Friday, January 22, 2010

A Few Words About the Latest Bone-head SCOTUS decision

Has the US Supreme Court taken a giant step toward ushering in the Brave New Corporo-fascist State?

Fantastic Cathy McKitrick story in this morning's Salt Lake Tribune, reporting on the US Supreme Court's latest bone-headed decision, which has had cable news pundits jabbering for the past 24 hours:
Supreme Court ruling could rain money on races
Ms. McKitrick's masterfully crafted opening paragraphs provide the gist:
In a decision decried by some as akin to hanging a giant "for sale" sign on federal elections and hailed by others as a victory for free speech, the U.S. Supreme Court swept aside a decades-old ban on corporate and union spending to sway voters.
The 5-4 ruling is a "huge deal," campaign finance experts in Utah said, noting that it likely will mean substantially more money pouring into November's midterm elections, already being framed as a referendum on President Barack Obama and the Democratically controlled Congress.
The country's high court, which shifted to the right with then-President George W. Bush's two appointments, rolled back a 63-year-old law barring corporations and unions from buying ads that promote or attack federal candidates. It also dismantles a ban in the 2002 McCain-Feingold Act on issue-oriented ads by companies or unions 30 days before a primary or 60 days before a general election.
"It's a very substantial reversal of decades of law," said David Magleby, a dean and professor of law at Brigham Young University who has authored more than a half dozen books on campaign finance.
"It has the potential of allowing corporations -- for instance, a Microsoft -- to spend millions and millions in particular races," Magleby said.
That kind of mega-influence could dwarf a candidate's ability to fight back, Magleby added.
The New York Times has a strong editorial on the subject too, opining that "[w]ith a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century," and calling for immediate congressional action to "to limit the damage of this radical decision, which strikes at the heart of democracy":
The Court’s Blow to Democracy
The SLTrib editors also provide a considerably less frantic thumbnail summary of the effect of this decision in a text box beneath Ms. McKitrick's writeup:
The U.S. Supreme Court ruled 5-4 that Congress cannot limit spending on elections by corporations, unions or other organizations. The decision leaves intact bans on companies and unions giving directly to candidates. [Emphasis added].
For those readers who are inclined to dig in deep, and refer to original sources, we helpfully provide a link to the High Court's decision right here:
Citizens United vs. the Federal Election Commission
The above-cited NYT editorial drills down to what we believe to be the major flaw in this latest Supreme Court decision, i.e., the court majority's erroneous treatment of "artificial" entities (such as corporations) as the equivalent of "natural entities" (living and breathing people) for First Amendment purposes.

Justice Stephens provides an expansive analysis on this (and various other) of the court's various "errors" in a brilliant 90-page dissenting opinion (see pdf page 88 et. seq.), and falls just short of calling his his conservative High Court judicial colleagues "boneheads." It's a fantastically well-reasoned tome, actually, as turgid SCOTUS dissenting opinions go.

Still, it' s a mere dissenting opinion; and it therefore doesn't have the force of law. And in the months to come we'll have to come to grips with the political dynamite which our "activist high court" has dropped onto the national political landscape.

Incidentally, we believe this decision will likely have implications in future elections... right down to the local "dogcatcher race." Although the decision is framed as a limitation on the federal Bipartisan Campaign Reform Act of 2002, the "absolutist" principle that First Amendment rights are broadly applicable to corporate entities would logically apply to local races too.

So what about it, gentle readers? Does this latest Supreme Court decision signal the inexorable decline of "one man one vote" in America? Has the US Supreme Court taken a giant step toward ushering in the Brave New Corporo-fascist State? Will federal and state legislatures succeed in limiting the ill effects of this new Judicial Legislation prior to the 2010 General Election? Is the extension of full First Amendment rights to faceless corporations actually a "good thing" for America? Will the airwaves now be filled with corporate-financed Boss Godfrey infomercials in the months prior to the 2011 Emerald City Municipal Election?

The world-wide-blogosphere eagerly awaits our readers' ever-savvy comments.

Have at it, O Gentle Ones.


Danny said...

Some outside the box thoughts:

1. It’s funny that Rudi and I both think of ourselves as “libertarians”, yet we see this issue differently. I view it as a good thing, because I for one would like to see a “wild west” free-for-all in national elections – spend for whatever you want, for whoever you want, and say whatever you want whenever you want, within standards of libel and decency. Then let the public sort it out.

2. Note this very important comment in the NYT article: “Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.” And so how is that possible? I thought the Supreme Court was supposed to be a check on the legislature. Well no, it turns out the Constitution has no such provision. The US Congress can overturn any Supreme Court ruling anytime they want, as well as give other such rules to the Court as they see fit! Wonder of wonders. Too bad they don’t teach that key point in elementary school.

3. Whether one is Rudi, or I, it often boils down to this: We hate judicial activism, until it does what WE WANT! Then, no problemo!

4. The fact is that most “campaign reform” legislation only serves to entrench incumbent politicians. That’s why they vote for it. Under McCain Feingold, a private group can’t run an ad 30 days prior to an election, because the politician won’t have time to respond. Oh, poor babies! Looks like that is also out the window now.

5. Disconcertingly, and perhaps hypocritically, I feel bad that this ruling could open the floodgates for Godfrey’s cronies to spend as much as they want to buy him back into office. Look for Keir Corp, Wadman Construction, R&O Construction, etc, to be running expensive ads for Godfrey on KSL next election – unlimited budget to slip their taxpayer cash machine back into office.

All in all, it is an interesting ruling.

Danny said...

Speaking of Kier, it reminds me of a show they have running on Channel 17 right now. In it, Godfrey Henchman Number One, John Patterson, was talking about the administration’s “plans” for Ogden.

“We’re going to build a BMX park; we’re going to build a velodrome; we’re going to build an ice tower; we’re going to build a -----; we’re going to build a -----; we’re going to build a -----; we’re going to build a -----; we’re going to build a -----.”

Yes, citizens, Godfrey’s plans for you are to forcibly take your money and use it to pay – guess who! – to build, build, build! And yes, as far as plans, that’s about it!

You could almost see Steve Kier standing behind Patterson, holding up an enema bag, filling Patterson with the fuel to run his mouth.

And Steve Kier will dutifully return the customary amount to fund Godfrey and his crony candidates, like he did last election for David “Alfred E” Phipps and Mark “Stinky” Hains.

Oh, by the way Steve, how’d that work out for ya?

Godfrey: The one dimensional mayor.

Curmudgeon said...

Lots of instant analysis under way, and lots of predictions about the Meaning of It All and What Will Happen To Democracy Now. Certainly cause for some concern. A corporation now, say, could target a key Congressional chairman opposing a bill the Corporation wants, and pump a few million into his opponents campaign to take him out.

But, on the other hand, aren't corporations doing the same thing, more or less, now? They just give the money to PACS for use against the Congressman they want removed. Is this going to change things all that much? [Does anyone really believe McCain Feingold actually reduced the impact of money in campaigns? Anyone who does have any evidence to back that belief up?]

I guess it could be argued that voters could benefit from knowing what corporation is backing what candidate, but the ruling doesn't ban money being washed through PACS so I'm not sure even that will happen.

Want to wait a bit and think this through a little more carefully. And maybe see how it works out on the ground.

Danny said...

So tell me Curm, what is it with you and your tendency to leave off your first person singular personal pronouns?

RudiZink said...

It gets more interesting by the moment, dunnit! Check this jagged post out:


We can't wait to see Glenn Beck treading in on this.

Danny said...

Uh, kinda dumb article (referenced directly above), I think.

Note this line,

"No American soldier can ever go to war fighting for a Chinese hedge fund, a German bank or a Saudi Arabian fertilizer company."

Well who are they really going to war for now, if not American corporate profiteers? (They just don't know it, poor fellas.)

We have all these laws, supposed to protect us, and the federal election commission. So who can afford to follow all those silly rules? Fat cats who have the cash.

Get rid of the rules so anybody can run. Get rid of all of them.

As far as Glenn Beck, Donna already tells me Limbaugh loves the ruling.

It looks like not only is freedom not free, it's complicated for most people to identify.

Less gummint is a good place to start. Less gummint!

Che said...

A corporation is not a person, and as such, should not have the liberty or equality guaranteed under the constitution.
Self evident, no?

Curmudgeon said...

Danny's right, it's a pretty naive article. The author seems to think the 5-judge majority has only recently decided corporations are "persons" under the law. In fact, that decision goes back to the 19th century when Guilded Age justices were looking for ways to immunize the Robber Barons from the Progressives' attempts to regulate corporate excesses. The corporation-as-person [and so entitled to all the protections accorded an individual under the constitution] was they way they found to do it. Today's decision is nothing new in re: the corporations-as-persons doctrine.

And it's just downright silly to claim the majority has committed treason. Reminds me of endless demands by people that a particular judge be impeached for issuing a ruling they didn't like --- Waddups recently.

There are substantive criticisms of the decision out there [the dissents Rudi noted for example]. But this article is not one of them.

The decision reversed more than six decades of established precedent and overturned acts of congress into the bargain. Funny, I didn't notice a lot of Republicans wailing today following the decision about "activist judges." Imagine that.

Danny said...

Hey Che,

Since when does the Constitution "guarantee" liberty or equality?

It simply recognizes them.

And where in the Constitution does it give the gummint power to restrict a group of persons from exercising free speech collectively?

Where does the Constitution grant the gummint power to restrict free speech at all??

And lastly, I would agree with Curm's statement, to wit, "Danny's right."

Thomas Paine said...

What is funny about all the uproar on this decision, is, it seems to be lost on some that ABC, NBC, CBS, PBS, CNN, FOX and most newspapers have been free to inject their partisan support and criticism forever into politics and all along, they have been (guess what?) CORPORATIONS! They may not give direct money, but they sure use their bias to form and shape opinion from their bully pulpits that average Americans do not have.

Free speech should be for everyone, even if they disagree with you.

There should be total disclosure as a part of this new freedom so such financial support can be subjected to examination and questions about purpose.

Grizelda said...

Wisdom from the grave Mr. Paine. Why is it that free speech is only acceptable when certain people have it?

Milt said...

What's good for giant corporations is good for America, no?

Pragmatist? said...

Corporations are not taxed. Only people are taxed. Faux Corporate taxes are simply passed along to consumers who pay taxes.

Only people who pay taxes (and their human offspring) are citizens and pay for their rights under the Constitution and laws.

To give an inanimant object equal too or above tax payers rights is a foreign concept, if that.

Vote Mao said...

Funny, now China LLC can spend as much money as it wants to elect its own hand selected candidates. Funny stuff.

Whistler said...

I wonder about any sane person that would quote CHE. A man who supervised the murder of anyone opposed to his revolutionary ideas.

Ray said...

Comment bumped to top shelf

googlegirl said...

The Supreme Court Just Handed Anyone, Including bin Laden or the Chinese Govt., Control of Our Democracy

nwo said...

If taken seriously, our colleagues' assumption that the identity of a speaker has no relevance to the government's ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.

Thomas Paine said...

nwo- it may interest you to know that the ACLU fought and won the right for the American Nazi party to march in a Chicago suburb to protect the 1st Amendment rights of free speech. It is a clear example that in this country, those rights belong to everyone, as unpopular as it may be to others.

Curmudgeon said...


Defending the Skokie Nazi's right to march was one of the ACLU's proudest moments, I think, though it cost the organization many members who didn't seem to understand that the ACLU was not defending the Nazis, but the Bill of Rights, and that it would be impossible to defend the free speech liberties of all Americans without defending them for the Skokie Nazis as well.

Another proud moment occurred recently when the ACLU of Virginia wrote to a HS principal reminding him that having a sectarian prayer read over the PA before HS football games was constitutionally impermissible. Then a group of Christian students at the school decided to protest the ACLU's letter to the principal. And the ACLU wrote again to the principal, supporting the Christian students free speech right to protest the ACLU's actions to end PA prayers at football games.

The exec. director of the Virginia ACLU put it this way: "Religious liberty demands that the government not impose religious views on anyone, and free speech demands that the government allow individuals to express their views.
This means that Gate City High School officials may not permit sectarian prayers at football games, but that they must allow students to protest the ACLU's effort to stop those prayers."

Exactly right. It's actions like that that keep me being a proud card-carrying member.

ozboy said...


I don't think your analogy about Tokyo Rose would be pertinent to this argument. The free speech rights under discussion apply only to US Citizens. There were actually about 10 women who broadcast under the name "Tokyo Rose". Most were not US citizens, but they were all English speakers. Even the couple or so that may have been US citizens were acting in the capacity of enemy agents in time of war, so I doubt their "free speech" rights would apply.

Curmudgeon said...

Should anyone still be reading this thread, just came across an interesting and thoughtful analysis of the court's decision by Randy Balko. Link here. Worth a careful read, I thought.

RudiZink said...

Excellent addition to the discussion, Curm; and generally I'm in agreement with all the points made by Mr. Ballco makes.

What he neglects however is the point the neither he nor the SCOTUS majority seemed willing to discuss, namely, the bizarre interpretation, hammered in Justice Roberts' dissent, that full First Amendment rights "absolutely" belong to inanimate corporations, just as they belong to natural persons.

I'm having trouble with the court's "absolutist" position on this; and my gut feeling is that the founders would experience similar heartburn.

Would Jefferson or Madison have contended that corporations share in the "natural rights of man" which provided the philosphical foundation for our constitutional republic, the constitution... and the First Amendment? I doubt it.

Of course Mr. Ballco didn't set out to defend the full court decision; he merely identified those issues he believed the court "got right."

And it's in that respect that I think this article is a good contribution to this discussion thread; although in the big picture, I remain convinced that the High Court muffed the call.

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