well as shareholders (no green-card holders or foreign shareholders allowed!)–and under Citizens United, there is no reason why it shouldn’t–then the act of incorporation itself confers derivatively to the corporation the constitutional rights of its employees.  Who have the constitutional right to have the same benefits of the ACA as similarly situated employees of other corporations.

Okay, my eve-of-oral-argument hunch is that the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.  The Court will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.  That’s because, well, apparently a slew of other associations of citizens–e.g., the business community at large–are making it known, including in amicus briefs to the court, that they’re downright scared to death of this end-to-the-corporate-veil/corporations-are-groups-of-citizens (who can be held individually responsible for their for-profit association’s liabilities) thing.

Or maybe they’re just scared to death at the thought of ExxonMobil or Amazon marauding through their towns bearing AK-47s in exercise of their derivative Second Amendment rights. It could be time for some for-profit associations of citizens to pray.


*Paragraph edited after publication to correct a cut-and-paste error and to add the name of the referenced Supreme Court case, Harris v. Quinn.

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The Kosher Butcher Who Was Not a Person Until He Incorporated Himself*

Religious liberty, [Tenth Circuit Court of Appeals] Judge Tymkovich wrote, cannot turn on whether money changes hands. “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” he asked.

Court Confronts Religious Rights of Corporations, Adam Liptak, New York Times, today

Why, yes, Judge Tymkovich, of course an incorporated kosher butcher really would have a claim to challenge a regulation mandating non-kosher butchering practices.  But that’s because the kosher butcher also is an actual human and was one even before he incorporated himself, er, his butcher shop.

The butcher would have a claim as, um, the butcher–Ira Greenberg, human being, exercising his religious right to use kosher-butchering practices to kill his own food, and his religious right to obtain kosher meat in order to limit his meat eating to kosher.  He also would have a due process right to practice his trade and make a living, unencumbered by an utterly arbitrary and irrational prohibition (or, to use legal formality, a prohibition that has no legitimate governmental interest). And Ira Greenberg Kosher Meats, Inc., would have a similar due process claim, a constitutional claim that, unlike campaign-contribution claims or free-exercise-of-religion claims, could be invoked legitimately by a corporation, because it, unlike political contributions and religious practice, actually would concern the right to operate as the sort of business that it is.

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Fodder For a Great Blog Post


I received the following email from Dan Crawford last evening:

Fwd: Blog Post Idea: SCOTUS Must Protect Free Speech in Ohio and Beyond

Is this interesting?

———- Forwarded message ———-
From: Kristen Thomaselli <>
Date: Wed, Sep 11, 2013 at 6:25 PM
Subject: Blog Post Idea: SCOTUS Must Protect Free Speech in Ohio and Beyond


I wanted to share an oped from this weekend’s Wall Street Journal that I thought you might find interesting ( and pasted below).

It’s by Brad Smith, a former chairman of the Federal Election Commission, and it focuses on one man’s fight in Ohio to exercise his First Amendment right to speak freely about political issues in his community. In his piece, Brad calls on the Supreme Court to accept this important case, as it could have huge ramifications for Americans’ First Amendement rights — and states’ efforts to deprive them of those rights.

Few people know more about these issues than Brad, so his piece is quite instructive — and could provide fodder for a great blog post.

Please let me know if you have any questions — or if you end up writing about Brad’s        piece!

All the Best,

Kristen Thomaselli
(202) 471-4228 ext. 101

Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime
How one Ohio man’s blog on politics got him in trouble with campaign-finance law.

By Bradley A. Smith

In the winter of 2008, Ed Corsi decided that he was tired of stewing about the politics in his home of Geauga County, Ohio, and the country at large. He started a website, put Thomas Jefferson’s quote, “The price of freedom . . . constant vigilance” at the top, dubbed the site “Geauga Constitutional Council,” and set about blogging his thoughts on local and national politics. So began his life of political crime.

Over the next two years, Mr. Corsi and a few friends would sometimes gather to talk politics. He occasionally sponsored meetings featuring speakers (not political candidates) on public policy issues (not elections), and charged a nominal fee for seating to offset his costs. He and two friends passed out political pamphlets they made at the Geauga County Fair.

Mr. Corsi spent $40 a month to maintain his website, and perhaps a couple hundred dollars a year in other expenses. According to the state of Ohio, however, these activities are illegal under campaign-finance laws because Mr. Corsi did not first register with the state, report to the state on his activities, and subject himself to the regulations governing the operation of a state political action committee.

When he was summoned to a hearing before the Ohio Elections Commission in April 2011, Mr. Corsi asked, “Do I have to hire a lawyer to [do] these things?” Commission Chairman Bryan Felmet replied, “Yeah, I guess so. I think that it’s very complicated without going to those lengths.” The commission ordered Mr. Corsi to register and report his activities to the state.

When the Supreme Court reconvenes in October, the big campaign-finance case will be McCutcheon v. Federal Election Commission, which nervous censors have dubbed “the next Citizens United.” McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates. Never mind that the candidates and causes these people support represent the views of millions of citizens. “Reformers” argue, and many Americans seem to agree, that “big money” in politics must be regulated.

It is inconceivable, however, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.

The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics-the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.

On his blog, Mr. Corsi was critical of Ed Ryder, the chairman of the Geauga County Republican Party and a member of the county Board of Elections, and of various officials and candidates supported by Mr. Ryder. The initial complaint against Mr. Corsi was filed by Mr. Ryder, who admitted spending two months to find out who constituted the “Geauga Constitutional Council,” so he could file a complaint against Mr.Corsi.

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

Most state statutes now simply ignore the Supreme Court and require that two or more citizens who spend even nominal amounts on politics to register and report to the government. Even printing yard signs or running an email list can trigger these requirements. In Ohio, a single dollar in expenditures will do, so be careful if you talk politics over a cup of coffee.

As a former commissioner at the Federal Election Commission, I have seen the effects these laws have on citizen participation and civic-mindedness. I have read the plaintive letters from citizens who could not afford a lawyer, and could not believe their government was fining them for political activity.

In the past, both liberals and conservatives on the Supreme Court were sensitive to this problem. Liberal Justice William Brennan wrote the majority opinion in the Massachusetts Citizens for Life case. But that sensitivity appears to be vanishing.

Forty-seven years ago, in Mills v. Alabama, the court struck down a lawprohibiting election-day newspaper editorials, noting, “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”

Is that still true? Will the court leave millions of Americans who want to engage in politics at risk of prosecution? Will it leave Mr. Corsihanging?

Mr. Smith, a former chairman of the Federal Election Commission, is a law professor and chairman of the Center for Competitive Politics, which is representing Mr. Corsi at the Supreme Court. 

Hmm.  Happy to oblige, Kristen.

Yes, this is very interesting.  Especially because Smith’s piece actually focuses on one man’s fight in Ohio to misconstrue Ohio campaign-finance law as impinging upon his right to speak freely about political issues in his community.  Or as having anything to do with his right to speak freely about political issues in his community.

Or maybe it’s really about one high-profile Washington, D.C. lawyer’s longstanding anti-regulatory, anti-campaign-finance laws crusade.  Bradley Smith, a former chairman of the FEC upon appointment by George W. Bush, is a longtime rightwing, anti-regulation crusader.

Which may be why he says in that piece that McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates, rather than that McCutcheon deals with the ability of affluent Americans to contribute as much as they wish to political parties and candidates.

Or maybe it’s just that factual accuracy is not his forte.  He did, after all, baldly misrepresent in the op-ed that the IRS targeted conservative political groups, but not liberal ones, for harassment, saying, “The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.” Since actually the IRS used its power to try to prevent misuse of exemption regulations by liberal as well as conservative groups, that statement is merely the most prominent falsity in Smith’s article.  But maybe the Ohio Elections Commission, unlike the IRS, would target only Republican social welfare groups. Hurray!  Apparently Ohio law doesn’t exempt  social welfare groups such as Mr. Corsi’s.

In any event, the issue in McCutcheon is whether it is unconstitutional for government to place any limits at all on campaign contributions directly to parties and candidates, not whether affluent Americans can be barred from contributing to parties and candidates within the same amount limitations as everyone else.

What is Smith’s forte, apparently, is the artful sleight of hand, the use of the non sequitur as sophism.  Which may be why he claims that because the candidates and causes that, say, the Koch brothers want to financially sponsor represent the views of millions of citizens, the Koch brothers should be allowed to pay for millions of dollars of TV ad buys in order to try to persuade millions of other people to vote for these candidates.

Why, of course, David Koch should serve as campaign proxy for the minimum-wage Walmart employees he wants to enlist in his cause of lowering the Kochs’ income tax and eventual estate tax obligations, of disassembling the social safety net, of keeping the minimum wage at $7.40 an hour, and of ensuring the continuation of Chamber of Commerce control of the entire federal and most state judicial systems!  The Kochs are altruists!  The Walmart employees can’t pay millions of dollars in campaign contributions for TV ads that will convince them to vote Republican, so the Kochs will do that for them!  (Tautologies are another Smith specialty, apparently.)

It may well be inconceivable, as Smith claims, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations.  But the government does not routinely require citizens to report their political activity; it requires them to report–or rather, requires those to whom they give monetary support in election campaigns–to report that funding, so that those whose votes are solicited as a result will know who, exactly, is soliciting their vote.

And as for those complex regulations, anyone who complains about that should try instead to navigate, say, the federal court system as a non-corporate and non-wealthy litigant.  It’s unlikely that America’s founders, or at least the Framers of the Reconstruction Amendments, thought the Constitution would allow the government to methodically turn the civil, criminal and habeas judicial processes in this country into bureaucratic regulatory labyrinths navigable only by rightwing crusaders, Chamber of Commerce members, others who can retain $1,000-per-hour “name” counsel, and state and local governments (dignity for states, except the ones that enact affirmative action programs!); no one else need apply.

Who knew that Rube Goldberg was a Federalist Society member?

And, while I do recognize that the Framers thought it fine that the right to vote be limited to the landed gentry and others who could afford to pay a steep poll tax, I’m not sure they actually had campaign contributions in mind when they drafted the First Amendment’s speech clause.  Nor do I recall learning in Civics class that George Washington, et al., thought corporations are people, my friend.  But maybe I was absent from school the day of that lesson. Or just didn’t attend Mitt Romney’s, Anthony Kennedy’s or Bradley Smith’s elementary school alma mater.

Unlike Mr. Smith, who, I guess, did.  Which is nice for the Fab Five members of the Supreme Court.  Mr. Smith, who went to Washington long ago, already has provided them the first draft of their opinion in the Corsi case.  Justice Scalia will join his four other fair-weather dignity-of-the-states-crusading colleagues in striking down the Ohio statute, just as the five of them summarily struck down a Montana one last year, before he returns, briefly, to indignant-umbrage posture at the very suggestion that courts should strike down duly enacted legislation. Briefly is a very safe bet; there is, after all, another Obamacare challenge heading toward the Supreme Court.  Not to mention the likelihood of another state-university-admissions affirmative-action case, surely soon.

I hope Ms. Thomaselli likes this blog post.  If not, I can beef it up a bit.  Trust me.

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Out of the Mouths of Hypocrites: Scalia Says Citizens United Was Wrongly Decided.

Yes, that’s right.

Scalia said Citizens United was wrongly decided.

He said it yesterday, at the argument on the constitutionality of California’s Prop. 8.  He also said that the right to bear arms doesn’t, after all, preclude the federal government and the states from enacting gun-ownership restrictions as they wish, so the recent Court opinions holding otherwise were decided incorrectly.  And we now know that the Court will uphold Texas’s college-admissions affirmative action law as constitutional and that Scalia will join in the opinion.  

Here’s the lengthy exchange between him and Ted Olson, the lawyer for the same-sex couples who challenged the constitutionality of Prop. 8:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we  decide, right? We don’t prescribe law for the future. We — we decide what the law is. I’m curious, when -­when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -­
JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?
MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it -­ JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.


JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -­

MR. OLSON: Because the case that’s before you -­

JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?

MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.

CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?

MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this -­ marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.

JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow
civil unions?

MR. OLSON: We do, we submit that. You could write a narrower decision.

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -­

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -­

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

MR. OLSON: But what I have before you now, the case that’s before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that -­ that marriage gives them. It — it is — it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.

“Baker”–as in, “Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?”–refers to a 1972 case called Baker v. Nelson, which, as Linda Greenhouse explained last week in a terrific column in the New York Times, involved a challenge to the constitutionality of Minnesota’s bar to same-sex marriage was unconstitutional.  Under a federal statute that was repealed in (I believe) 1986 at the specific request of William Rehnquist, the Supreme Court was required to consider all cases involving federal constitutional issues in which the immediate lower court was a state (rather than a federal) court of appeals.  So in Baker, the Court summarily ruled in a pro forma single sentence without briefing, much less oral argument, that the case failed to raise a substantial question of federal law.  I.e., there was no constitutional right of same-sex couples to marry.

Which leads me right into a question that I hope the Dem-appointed justices ask in their dissents in Fisher v. University of Texas, the affirmative action case argued at the Court earlier this term: When, exactly, did it became unconstitutional for a state university to consider race in its admissions process?  1791? 1868, when the Fourteenth Amendment was adopted? Some time after Bollinger v. Grutter in 2003, when although the Court did say the issue presented a substantial question of federal law, the Court also said that race was, like other criteria beside academic qualifications (such as regional demographics and such as “legatee” considerations), constitutionally permissible?

And I hope that the next time a state such as Montana enacts a stringent campaign-finance law, Scalia himself will ask the Koch brothers, or the Citizens United organization, or whoever is the named* plaintiff in the case, when exactly such laws became an unconstitutional violation of the First Amendment’s speech clause. 1791? 1868, when the Fourteenth Amendment was adopted? Was it sometime after 1912, when Montana enacted the statute that the Supreme Court last June summarily held was unconstitutional under the Citizens United opinion, which was not issued shortly after 1781 or 1868 but instead in 2010?

These are easy questions.  The lawyers for the challengers of these laws should have an easy time answering them. The answer, of course, being that “originalism” can be, and is, turned on and off like a water faucet by those who subscribe to it as a legal theory when the weather is fair.

*Oh. dear. There was a really funny typo in that sentence originally: “naked plaintiff,” instead of “named plaintiff.” I probably should have left it that way.

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Did Scalia Pointedly Hint At A Major Limitation To Citizens United? (No need for the Disclose Act, because Citizens United itself requires disclosure?)**

I think Thomas Jefferson would have said the more speech, the better.  That’s what the First Amendment is all about. So long as the people know where the speech is coming from. … You are entitled to know where the speech is coming from — you know, information as to who contributed what.

— Justice Antonin Scalia,responding to interview questions by CNN’s Piers Morgan about Citizens United, Jul. 18

Antonin Scalia, bless his heart, is on a book tour, which he kicked off yesterday in an interview with Piers Morgan of CNN.  The online and print headlines, predictably (both substantively and procedurally, as lawyers would say), mostly read along the lines of “Scalia Says He Had No ‘Falling Out’ With Chief Justice” (Adam Liptak, New York Times) and “Scalia says no ‘falling out’ with Roberts” (Jesse Holland, Associated Press).  Well, of course that would be the attention-getting subject of the interview.  (Procedurally.)  And, of course Scalia’s had no lasting falling out with Roberts. (Substantively.)

And, of course that would be the subject of the headlines and the opening paragraphs of news reports on the interview.

But these headlines and opening paragraphs bury the lede.  Which is that the Disclose Act, which would require disclosure of the identity of all contributors to purportedly-independent campaign-expenditure groups, and of the amounts contributed—the enactment of which congressional Republicans keep blocking—is, it turns out, unnecessary.  As the Times’ Liptak notes, the proposition that “[y]ou are entitled to know where the speech is coming from — you know, information as to who contributed what” is actually part of Citizens United itself; eight justices (all but Thomas) endorsed this in that case, as a rule of First Amendment law.  The First Amendment right of the Koch brothers and the Chamber of Commerce and ExxonMobil to make “independent” campaign expenditures via nonprofit tax-exempt “social welfare” advocacy groups depends upon disclosure not just that the nonprofit tax-exempt “social welfare” advocacy group paid for the ad but also that the Kochs, the Chamber of Commerce, and ExxonMobil donated a specified amount to the nonprofit tax-exempt “social welfare” advocacy group.*

So sorry, Karl Rove.  But such is life.

Or at least it will be, sometime before the November election, I think.  Because all that is necessary now for this disclosure to be compelled is for the Obama campaign, or the DNC, or the campaign of any Dem candidate who’s being attacked in “independent” campaign ads—or, for that matter, even the news media—to file lawsuits invoking none other than Citizens United, asking the courts to order the disclosure of that information.  Because of the shortness of time before the election, and because of the obvious relevance of this to the November elections—and because this is purely a legal issue, requiring very little factual record—this would proceed through the courts very quickly.

Liptak also mentions Scalia’s invocation of what even Scalia surely knows is a pretty porous defense of Citizens United:
Mr. Morgan argued that spending may be regulated because it is not speech.

Justice Scalia responded that money facilitates speech and suggested that it would be unconstitutional to tell a newspaper publisher that “you can only spend so much money in the publication of your newspaper.”

Mr. Morgan said that was different, as “newspaper publishers aren’t buying elections.”

Justice Scalia said that “newspapers endorse political candidates all the time,” adding that “they’re almost in the business of doing that.”

Yes, indeed; they almost are in the business of doing that.  But the most jaw-dropping, and mocked, part of the Citizens United opinion is its out-of-nowhere—and clearly false—statement of fact upon which the opinion’s outcome relies: The five justices said they “find” as a matter of fact that unlimited “independent” campaign expenditures gives rise neither to corruption nor to the appearance of it, and therefore the First Amendment free-speech interest trumps the interest in allowing statutory limits on these expenditures.  This is, in other words, not like falsely shouting “Fire” in a crowded theater.  Or like inciting to riot.  Or like …. 

The New York Times and the National Review endorsements and commentary don’t operate as de factobribes, real or perceived by the public.  Nor does anyone other than Scalia and his four cohorts pretend to think so.

About that independent-expenditures-give-rise-neither-to-corruption-nor-to-the-appearance-of-it thing, among those whose opinions the justices neglected to ask were the seven current justices on the Montana Supreme Court, and those justice famously begged to differ with the Citizens Unitedmajority on that point last December, in a case about a longstanding Montana campaign-expenditure statute.  Six to one, they upheld the constitutionality of the Montana statute.  The seventh justice dissented because of Citizens United’s clear mandate, but trashed the finding of fact as clearly false.

On June 25, the Citizens United majority summarily reversed the Montana Supreme Court.  In a dissent joined by Ginsburg, Sotomayor and Kagan, Stephen Breyer acknowledged that the four dissenters could have forced the Court to have a full hearing on the case—full briefing and an oral argument—next term.  But, he said, there would be no point to it, as the majority had made clear in discussing the Montana case that no member was willing to reconsider any part of the Citizens United ruling, including the ridiculous finding of fact.

It’s not hard to recognize the likelihood then that both Kennedy—the author of Citizens Unitedand apparently the force behind the deeply controversial decision by the majority to raise, on their own, the issue of the constitutionality of centerpiece of the McCain-Feingold statute rather than to just strike down the minor section of the statute the challengers had challenged as unconstitutional—and Roberts, who allowed this stunningly inappropriate judicial role, understand by now that, at least from the prospective of a vast majority of the public, the Citizens United-created status quo is simply untenable. 

There appears to have been some horse-trading there, forced by the minority, who agreed to not force a full hearing in the Montana caseAmerican Tradition Partnership, Inc. v. Bullock, thus relieving the majority from having to defend its indefensible finding of clearly-false fact.  And in return, the majority agreed to interpret Citizens United as mandating meaningful disclosure rather than just gimmicks for effective nondisclosure.  And to do so informally, with enough time before this November’s election for it to actually matter.*
As someone who believes that the current system results in actual corruption and certainly the appearance of corruption, I think the minority got the better of the deal.

In any event, I don’t see how, in light of Scalia’s straight-from-the-horse’s-mouth public statement, lawsuits requesting immediate injunctive relief compelling disclosure could be legitimately denied.  

*Obviously, this is speculation on my part. [Added Wed. at 11:36 a.m.]

**CORRECTION: Turns out that I was confusing super PACs with nonprofit tax-exempt “social welfare” advocacy groups. (No surprise, I guess; I’m neither an election-law specialist nor a tax-law specialist.)  So I’ve changed “super PACs” to “nonprofit tax-exempt ‘social welfare’ advocacy groups.”  This matters only because super PACs already have to disclose their donors. Nonprofit tax-exempt “social welfare” advocacy groups don’t, and so the Disclose Act targeted the latter but not the former in this respect.  The Disclose Act also, though, would have required certain disclosures in each ad itself, whether the ad was sponsored by a super PAC or a “social welfare” advocacy group. [Corrected Fri. at 6:38 p.m.]

UPDATE: Hmm.  Here’s an article from the Sunlight Foundation published on July 13 about the Disclose Act.  The article suggests that super PACs do indeed legally hide the identity of their donors.  [Fri. at 8:37 p.m.] [Ah. There’s the link; I didn’t put the link in last night when I posted the update.]

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