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Supreme Court faces pressure to reconsider Citizens United

Lifted from an e-mail by Beverly Mann in response to an inquiry of mine on a Washington Post article:

Hi Dan. The key paragraphs in a Washington Post article earlier this week, called Supreme Court faces pressure to reconsider Citizens United ruling say:

The Supreme Court has already blocked the Montana decision, and the justices may simply set their counterparts in Helena straight by summarily reversing the finding. But pressure is being applied — by members of Congress and nearly half the states, not to mention Justices Ruth Bader Ginsburg and Stephen G. Breyer — to at least let Montana make its argument.

The Montana Supreme Court acknowledged a conflict when it voted 5 to 2 to uphold the state law, created by voters in 1912 to combat the power of the so-called Copper Kings who controlled state politics. It said the state’s characteristics, including a dependence on agriculture and mining and low campaign costs, made it “especially vulnerable” to corporate control.

Those urging the court to grant a full hearing of the Montana case take aim at the most important finding of Citizens United. That was the declaration in Justice Anthony M. Kennedy’s majority opinion that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

“That cannot be so,” the new bipartisan team of Sens. John McCain (R-Ariz.) and Sheldon Whitehouse (D-R.I.) told the court. “Whether independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system; it is a factual question, not a legal syllogism.”

The court under Chief Justice John G. Roberts Jr. has incrementally undermined McCain’s landmark campaign finance act by saying it doesn’t meet First Amendment requirements. McCain has in turn been dismissive of a court — without a single member who has ever run for public office — that he says is hopelessly naive about how campaign finance affects the political process.

The most stunning part of the Citizens United opinion was that declaration of fact was made out-of-the-blue and that most people recognize is plainly false. I wrote about this a couple of times on AB, including last January, shortly after the Montana Supreme Court issued its opinion.

I think that, although the rightwing majority would love to just summarily reverse the Montana Supreme Court on the basis of that declaration of purported fact in Citizens United, they’re under enough pressure now to not do that; the dissents from any such opinion would be devastatingly scathing and would get a lot of attention. I think they’ll agree to hear the case, and will schedule the oral argument for after the election. I think that, when they do decide the case, the wingnut majority probably will say that, whether or not “independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system,” the First Amendment interest in “free speech” outweighs it.

But, who knows? Another possibility is that they’ll say that their opinion in Citizens United stated that it was based on the presumption of transparency about who is actually funding these Super PACs, and on the basis that, supposedly, these Super PACs do operate independently of the candidates’ campaigns, and that unless both of these presumptions actually are true, laws like Montana’s are constitutional.

And Beverly added later:

In my opinion, the only newsworthy part is the amicus brief from McCain and Whitehouse, because of MCain’s participation and because these two senators are saying that as a matter of fact the Citizens United opinion’s declaration of fact is erroneous, and that they, not the justices, have the actual facts. That’s the argument made by Montana’s attorney general, but having two senators say outright that in their experience, the Supreme Court’s statement of fact is flatly wrong is a big deal. But I don’t have any more insight into what will happen than what I wrote in the email and what’s in the Washington Post article.  

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The Supreme Court’s corporate monsters–if money buys them "free speech" rights, can it help them avoid giving others human rights?

by Linda Beale

The Supreme Court’s corporate monsters–if money buys them “free speech” rights, can it help them avoid giving others human rights?

The Supreme Court decided in Citizens United that corporations could intevene to influence elections–giving money and aide to their selected candidates. This was an inordinate broadening of corporate “personhood”, claimed to be necessary under the warped First Amendment precedents of the Supreme Court that count “money” as speech and thus consider that limitations on money spent to influence elections as a limitation on speech.

Yet most economists and tax professors argue against the corporate tax–which has been in place longer than the individual income tax–on the grounds that taxes distort and that the claimed “double taxation” of corporate income distorts the allocation of capital. See, e.g., Tax Foundation, 2004 paper on integrating corporate and personal income taxes; seminal 1985 integration piece from NBER. Much of the argument boils down to an a prior assumption that “only people can pay taxes.”
(Of course, we used to think that only people could engage in campaign speech or bribe politicians for quid pro quo policies or otherwise influence the course of society. We were naive.)

As a result of this “received wisdom” about economics and corporate taxes–mostly based on the mathematically correct but practically challenged Chicago School approach to understanding economic systems (by assuming away most of the real world, including life, death, and everything in between)– corporate lobbyists and their allies in Congress have been pushing for decades to eliminate corporate taxation through integration of the corporate and individual tax schemes or at a minimum to drastically reduce the liability of corporations for federal income taxes.
Every presidential candidate has one scheme or another to reduce corporate taxes, with even Obama falling prey to the continuing influence of the Wall Street facilitators like Timothy Geithner in the Treasury and Larry Summers. See Citizens for Tax Justice, President’s Framework Fails to Raise Revenue (pointing out that there is no reason not to fix the loopholes in corporate tax to help address the deficit without having to lower corporate rates, and noting that although Obama at least called for making his rate reduction framework for so-called corporate tax reform revenue neutral, his plan fails to raise about a trillion dollars to make up for the corporate taxes that it gives up). As CTJ notes, many organizations have called for the opposite–to raise revenues from corporations that have been paying very little in taxes, especially since the 2003 Bush “reforms” that granted most of the items on corporations’ wish list for tax cuts.

Last year, 250 organizations, including organizations from every state in the U.S., joined us in urging Congress to enact a corporate tax reform that raises revenue. These organizations believe that it’s outrageous that Congress is debating cuts in public services like Medicare and Medicaid to address an alleged budget crisis and yet no attempt will be made to raise more revenue from profitable corporations. Id.

Nonetheless, most candidates call for making the corporate income tax territorial and thus making it even more lucrative for US multinationals to move more of their corporate businesses (and jobs) abroad. Most call for reducing the rates on corporations to a historically unprecedentedly low level–making it even more likely that the US trade deficit and corresponding budget deficit will continue to grow, even at a time when these self-nominated fiscal “conservatives” are claiming that the current deficit requires monumental sacrifices from ordinary people in the way of reduced medical care and old age security (the effort to cut back drastically on the benefits payable under Medicare and Social Security).

Most treat the owners of corporate equity as though they were some kind of revered engine of growth, when in fact they are usually merely rich people who are interested in reaping as high a profit as possible from sales of corporate shares but very little interested in entrepreneurship, and as likely to engage in quick trades (the profits of which go into their pockets and not into the working capital of the corproations) as to hold long-term based on analysis of corporate business fundamentals. Most don’t accompany their form of integration with eliminating the category distinction between capital gains and ordinary income.

Most “corporate reform” plans call for continuing most of the absurd provisions that have larded the pockets of corporate management over the last few decades, such as

  • accelerated depreciation and expensing (including all the depletion allowances for the heavily subsidized oil and gas extractive industry, even while it complains about the petty little incentives put in place in recent years for environmentally sound energy generation–accelerated expensing creates “phantom” deductions that reduce taxable income well below economic profits), and
  • the “research & development” credit, which was first enacted as a stimulus that was to be in place for a very short period of time but has been extended in fits–even retroactively for several years–as corporations demand making every single “stimulus” tax break they get permanent.

(As readers of this blog know, I see little merit in the R&D credit. Corporations can already deduct way too much “phantom” expenses–excess interest expense that allows them to operate with too much leverage, facilitating equity firm buyouts by leveraging up the purchased entity to pay off the equity strippers. Further, as with so many of the GOP’s favorite programs of tax subsidies for multinationals and the upper crust, it hasn’t bothered to conduct studies to see if the R&D credit indeed results in more research done in this country. Clearly, a retroactively enacted credit does NOT incentivize research.

Probably the times it’s been enacted without being retroactive haven’t either–it takes extensive labs and equipment to do research, and such labs and equipment have to be purchased far ahead of when they pay off. Most of the R&D that the credit supports is likely to be of the “tweak-a-patent” variety that seeks merely to find a way to extend a monopoly profit from a particular profit–something the patent law should frown upon.)
So the drumbeat for lower corporate taxes–at a time when corporations are paying less as a proportion of GDP than they did in the time of our most sustained economic growth–continues unabated from the right joined by only slightly less enthousiastic accompaniment at the White House and think tanks like the Tax Policy Institute.

Meanwhile, the Supreme Court, having anointed corporations with a kind of personhood that lets them intervene in elections even though they have no vote, has taken for consideration a case that challenges the rights of individuals to hold corporations accountable as people are held accountable for human rights violations. The case is Kiobel v Royal Dutch Petroleum (2d Cir. 2010), in which Nigerian plaintiffs seek to hold Royal Dutch/Shell liable for violating the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, which upholds international norms of human rights.

The Second Circuit held that US courts cannot entertain such suits, holding that jurisdiction under the Alien Tort Statute against corporations requires an international norm approving sanctioning corporations for torts and that requires more than the mere fact that most countries treat corporations under their domestic law as capable of committing torts. The court in the Second Circuit opinion makes a point much like economists tend to make about taxes–essentially implying that “only people commit heinous acts”.

From the beginning, however, the principle of individual liability for violations of international law has been limited to natural persons—not “juridical” persons such as corporations—because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an “international crime” has rested solely with the individual men and women who have perpetrated it. Second Circuit in Riobel.

While people are the “deciders” of corporate decisions, nonetheless the corporate form permits corporations to engage in conduct that individuals alone cannot engage in–from amassing huge resources to carrying out massive enterprises that pollute and steal human dignity. To ignore that reality of corporate wrongdoing, especially in an age that has anointed corporate personhood with rights that seem furthest from ones that corporate entities should be permitted to enjoy, would be folly.

For further discussion of the implications of the case, see Peter Weiss, Should corporations have more leeway to kill than people do?, New York Times (Feb. 24, 2012).
Suffice it to say that this case raises the specter of full-blown corporatism overtaking the entire U.S. economic and social system. If the Supreme Court accompanies its “personhood for free speech/election intervention rights” with “not people so can’t be touched for human rights violations”, there will be even fewer ways to hold multinationals accountable, and they will forge even stronger relationships with autocratic dictators who treat their citizens like slaves and their environments like garbage pits. Meanwhile corporations will continue to intervene in our elections at will (usually the will of their ultra-wealthy managerial class), using the extraordinary power of the resources at their command.

We will all be the worse for any decision that would allow multinationals to expand their quasi-sovereign rights without saddling them with a strong obligation to comply with international norms respecting human rights. Rights without obligations are invitations to corruption.

crossposted with ataxingmatter

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Super pacs disclosures

OMB Watch notes some figures on Super Pac spending:

Outside groups are spending nearly 1,300 percent more on broadcast advertising for the 2012 election than they did in 2008, according to an analysis released on Jan. 30. This is the clearest demonstration yet that Citizens United v. Federal Election Commission has fundamentally rewritten the rules for political spending.

The Jan. 31 disclosure reports filed by independent expenditure-only political action committees – typically referred to as “super PACs” – contained few surprises: super PACs have been raising, and spending, dizzying amounts of money in an attempt to influence the 2012 elections. In fact, these more than 300 “independent” (that is, “not coordinated” with a candidate or political party) groups have accounted for more than 40 percent of all the broadcast ads aired during the Republican presidential primaries, as compared to only three percent of the 2008 ads.

While candidates are vying to attract the support of a broad swath of voters, the super PACs endorsing them are funded almost entirely by very few, very wealthy donors. For example, more than 80 percent of the $17.9 million dollars collected by the super PAC supporting (but not connected to or coordinated with) Mitt Romney’s campaign came via six-figure contributions. Five other super PACs supporting Newt Gingrich, Ron Paul, Rick Santorum, Rick Perry, and Jon Huntsman showed a similar pattern. Winning Our Future, a pro-Gingrich super PAC, received $10 million from just one couple.

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Corporate Leveraging of Campaign Contributions Under Citizens United

Last week, Dan posted what had been an email message I sent him in response to a link he’d sent me to an article by Thom Hartmann on Truthout about the Supreme Court’s infamous Citizens United opinion.  The key (consecutive) paragraphs of Hartmann’s piece, which I quoted in my email/post, were:

Most Americans don’t realize that the idea that “corporations are people” and “money is speech” are concepts that were never, ever considered or promoted or even passed by any legislature in the history of America. Neither were they ever promoted or signed into law by any president – if anything, the opposite, with presidents from Grover Cleveland in 1887 to Barack Obama in 2010 condemning them.

And Congress and the executive branch are the two of the three branches of government that are elected by the people, and thus the only two to which the founders of this country and the framers of the Constitution gave the right to create laws.

The Supreme Court is so much not supposed to create law, that Article 3, Section 2 of the Constitution even says that it must operate “under such Regulations as the Congress shall make.”

I said there are two problems with what Hartmann’s arguments—arguments that are being made by many others as well who are appropriately outraged by Citizens Unitedand earlier corporate-free-speech Supreme Court opinions. 

One problem, I wrote, is that there needs to be an explicit distinction made between the idea of “corporate personhood” in law, generally, and “corporate personhood” in a constitutional-rights sense.  I said that Hartmann and the others who have adopted this position, including the drafters of the current proposed constitutional amendment to negate Citizens United by declaring corporations non-persons, clearly intend that this apply only to the corporate-free-speech Supreme-Court-created laws.

I said that the “corporate personhood” fiction actually was created, I believe, simply as a practical way to allow corporations to own property, and that eventually that fiction enabled corporations to sue and be sued, to be subject to criminal laws and civil regulatory law and to be charged with violations of those laws and to be fined for violations and required by court order to comply with (say) a particular environmental or securities regulation or whatever.  I noted that state statutes, which provide for the creation of corporations, and federal statutes, which recognize corporations as legal entities, do provide for these things.  And although they don’t use the term “corporate person,” these laws (e.g., tax laws, environmental laws, lawsuit procedural laws) do include corporations in the statute’s “definitions” section, in defining the term “person,” in order to make clear that the statute or regulation does apply to corporations.

I then made the point that the problem of corporate personhood is not that the law, either statutory or court-created, treats corporations as legal entities that have legal rights and obligations, but instead that the Supreme Court has pronounced corporations “persons” for purposes of First Amendment speech rights.  Constitutional rights, I explained, apply only to persons.  In order to accord corporations First Amendment rights, the Court had to declare them persons—not mere legal entities in a statutory sense (as in say, corporations can own property), but persons—in a constitutional sense.  This, I said, is a really important distinction.

And it is.  A really important distinction. 

The distinction gets complicated, though, I said, when you consider that there are some constitutional rights that most people would think do and should pertain to corporations: the Fourth Amendment’s guarantee against warrantless searches and seizures, and the Fifth and Fourteenth Amendments’ due and property “takings” provisions, for example.  But that’s because actual people do own direct monetary shares of corporations, and so corporate property does belong to real people, and because the constitutional protections at issue there—against warrantless searches and seizures of documents, for example—would compromise those rights of real persons (the corporation’s employees or customers, for example).

In other words, to the extent that the corporation—or union, or nonprofit political organization (the iconic example in legal opinions being the NAACP)—has constitutional, rather than mere statutory, rights, those rights are derivatives of the rights of the organization’s human members. 
The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money is hardly a right that logically derives from those shareholders’ own First Amendment speech rights, I said.  “The exercise of those speech rights cannot reasonably be interpreted as intentionally collective among the shareholders; the specific expenditure is not foreseeable to shareholders, and many shareholders, whose politics differ from that of the CEOs, would be horrified by it if the transparency that Justice Kennedy so vaunted in the opinion actually existed and they knew about the corporation’s political role,” I wrote.

My post was posted prematurely.  I’d intended to edit it before it was posted.  And, as I said in a comment I posted to the post, that comment needs clarification, because it implies inaccurately that corporate management normally lacks, or at least should lack, the legal authority to take actions that are unforeseeable to shareholders.  What I meant is that corporate management—and, regarding the use of corporate funds for political purposes of this sort, this presumably would be the CEO—should not be able to leverage the First Amendment speech rights of unwitting shareholders in so unforeseeable a respect. What Citizens United did was authorize corporate top management to leverage shareholders’ First Amendment speech rights and shareholders’ money for political campaign expenditures.  But unlike Goldman Sachs when lending leverage to Bain Capital, these shareholder political donors are captive ones.

Of course, the Fab Five majority in Citizens United did pretend otherwise.  But then, as I said in another earlier post on AB, declaring clearly-false facts in order to arrive at their chosen result in that case is the very hallmark of that opinion. 

In the comments to my earlier post that this post clarifies, there was some discussion about whether the remedy for an objecting shareholder is to simply sell the corporate stock.  But for that to be an option even just for people who own the stock directly rather than through a pension fund or mutual fund, the corporation would have to divulge to its shareholders its intent to make that expenditure.  Suffice it to say that corporations do not divulge the specifics of these expenditures, even after they’re made, much less beforehand.  And the sale on short notice may cause the shareholder to accept a financial less on the sale, all in order to prevent the derivative use of the individual’s First Amendment speech right never foreseeably conferred in the first place. 

This particular constitutional right, by its nature, should not transfer so artificially and unintentionally.


For readers who didn’t see my earlier post, and who are curious, I said that the other problem with what Hartmann and others are arguing is their claim that the courts have no authority to render decisions pronouncing rules of constitutional law.  I said, accurately, that this claim is profoundly dangerous.  I said it mirrors what Clarence Thomas and Antonin Scalia regularly claim, except of course when they themselves are fabricating some new rule of constitutional law.  As they did in Citizens United.

I also said I love Thom Hartmann, but that I think his position here needs some refinement.

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The Beginning of the End of Citizens United?

 I sent a link to Beverly to this article which stated Citizen United was not so much about corporate personhood. Here is her response, and in addition in a later e-mail Beverly makes this key point (intro amended for readability):

…that no constitutional amendment is necessary in order to nullify Citizens United, because Citizens United actually was decided on the basis of a purported issue of fact that was unsupported by any evidence and that can be refuted by actual clear evidence–and that that’s really the point that the Montana Supreme Court justices were making.

and actually much more….

by Beverly Mann

The Beginning of the End of Citizens United

The article makes the important point that Citizens United and Bellotti, the 1978 opinion that Citizens United uses as its justification, focus mainly on the listeners’ right to hear political speech rather than on the speaker’s right to speak, and so it is not corporate personhood but instead the money-is-speech Supreme Court tenet that is the operative precept in Citizens United. But then the authors claim that, because no listener was a plaintiff challenging the constitutionality of the statute, the Court had no authority to decide the issue on the basis of the supposed interests of listener members of the public. That’s ridiculous, and they themselves effectively refute it. They say:

For their traditional First Amendment balancing, on one side of the scale, courts have categorized the speech as either a kind that communicates an idea, opinion, demand, information relevant to democratic debate, etcetera, or a kind that better fits the category of being merely an instrumentality of transactional conduct. (The speech can also fall in the middle between these two categories). The more communicative and the less transactional, the more weight the courts have recognized on this side of the scale. On the other side of the scale is weighed the amount of harm done by allowing the speech. Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.

One reason why speech that communicates political argument, ideas, opinions, information relevant to democratic debate, is more protected under the First Amendment than commercial or transactional speech is that the public has a stronger interest in hearing, and therefore a stronger right to hear, political argument, ideas, information, etc., than it does transactional speech. A big part of the balancing in First Amendment speech cases concerns the interest of the listener.

Also, their statement that “[m]oney in politics falls within the category of transactional speech” is clearly wrong. It seems to me that money in politics isn’t speech at all. But it’s certainly not transactional speech. Transactional speech is the speech intended to induce the payment of money—speech intended to induce the purchase, or whatever. It’s not the payment of the money.

It’s also wrong to conclude that corporate personhood played no role at all in the outcome of Citizens United. The majority talked about the First Amendment right of corporations, unions, nonprofits, to have their message heard through mass media—and that therefore they themselves (the corporations, unions , nonprofits), like listeners of speech, have a First Amendment right to have their message heard only because they are deemed “persons.” The First Amendment gives rights only to persons or “persons”. So in this case, it was both the supposed rights of the human listeners and, separately, the supposed rights of the speaker “persons” that the Court found that the statute violated. But either one alone would have been enough, in the opinion of the Court’s bare majority, in this case.

Then there’s this paragraph, which makes no sense at all:

First, the Roberts 5 stepped outside the court’s constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court’s own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976.

Huh? Of course the Court has the constitutional authority to take up and decide cases concerning election integrity. Yes, Article I, Sections 4 and 5, specifically consign to the elected Congress both regulation and judging of the manner of holding elections. Other sections of Article I, and other parts of the Constitution, consign to Congress the writing of other types of statutes. And under Marbury v. Madison, the Court has the authority to decide the constitutionality of those statutes.
They are right that the court improperly “overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation.” In the Montana case discussed in the article, in which the Montana Supreme Court on Dec. 31 issued an opinion upholding the constitutionality of a longtime Montana statute limiting campaign contributions and (I believe) campaign expenditures supposedly independent of specific candidates’ campaigns, despite Citizens United, there was specific, strong evidence both of actual corruption before the enactment of the legislation, and of a strong public belief that unlimited contributions and independent expenditures by corporate interests (or by very wealthy individuals) undermines the integrity of the legislative process.

The Montana Supreme Court opinion details this. In Citizens United, the majority said they concluded that neither of these existed. But in light of the detailed examples of that type of corruption, and the statement of six of the seven Montana Supreme Court justices that they themselves believe that unlimited contributions and independent expenditures directly corrupts the legislative process, it will be a lot of fun to watch the Supreme Court majority reiterate that they “find” that there is no such corruption and no public perception that that kind of money undermines the integrity of the legislative process.

The Citizens United majority’s purported finding was intended as a finding of fact, not a statement of law—a very big difference, and the reason that, as you know, Dan, I disagree with the legal pundits who have said they expect that the Supreme Court will overrule the Montana Supreme Court.
In Citizens United, the Supreme Court simply decided on its own to address this issue and the constitutionality of the part of the McCain-Feingold law that this supposed finding of fact concerned. There was no evidentiary hearing in the trial court concerning either actual corruption or the public perception of it, related to unlimited campaign contributions and unlimited independent campaign expenditures by corporations. The Court’s majority simply pronounced their finding of fact based upon nothing more than their personal views, their own ideology, as if ideology and the personal opinions of five justices is evidence.

In my opinion, under the ruling in Citizens United, which actually is a fact-based ruling rather than a categorical statement of constitutional law, Congress could re-enact a statute similar to that part of McCain-Feingold, and as the law stands now, under Citizens United, defend its constitutionality in court. When the statute’s constitutionality is challenged, the government, in defending in the lawsuit, could parade huge numbers of people—some of them very high-profile. NY Times columnist, Thomas Friedman, for example, has called the system of campaign contributions legalized bribery authorized by the Supreme Court), some of them just ordinary folks from, say, Montana—to refute the unsupported , out-of-the-blue, findings of fact in Citizens United.

Unless, of course, the Supreme Court, in, say, the Montana case suddenly changes the stated justification for its Citizens United ruling, from a supposedly fact-based one to a categorical ruling of law that the First Amendment bars any such statutory restrictions irrespective of facts, and therefore overtly removes this area of First Amendment law from the usual balancing-of-interests analysis. Most people think that’s what they did in Citizens United. But it’s not. The Montana Supreme Court justices recognized this, and it was the basis for their ruling.

And once the Montana case gets to the Supreme Court, and gets the national publicity it will get if (almost certainly, when) the Supreme Court agrees to hear it, the public will learn this. I think the Court will be treading quite close to losing the confidence of a vast majority of the public if it reiterates its own claimed finding of fact from Citizens United, in the face of the extensive evidence in that case (again, including the view of six of the seven Montana Supreme Court justices) that vast majorities of the public do, as a matter of fact, perceive that unlimited campaign contributions and veneer-thinly-independent electioneering expenditures compromise the integrity of the legislative system. And I think the justices will recognize that.

Which will leave them with the choice between categorically rewriting a significant part of First Amendment law, which they superficially nodded to in Citizens United and circumvented there via their spontaneous finding of fact, or instead once again overtly supersede clear fact with their own Mad Hatter view of it. Sit tight.


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We trust that AT&T will not take it personally

Part of an e-mail from Beverly Mann on additional expansion of corporate personhood concept at the Supreme Court:

I agree that, as the article at Raw Story says, the decision is a striking contrast to the court’s ruling in Citizens United, which upended decades of campaign finance regulation, allowing corporations to spend unlimited amounts on political campaigns without having to identify themselves.

Some commentators are amused by the last sentence of the final paragraph of Roberts’ opinion in the case. The paragraph reads:

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

The line strikes me as a nod to a hilarious Supreme Court Dispatch article that Dahlia Lithwick wrote in Slate, reporting on the oral argument in the case in January, in which she treated AT&T as an actual human and said “he” was in court that day to watch the argument.

But there’s really no mistaking that Roberts and some of the others are feeling burned by the massive criticism of the Citizens United opinion last year.

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The Supremes did us a favor with Citizens United regarding Rand Paul et al

By Daniel Becker

Ok, if you have not heard, Mr Rand Paul made quite the impression during an interview with Rachel Maddow. The short of it: businesses should be free to discriminate as they see fit. It’s their right, though he’s not for discrimination. You know, citizens and all having equal rights.

Well, there is a problem with Mr. Paul and his like’s argument. The Supremes ruled that businesses (at least corporations) are people. You recall that “Citizens” United case? Seems to me, being that Corps are now citizens, they fall under the same citizen law regarding Civil Rights. That is they can’t discriminate. Thus, the entire argument that businesses have rights outside of citizens as presented by Paul et al is now moot.  The entire section of the Civil Rights act that Mr. Paul supported his argument on is now redundant within that law.

Of course, they could decide that being a corp and having the right to discriminate is more important than the right to spend on elections. But, I don’t think the US Chamber is willing to swap the money maker right for the right to be prejudicial. At least not based on what I received to day:

U.S. Chamber: DISCLOSE Act Is Partisan Effort to

Silence Critics and Gain Political Advantage
Donohue: ‘It’s Unconstitutional. It’s Un-American. And It Must Be Stopped’

WASHINGTON, D.C.—U.S. Chamber of Commerce President and CEO Thomas J. Donohue issued the following statement today in response to the House Administration Committee’s markup of the so-called “DISCLOSE Act:”

“The DISCLOSE Act is an unconstitutional attempt to silence free speech and a desperate attempt by Democratic Congressional Campaign Committee Chairman Chris Van Hollen and the immediate past chairman of the Democratic Senatorial Campaign Committee, Senator Chuck Schumer, to gain political advantage in the 2010 elections.

“Congress should not be wasting its time on an ‘Incumbent Protection Act,’ but instead should be focused on job creation. Nothing makes Americans angrier than members of Congress who are more concerned about protecting their own jobs, rather than creating new ones for unemployed constituents.

Hey Chamber and Rand Paul, you know what else is unconstitutional and unAmerican? Discrimination.  Infact that was the entire argument of Citizens United.

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Responding to Glenn Greenwald’s: What the Supreme Court Got Right

by Divorced one like Bush

For this post I will formally introduce myself. I am Daniel J. Becker. It is only proper and just to do so. I am using Mr. Greenwalds discussion only as a platform to add my thoughts regarding the Citizens United decision.  Also this is a long read. So I’ll give you up front the crib note version: The source of error and thus argument is that the arguing/arguments are starting in the middle of the line of reasoning and not at the beginning.

The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like.

The above is, I believe, the thrust of Mr. Greenwald’s argument. It has always been his strength and the source of the pleasure I receive when I read his arguments. I do not disagree with his statement. I believe it is the same argument presented by Mr. Jonathan Turley on MSNBC and by the ACLU. Mr. Turley specifically states that the Constitution does not protect us from bad decisions.

Our predicament with this latest decision and the examples of Bush et al’s “warrantless eavesdropping, torture, unilateral Presidential programs” which Mr. Greenwald presents is not found in the argument of whether we like or dislike the outcome. The argument however is addressing an issue I have had for years with the way law is practiced.

What is the proper means of using, applying, implementing a form of governance based on the ideology of “the rule of law”?

We need to step back further to see the source that can lead to a dire results upon implementing a ruling of properly applied law. One side is asking “how can you ignore the cliff?” The other is responding with “it’s the law”. There might even be a third party arguing that both sides can be viewed as just differences of interpretation of the words used. Maybe this even comes down to a simple placing of a comma? 

Seems like quite the dilemma for us, no? If we are not true to applying the law as written then we are by definition of “rule of law” no longer under “rule of law” and thus the entire concept of law as we are historically taught becomes instantly nonexistent.

So it appears we are at times left with only the forced acceptance of hurting ourselves, hurting our social order for the ideal of living by the rule of law, an ideal existing for the purpose of removing the errors of emotion in the attempt to achieve betterment in producing justice.

I’m sorry. I will not accept that a system designed by persons who devoted their lives to understanding human nature and history, and used civil war to create the environment needed such that their ideas regarding government could live, is inherently flawed in a manor that we have to live with the threat of what can be called “legal masochism”. The question becomes: Where is the flaw in the application of the ideal and concept of “the rule of law” such that we have a masochistic results? Even Mr. Turley notes that this current decision has the ability to be a major self flagellation.

The only point at which both sides or all sides can resolve this predicament (assuming you are not accepting that legal masochism is an inherent aspect of our system) is at the place in any sentence where the word “faith” or it’s variant appears. Faithfully. Faithful. This word “faith” can not be interpreted and thus the sentence understood without answering the question: Given to what? What is our faith given to? What is the basis of our faith? We give faith to something because we accept that the “something” has a power of some nature.

SCOTUS: …and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.

All federal employees: …that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…

President: …I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Vice President:… I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…

Congress: …I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…

The only entity in our governing system not to specifically or tangentially pledge their faith to the Constitution is “We the People”. The Pledge of Allegiance is a pledge to each other as one. I would argue, that such a pledge implies our faith in “We the People”. This is as it should be. We are not bound to the Constitution by any external power. Not by religious power, royalty power, dictatorial power, corporate power, etc. We can not be so bound because we are the power. There is no other hierarchical power in our system of governance. Any faith we express regarding our ability to govern our self is the result of the enlightened reality that people governed are the source of all governance power. We are the power. We agreed to this understanding of power in ratifying the Constitution.

Thus, the only power that the Constitution has is the power that We write into it. This is the genius of our founders. The Constitution is the written word so to speak of our power. It is our collective thoughts regarding governance. It is our identity as a governed people. It is the blue print to be used by any entity to come if such entity desired to reproduce our governance mind.

Many have noted the Preamble of the Constitution as a reference to why the Citizens United ruling is in error. The presentation is that it states only “We the People” and thus follows that only humans can have rights and power. But, this is incorrect as to why the argument as Mr. Greenwald and Mr. Turley state is in error.

The Preamble does not give power to us. The Preamble however, is very important for it is the statement from us to each other declaring what “We the people” will do with our power. The Preamble is the point of source and reference for all of our laws and the Bill of Rights and thus rulings. The Preamble is the stated purpose and desired goal of the application of our power. It is the final test as to the consistency of all that comes after it. All that comes after the Preamble is the listed means by which we will exercise our power. This includes the Bill of Rights. As an individual, it would be one’s purpose in life.

Here’s the real rub however, that I have with all I have read and the current way law is practiced and the reason for the above set up of this discussion. I am not a sum of parts and neither are you. I am a whole, a one which can not be understood or related to by subsection analysis. My intentions can not be fully implemented or appreciated as to their appropriateness to my overarching purpose independently of each. If you accept that this is true and I believe that the prevailing founders did, then our Constitution as the written word of our power and it’s use must so be understood and applied as a whole life which is summarized in the Preamble.

To exercise our Constitution in a reductionist manor, I believe is a mistake and a disservice to the intellect of those who wrote it. Such proof of thought can be found in the very division of our power. No one division can have purpose, can have material to work with without the other. The concept of separate but equal can only be appreciated if it is understood that the separation is only for the purpose of job distinction. Our power can not be exercised in whole by any one branch. The strength of the whole of our power can not be experienced in any one branch. That each branch is originated in the Constitution and each branch is dependent on the others for its job, is proof of construct and thus application and exercise of the Constitution and all that comes after it. One can not properly determine the appropriateness of any decision originating out of any of the branches without considering the the relationship to the whole of the Constitution. The whole being the relationship back to the Preamble which is the stated purpose and intentions of the application of our power. That such work is not performed creates what the Citizens United case has created…legal masochism.

Yes, we are at the point of faith. “We the People” refers to a collective and thus, the collective faith in the source of governance power. Our government exists solely as the result of our collective agreement to have faith in the idea that the power to govern comes from the governed. The entirety of our power is the collective faith in the idea: the power to govern comes from the governed. This was never made more real to me than when the issue of the “Nuclear Option” materialized. I wondered why not just go to the SCOTUS to get the question of constitutionality settled? I learned that the SCOTUS would not consider such a question coming from another equally powerful branch of our governance. Thus, the rule regarding filibusters and in fact the entire functioning of our government as laid out in the Constitution came down to an agreement by two parties (political or otherwise) to abide by the rules . Once one side decides not to agree, all governance related to the purposeful use of our power as stated in the Preamble stops. It is the Civil war at the extreme of disagreement. It includes the decision to not abide by the intention of the use of our power as stated in the Preamble leading to our incapable congress.  That is, filibustering everything.  It is why one party could pass all they wanted with just 50 votes.

There is only one means by which an individual or collection of individuals can decide not to agree as it relates to applying our power as designated in the Constitution. It is by not placing faith in the source of the power of government. Once faith is given to any other power than “We the People”, our government instantly ceases to exist. There is no Constitution, no Constitutional power, no Constitutional declaration of the purpose and use of power without faith in “We the People”. It is in this understanding that the argument as presented by Mr. Greenwald and Mr. Turley and those who present the first three words of the Preamble in counter argument fail.   Placing power of any type in any entity other than “We the People” is a displacement  of the faith.  Stating that power comes from any other source than “We the People” is a displacement of the faith.  Both makes the Constitution just a bunch of words.

There is a reason those who are charged with acting on our behalf, charged with implementing our intent have to pledge their faith to the Constitution. It is because they are pledging their faith to the source of the power they will exercise: We the People. In pledging to the Constitution, they are pledging to Us. It is this pledge to Us that gives us the ability to judge where their faith lays. The moment power is place in something other than “We the People”, our governance as dictated by the Constitution ceases to exist.

This gets us to the freedom of speech issue. Freedom of speech can only be applied to Us because as a declared right within our Constitution, the document that is the materialization of our power, it is a declared means by which We exercise our power. There is no other source of power regarding governance and thus there is no other entity that can have or obtain such power. The right of free speech can not be bestowed to an entity that is not a “people” by virtue of judging it’s bestowment via the Constitution. To do so is a violation of the pledge of faith to the source of our power.

In the issue of the entity called a corporation, the only true means to give it such power would be through legislation though I would argue that the transference of power properly has to be by constitutional amendment as all issues of seat of power are of the Constitution and not laws created by the legislative branch. Laws can not create power in our governance as it is constructed. At the same time, being that corporations are creations of law, it is impossible to reason that they can have the free exercise of a power which is only sourced from our faith in the idea that the power to govern comes from us. That the SCOTUS in the past has ruled (and this is even questioned) that corporations are proxies for people is a misplace of faith. It is a violation of their oath.

Then again, I could have simply pointed out that to conflate our economic system and its structure and components with our governance system as being a proxy for our governance system is the gravest of insults to our founders.  They certainly understood power and they certainly understood the power of pooled money.

Corporations are properly a part of our economic system. It is a system that is in service to “We the people” for it only exists by virtue of law and not by virtue of the Constitution. It is a system that exists for a very specific and limited purpose; a purpose that does not included being a part of our governmental structure which exists for the purpose of exercising our power. Those structures that exist for the exercise of Our power are only the three branches. But consider the argument that corporation are just a coming together of people to exercise their power? Such a thought is a violation of our Constitution and ultimately our faith because the only means to come together to exercise our power is the direct interaction with our government through our Constitution. It’s called voting. That is the only means that exists in the Constitution for all those “strict constitutionalists”.

The economic system should properly be viewed as the results of our implementation of laws that protects us during the exercising of our personal freedom, not power. Freedom certainly results in greater power, but we have limited our individual exercise of power via our faith in the collective power such that all are endowed with the freedom of “domestic tranquility” and “the Blessings of Liberty.” One is free not to be screwed by another to be blunt but, one is not free to screw another.

At this point I am willing to accept that what I am suggesting with this entire presentation suggests that we are currently living under many rulings that are actually in error and thus would result in the undoing of a major amount of what we consider settled law. For example, the entity called a corporation should have never been accepted as the proper vehicle, model or structure for people to freely assemble for the purpose of forming a relationship with their government. Free assembly is just that. Assembly free of formal structure. What it means is that those looking to be elected really do need to go one person at a time to get said person’s vote. What it means is that at the point in the growth of our nation that campaigning became an expense for the candidate, we should have implemented public funding via law, or amended the Constitution to allow another form of assemble for the purpose of funding campaigns. Such a method would be an issue of placing power and certainly relates to the Preamble’s stated purpose and application of our power:

…in Order to form a more perfect Union.

Thank you.

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