“It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin.” J. Stevens, Citizens United v. FEC.
No. Judicial restraint would be refusing to hear a case on the grounds that the arguments presented were unsound and there is no clear and compelling argument presented for judicial intervention in the legislative process.
I. INTRODUCTION
Last week SCOTUS handed down Citizens United v. Federal Election Commission. Long LONG story short, this case involved a challenge to the Bipartisan Campaign Reform Act of 2002 (you may know this as the McCain/Feingold Campaign Reform Act. For the sake of brevity, I will refer to it hereinafter as BCRA), specifically to U. S. C. §441b, which prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.
To put this in perspective, SCOTUS has previously determined that restrictions on corporate spending to support or oppose political candidates were kosher, Austin v. Michigan Chamber Of Commerce, 494 U.S. 652 (1990) and upheld numerous provisions of BCRA in McConnell v. Federal Election Commission, No. 02-1674 (Decided December 10, 2003), including the provisions that limited spending by corporations and unions.
In January 2008 Citizens United, a nonprofit corporation, released a “documentary” bashing Hillary Clinton. Citizens United’s intent was to run the video on cable television via video-on-demand 30 days prior to the primaries. Citizens United also put out tv ads promoting the documentary on regular and cable television. Citizens United then filed a declaratory judgment action (effectively an action that asks a Court to determine the rights of a plaintiff, sometimes indistinguishable from an improper request for an advisory opinion) and requested injunctive relief proclaiming that it was not subject to the restraints of §441b. In its claims for relief, Citizens United made a number of arguments pertaining to a narrow construction of the statute in addition to the generic claims that the statute itself was broadly unconstitutional. NB: this is a standard approach – one ALWAYS sets up a blanket assertion of fundamental unconstitutionality to balance out the more narrow – and realistic – unconstitutional as applied arguments.
SCOTUS, in a jaw-dropping example of sua sponte policy making by the conservative arbiters of judicial restraint, ignored all the narrowly drawn arguments and determined that this case could only be decided on large-picture 1st Amendment grounds, coyly found that Citizens United had not waived any such arguments, and then proceeded to overrule long-standing precedent and determine that corporations have the right to engage in unlimited and unfettered political spending in the guise of free speech.
To say this decision came as a shock is an understatement. Most people thought this was just a quirk of a case, and one that would be decided on very narrow grounds thus having scant little impact on future political speech activity. Not so much. For those of you who like to torture yourselves, you may read the opinion here in its 180+ page glory, including the very eloquent, if stunned and horrified, dissent penned by Stevens. For those of you that don’t feel like engaging in such an endeavor would be a good use of your time – or may be likely to increase your rage level beyond the range of acceptable – I will give you a quick and dirty summary of WHY the conservative wing of the Supreme Court, the so-called bastion of judicial deference, decided that it had to go all judicial activist on the collective ass of the citizenry. Bottom line? Because it is *GOOD* for us.
II. SUMMARY.
A. Support of Candidate A and Attacks on Candidate A’s Opponents Are Two Legally Distinct Activities.
“[B]y definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” In other words, the majority insists that there is a meaningful and substantive difference between giving a bazillion dollars to Candidate A to get him/her elected and spending a bazillion dollars to get Candidate A’s opponent defeated. First, if we were a multi-party country, this argument might actually have some (very little) merit. However, as we are inarguably a two-party system, money spent to defeat Candidate B is inherently money spent to elect Candidate A.
Think of it this way: Leno want the Tonight Show back from Conan. Wal-Mart, being generally evil, wants Leno to get the Tonight Show. Under the Citizens United theory, Wal-Mart cannot give Leno more than $2,400 to assist him in his jackassery. However, Wal-Mart can spend unlimited amounts of money to get Conan to leave. What, praytell, is the substantive distinction here? Is SCOTUS trying to pretend that tanking Conan doesn’t necessarily promote Leno? Or, and this is my thought, is SCOTUS simply being difficult and insinuating that Congress set up this false distinction, so they will have to live with it?
Either way, I cry bullshit on this line of reasoning.
B. There is No Principled Way to Distinguish Between “Media” Corporations and “Other” Corporations.
Basically, EVERY argument of principles/moral/philosophy/religion/politics boils down to this simple diametric: ‘slippery slope’ v. ‘de minimus.’ In other words, unspeakable horrors will/may result v. you’re making a mountain out of a molehill.
Here the majority engages in the long-favored rhetoric of those adhering to an unprincipled argument – insist, instead, that the other approach would result in greater lack of principles down the road. Bait and switch – NICE! What the majority “fears” on this issue is that the provisions of BCRA at issue, if left unmolested, would prohibit “…[i]nternet sources, such as blogs and social networking Web sites, …[from] provid[ing] citizens with significant information about political candidates and issues” as the language of section 441b “…would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds.” [NB: As Steven’s dissent rightly points out at fn 31, these provisions are expressly inapplicable to print media; so unless your blog is spoken word, the majority’s alarmist potentials do not apply.]
The majority further insists that under the current law, Congress could theoretically ban showings of Mr. Smith Goes to Washington. Because “[a]fter all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.”
Really? So now Congress, in addition to attempting to limit campaign contributions, is also necessarily attempting to limit obviously protected free speech?
Come on…
C. Not Allowing Corporations Free Rein To “Speak” Is an Infringement on OUR First Amendment Rights.
Warning – this may nauseate you.
The majority additionally asserts that their decision to grant the full unfettered political speech rights of a U.S. human citizen to corporations is to protect US – the U.S. citizens.
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
So yes, restrictions on a corporation’s ability to spend a kabillion dollars to get its favored candidate elected infringes on our 1st Amendment rights to hear them “talk.” And why does this suck for us? Because, apparently, corporations are inherently good and all-knowing (ummm…does this mean they are God?). The majority gives the following as ‘support’ for its rape-stand of an argument:
The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McConnell, supra, at 257–258 (opinion of SCALIA, J.).
And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result).
By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison).
Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false. The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public.
D. The Dissent’s Concerns Are De Minimus Because Corporations Can Spend to Influence Already
Just in case, or perhaps it is their usual response to liberal slippery slope arguments, the majority observes that its actions are really not that big of a deal and will likely not result in some sort of Atwoodian policorporodystopia because corporations already have the ability to buy their candidate.
“Even if §441b’s expenditure ban were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures.”
But never fear, actual living breathing human people, for SCOTUS assures us that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”
III. CONCLUSION
So, what does this opinion mean? And what the hell do we do?
Well, it means, quite simply, that SCOTUS has greatly expanded the constitutional rights of a corporate “person.” So now, in addition to simple and logical “rights” like ability to bring or defend a judicial action, a corporation now enjoys rights that seem necessarily tied to human existence and experience.
And yes, it does open the door for rampant corruption. Or, if you prefer, takes what was a very open, regulated, and transparent “window” and just gives the whole damn building to Wal-Mart. And yes, that may well be histrionic, but it simply illustrates my point that ALL things are either a slippery slope or de minimus. And when it comes to corporate involvement in elections, yes, I tend to fall on the slippery slope side.
Because a corporation simply is NOT a U.S. Citizen in the same way that you or me or my child or Bill Gates or my odd-bird neighbor is a U.S. Citizen. A corporation does NOT in any way whatsoever have the same interests at stake in a political election – its interests are SOLELY economic. A corporation cannot get laid off, get sent to war, go to prison, get married, have a family, get an education, go on welfare, get a divorce, retire, collect social security, be born or die.
And it is utterly offensive to everything on which this country was founded to suggest that a corporation is fundamentally ‘the same’ as a human U.S. citizen.
So, if you feel the same way, start contacting ALL your elected officials NOW and insist that they get on the ball with a Constitutional Amendment. Check here or here for more information. And check out the video in my previous post on this matter for more information.
SouthernFemaleLawyer 