Relevant and even prescient commentary on news, politics and the economy.

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.

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.

Federal judge rules part of new anti-terrorism statute unconstitutional

NEW YORK (AP) — A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.

U.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a “chilling impact on First Amendment rights.” She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.

I wrote about this case on AB back in January and said that there’s no question but that that part of the law is unconstitutional.  I said back then that the only real question in that case is whether the plaintiffs, Truthdig columnist Chris Hedges and a few other journalists, have “standing” at this point to challenge the constitutionality of the law—that is, that they could show that things they themselves want to do are things for which, under the statute, they possibly could be detained.  According to today’s AP report, the government’s lawyer effectively acknowledged at the oral argument in the case in March that that’s possible.  

That clarified that the statute is as broad and as amorphous as the plaintiffs say it is—that there is no way even to know whether certain activities could result in detention (a violation of due process, which requires that laws be specific about what is proscribed), and also that the statute authorizes detention for activities that are protected by the First Amendment, including activities of the sort that these plaintiffs had engaged in and plan to engage in in the future.

This ruling is almost certain to be affirmed on appeal in the Second Circuit Court of Appeals, based in New York.  But ultimately, the Supreme Court will have to hear the case.  If, as I expect, the appellate court affirms the trial judge’s ruling striking down the law as unconstitutional, the Supreme Court will hear the case, because the Court always agrees to hear cases in which a lower appellate court has invalidated a federal statute.  And in the unlikely event that the appellate court reverses the trial judge’s ruling, the Court will hear this case because the First Amendment and due process issues are just too clear and too important here, and because the law so clearly does violate the First Amendment speech and assembly clauses and (because of its vagueness) Fifth Amendment due process rights.  I have no doubt that the Supreme Court will strike it down as unconstitutional.

It should be noted here that the only reason that Obama signed the law last December is that it was a poison pill that the House Republicans inserted into a Defense Department appropriations bill that was passed under deadline and that was necessary in order to avoid an interruption in salary to military personnel, among other things, if I recall correctly.  The Republicans’ purpose, of course, was to try to fabricate a Dems-are-soft-on-terrorism issue for the November elections.  As I said in my January post, Republican pols think it’s still 2002. Or at least 2004.  Or maybe even 1980.  Or 1968.  It’s not; they don’t realize that that well’s finally run dry, but it has.  Obama should have stood his ground, although some congressional Dems voted for the appropriations bill, for fear of political repercussions.  When Obama signed it, he said he thought that part of the law may well be stricken down as unconstitutional, and I do think that that’s what he expected.  Still ….

Stolen Valor and the First Amendment*

You don’t have to be a conservative who’s helped coopt the American flag as a rightwing Republican political symbol—replacing the Elephant, which no one under the age of 50 even recognizes anymore as the GOP’s official emblem—to be offended by someone’s false claim of having received a military honor, especially one awarded for extraordinary valor.  Count me among those who both distain the GOP’s appropriation of the flag as its partisan symbol—my late father, a combat veteran, a lifelong liberal Democrat, and famously (among those who knew him) very mild-mannered, used to suggest angrily that the next time a military draft is needed, Congress limit it to registered Republicans—and who find repulsive the misrepresentation of receipt of such a military honor.

So I sympathize with the sentiment of the members of Congress who voted to enact the Stolen Valor Act, signed into law in 2006, which criminalizes the false representation of having received any U.S. military decoration or medal and which provides for a more severe penalty for falsely claiming to have been awarded the Medal of Honor than any other decoration or award.  But not enough to want the Supreme Court to uphold its constitutionality, in the case in which it heard oral argument this morning. Nor do I expect that the Court will uphold it, notwithstanding Scalia’s apparent vote to do so, in seeming contradiction to his famous vote in a 1989 case to strike down a Texas statute that criminalized flag burning.  (Notably, Scalia and Stevens swapped ideological roles in that case, with Stevens voting to uphold the law and Scalia providing the fifth vote to strike it down as violative of the First Amendment.)  And notwithstanding his joining the opinion written by John Roberts for all the justices except Alito two years ago striking down as a First Amendment violation a 1999 federal statute making it a felony to depict in a video, or sell the video depiction, of people crushing small animals for sexual gratification. That’s because I don’t think Scalia’s vote will be needed.

I believe that the crush-video opinion, United States v. Stevens, is the more relevant one, because, unlike the flag-burning case, Texas v. Johnson, the purpose of the speech that the statute prohibits is not political, and therefore is not “core” First Amendment speech under the Court’s free-speech jurisprudence, but instead is made for the personal benefit of the speaker. Which is why I expect that Kennedy, who joined Scalia in the flag-burning-statute case, and Roberts will vote to strike down the Stolen Valor Act as unconstitutional.


Mark Sherman, the Associated Press’s Supreme Court correspondent, reported after this morning’s argument:

Some justices said they worried that upholding the Stolen Valor Act could lead to other limits on speech, including laws that might make it illegal to lie about an extramarital affair or a college degree, or to impress a date.
“Where do you stop?” Chief Justice John Roberts asked at one point.

But Roberts later joined other justices in indicating that the court could make clear that, if it upheld the law, it would only be endorsing an effort to prevent people from demeaning the system of military honors that was established by Gen. George Washington in 1782.

Well, yes.  And had the Court upheld the crush-video statute as constitutional, it would only have been endorsing an effort to prevent people from sadistically crushing small animals to death—one of the videos at issue showed a woman killing a small dog by stomping the spike heel of her shoe into the dog—demeaning humanity, as Alito effectively implied in his dissent.  He said that in his opinion, the most relevant First Amendment opinion was one from 1982, in a case called New York v. FerberFerberheld that, even independent of the “obscenity” exception to First Amendment protection, child pornography is not protected speech, because advertising and selling child pornography provides an economic motive for producing child porn, which in turn is intrinsically related to child sexual abuse and which in fact usually involves the use of actual children, and which has little artistic value—and that the government has a compelling interest in preventing sexual exploitation of children.

“I believe,” Alito said, “that Ferber’s reasoning dictates a similar conclusion here.”  No, he granted, the government’s interest in preventing sexual exploitation of children is more compelling than its interest in preventing the sadistic sacrifice of defenseless animals in the name of profit.  But the government does nonetheless have a strong interest in preventing the sadistic sacrifice of defenseless animals in the name of profit, and that interest is compelling enough to overcome the strong presumption of First Amendment protection, given that the sole purpose is profit, not art, not politics, not information.  Just profit.

To which I, a dog lover of the first magnitude, and someone who near-literally feels the physical pain of an abused animal she’s read about, said to myself, “I agree.” 

But John Roberts didn’t and either did Antonin Scalia or Anthony Kennedy.

“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished by charlatans. That’s what Congress thought,” Sherman quotes Scalia as saying this morning. 

Well, maybe that is what Congress thought, but it enacted the statute without first holding any hearings on it.  And Sonia Sotomayor provided some evidence this morning to refute the contention that the lies have devalued the military medals, including the Medal of Honor, have been diminished by the lies of people claiming falsely to have been awarded them.  Acknowledging that the lies justifiably provoke an emotional reaction, she noted that the Court has long and repeatedly held that the provocation of offense, alone is insufficient to justify government censorship.  Her money line?  “So outside of the emotional reaction, where’s the harm? And I’m not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.” 

Sherman mentions after the quote that Sotomayor is divorced.  

Which brings the question back full circle, to Roberts’ question, “Where do you stop?”  My guess: With a well-meaning statute that criminalizes the making of a false claim to have received a military honor.  Which, offensive as it, does not encourage sadistic killing of animals in order to videotape them for profit.   

The case argued today is U.S. v. Alvarez.


* UPDATE: Dahlia Lithwick’s Supreme Court Dispatches report on the oral argument, posted tonight on Slate, is a must-read.  My take, after reading it: That trademark infringement is now gonna be a criminal offense.  Well, not having the trademark, actually, but saying you have a copy of it when you don’t.

Uh-oh. I better stop saying that that crystal vase in my living room is a Waterford. Y’know, when people ask.  


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.


America 2012: Thank you Justice Roberts?

by Bruce Webb

Arguments were heard by the U.S. Supreme Court this week as to whether restrictions on corporate political donations were constitutional or whether those corporations are protected by the First Amendment. Court watchers report that signs are that the Robert’s Court will so rule with the ruling due to be handed down around Oct 5. I’ll let those who like battle out the legal issues in comments. I want to know what would then prevent the following wholly fictional scenario?

Flash forward to early Winter 2011 when in this era of the permanent campaign contenders for Election 2012 need to start their preparations. For the Republicans three faces have emerged. One is John Ellis, former political analyst for Fox News, most famous for being the first such analyst to call Florida for George W Bush in 2000. Ellis is expected to be backed by millions of dollars from his former employer NewsCorp, parent of Fox News, as well as substantial donations from the Carlyle Group, a privately held corporation with substantial but undetermined ownership interest held by Ellis’s uncle, former President George H.W. Bush. The other is former Tennessee Senator Dr. Bill Frist, jumping back in the political ring due to his concern about the impending socialization of medicine, but this time directly backed up by the resources of Hospital Corporation of American (HCA) founded and until recent years run by members of the Frist family. The third face is surprise entrant Manuel G________, a wealthy third generation Mexican American little known outside Latino business, charitable, and religious circles. He currently is CEO of TelMUSA, a newly formed American subsidiary of TelMex.

On the Democratic side two candidates have emerged to challenge President Obama from the Left. One is Darcy Burner {ed: I said fiction} former Microsoft exec, Congressional candidate, and first executive director of the American Progressive Caucus Policy Foundation. A longtime favorite of the progressive wing of the Party she is expected to draw strong support from Microsoft and various investment companies owned by Microsoft co-founder and billionaire Paul Allen. A more long-shot candidate is Massachusetts based Peter M________. Born in Puerto Rico he is currently both an executive for Citgo and a long-time supporter of community organizing in cities throughout the Northeast. He has strong pledges of support from Citgo and its parent PDV America Inc.

Mr. G and Mr. M are fictional as is TelMUSA, but the other persons and affiliations are real.

Well it is a problem of billionaires, and more particularly foreign billionaires. In this scenario John Ellis would be drawing his support from Australian billionaire Rubert Murdoch, his wealthy family’s interest in the Carlyle Group, itself with substantial ownership interest by high ranking members of the Saudi Arabian royal family including Prince Bandar. Then you have Bill Frist, drawing direct support from hospital giant HCA, source of his own substantial fortune. And finally Mr. G, a man who works in a direct line for Carlos Slim, the owner of TelMex and the third richest man in the world.

On the Democrat side you would have Darcy backed by two more of the wealthiest men and corporations in the person of Gates and Allan and Mr. M. working for the wholy owned American subsidiary of the Venezuelan government, a guy named Hugo Chavez.

So we really want to turn American political financing over to Prince Bandar, Rubert Murdoch, Carlos Slim, and God help us Hugo Chavez? Would we fill much better knowing that on the other side were balanced out candidates backed by companies largely owned and controlled by Gates, Allen and Frist’s wealthy family?

And you can make this a lot more sinister. Throw in U.S. companies controlled by people associated with Putin or with Chinese Government ownership interests and you can have a real nightmare. People on the Right blindly pushing to unleash American corporations need to remember that when you get to the big boys there mostly ain’t no such thing as an “American company”. Not anymore.
(Update: a reader reminds me that Murdoch is now a U.S. Citizen. This doesn’t materially effect the argument. The danger is from any billionaire or company buying politicians directly. Moreover Murdoch’s Wiki bio says he became a citizen simply to satisfy legal requirements for owners of TV stations and not out of some sense of real loyalty to the U.S.)