By Jim Stanford on January 21, 2010
Square Dealer.
Back-to-back bummers the last two days. I haven’t felt like this since, well, Bush was president.
Today’s Supreme Court decision overturning the century-old ban on corporate donations to political campaigns means, in the words of an erudite friend, “Corporations are going to go from mostly owning politicians to completely owning them.”
To fully understand the implications, read this.
The ban in question was passed under Teddy Roosevelt, who said: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”
We could use a Bull Moose wielding a big stick.
Posted under Business, Crime, Democratic Party, Politics, Republican Party
I think you might want to read the decision. The Supreme Court did not rule that regulations on corporate contributions to politicians are unconstitutional, and thus did not overturn the Teddy Roosevelt-era law that first did so. In fact, the Court specifically said that there was a legitimate government interest in regulating contributions. The Court only said that it is unconstitutional to ban corporations from using their own funds for political speech, including ads.
In response to what gj said, I think that technically you are correct, this decision overturns a 1947 law and not the Roosevelt law. However, the spirit of the Roosevelt is being overturned by this decision. All legal scholars are pretty much in agreement that the decision’s main statement is that, in terms of elections, corporations are entitled to the same legal rights as individuals. Meaning they can open up the coffers and start campaigning like crazy (this will essentially end Political Action Committees). I think that Jim’s reference to the Roosevelt law is to point out that government’s placing limits on corporate involvement began during the Roosevelt administration, and this is a sharp reversal from a 100 year+ trend in that direction. Hence the dissenting opinion calling this, “a radical change in the law” that ignores “the overwhelming majority of justices who have served on this court.
As to the statement, “the Court specifically said that there was a legitimate government interest in regulating contributions,” well there is still a ban on direct contributions to candidates, and I’m assuming thats what this reference is to, but that’s about the only regulation that has been left in place. What will not be prevented is corporations making and airing their own commercials, and campaigning for candidates on their own. That’s the whole point of this decision, what they can do besides donate $2500 like everyone else.
Another couple of interesting point from this decision:
- nullifies some key points to the McCain-Feingold bill that the Supreme Court held up six years ago,
-lots of corporations are not American owned/operated. How much more influence does this allow international interests to have on US politics? The Chinese are salivating right now.
-The Court has chosen to equate corporations rights in the US with individuals rights
-The decision will likely also apply to labor organizations
-If you look on the internet at different publications’ coverage of this, one of the things that stands out is legal scholars (liberal and conservative) ripping Chief Justice John Roberts’ majority opinion (basically questioning the scholarly value of the opinion, and pointing out that this is a classic example of legislating from the bench ).
MRL –
Your assumption that I was referring to direct contributions to candidates was correct – this was the subject of the Roosevelt era law and was unaffected (indeed reaffirmed) by this new ruling.
Several other points are worth clarifying:
- this Citizens ruling reverses a 1990 Supreme Court ruling and part of a 2003 ruling, but nothing in 1947 of which I’m aware. You are correct that this nullifies some of McCain-Feingold as a result.
- this Court does equate individuals’ free speech rights with the free speech rights of associations of individuals (including for-profit and non-profit corporations, unions, religious organizations, etc). But it would be wrong to suggest that they were the first to do so – that was settled law for roughly two centuries, including a 1978 Supreme Court ruling. The 1990 Court ruling was the first to abandon the fundamental First Amendment protection of “speech” and begin to apply that protection differently to different groups of speakers – that decision was the outlier, not this new decision.
- Roberts did not write the majority opinion, Kennedy did (Roberts wrote a concurring opinion). And to say that some legal scholars are “ripping” Roberts is true and not particularly relevant. This is a divisive issue, and it is very easy to find scholars on both sides. I have no idea what the split is in scholarly opinion and find it generally uninteresting in that scholars, as a group, may have a bias that I don’t share, and it’s therefore my obligation to judge the issue on the merits and not defer to others.
- As for the “legislating from the bench” criticism, I know that this criticism exists, but it doesn’t really apply hear. The more legitimate criticism is that the Court was activist in that the majority decided more than it needed to decide (I don’t entirely agree, but there’s certainly a reasonable argument here). Legislating from the bench traditionally suggests that the Court created new law where none existed. In this case, the Court actually removed new law created by the 1990 and 2003 decisions, and returned the Court to where it had been for the prior 200 years. This seems more like unlegislating from the bench.
As you suggest, corporations can now spend as much as they want, when they want, in support of or against any candidate. The law that was the subject of the Citizens case did not in fact prohibit all such spending in the past, it only banned it in the 30-60 day run-up to an election.
This decision is generally being viewed by those opposed to the decision as some new and insane view of the corporation as being on par with individuals in the eyes of the law. I would encourage anyone holding that view to actually read this decision and past decisions on this subject and, for that matter, the First Amendment of the Constitution. The First Amendment did not say that Congress shall make no law respecting individual speakers. It said that Congress shall make no law “abridging the freedom of the speech”. Until 1990, this had been understood to mean all speech, regardless of the speaker. Associations of individuals had always been accorded precisely the same free speech rights as individuals. The Court in 1990 decided that the free speech rights of corporations were not on the same plane as those of individuals – that was a radical decision and one that was out of step with a 200 year trend. This week’s decision was only out of step with a 19 year trend, and one that free speech proponents should celebrate.
The Supreme Court ruling imperils Wyoming law that prohibits corporate spending in elections: http://www.nytimes.com/2010/01/23/us/politics/23states.html?hp
gj — I have read interpretations of the ruling from the right wing, too, and I remain unconvinced this is in the best interest of citizens.
Corporations are not just “associations of individuals.” They are a legal construct set up to make money. Until remedied, this ruling is a disaster.
Here’s the thing about the Constitution – it doesn’t allow you to abrogate rights based on value judgments such as “this ruling is a disaster”. Regardless of how you feel about the implications of a ruling, the law is the law.
Regarding the “legal construct” argument, beyond the inconvenient fact that this claim has absolutely no basis in the Constitution, it also makes little practical sense. You would be comfortable terminating the free speech rights of the media? They are corporations just like every other – legal constructs set up to make money. And then there are legal constructs with other motives – church groups, non-profits, unions. Are they to be denied free speech rights as well? And on what basis? You have judged that legal constructs that make money have no free speech rights, while other legal constructs do?
Even the four Supreme Court justices who voted against this decision didn’t make that argument, and for good reason. The Constitution makes no exceptions regarding the identity of the speaker – “Congress shall make no law…abridging the freedom of speech, or of the press”. The minority in this case did not argue that corporations don’t have free speech rights – indeed, this has been accepted as fact since the First Amendment was adopted.
The minority argued that the government had a compelling anti-corruption motive in denying these rights. Of course, they fell into the same trap you did in that their logic would open the door for Congress to deny free speech rights to others, including wealthy individuals and the media (by the way, don’t try to use the “press” excerpt in the First Amendment to get around the media problem – this wasn’t a specific grant of free speech rights to media corporations – by press, the founders just meant speech facilitated by the printing press).
The founders believed that more speech was better, and had faith in citizens to be able to make their own judgments regarding speakers and their speech. They were also aware that if individuals couldn’t speak in groups, the government would have far too much power. With reelection rates in the House of Representatives currently holding in the mid-high 90% range, it’s hard to make the case that elected officials are disadvantaged with regard to speech.
When arguing for the revocation of one of our most fundamental rights, you really need to do more than just say that the speakers are in business to make money or that their speech will be a disaster. I notice ads on your site. Presumably these are paid ads? Perhaps you’re not established as an LLC yet or associating with anyone else, but you have already fulfilled one of your own requirements for the possible waiving of free speech rights.
when you are sold into slavery by your corporate masters, we’ll see what sort of value judgments you make.
my original political-economic expert adds:
and, from a legal scholar:
I know he’s right on at least one point: the pipe dream.
Heh heh, Didn’t check back on this one until today.
One crucial point to reiterate is that the court went WAY overboard in ruling on things they were not asked to rule on (look up the quotes from John McCain this week, he’s VERY pissed off). This is judicial activism, as gj pointed out, and it has no place in the Supreme Court.
As for the 200 year precedent in the US allowing corporate contributions, this comment ignores a huge chunk of American history. True the ruling specifically overturned a 1990 decision, but limiting corporate influence on elections predates that decision by 90 years. As corporations have exerted more influence on elections, Congress has pushed forward limitations on contributions, and that has been going on for over 100 years (in 1947 Congress pushed forward more strict measures to limit corporate donations). For the past 100 years, we have recognized that in order to guarantee the sanctity and independence of our democracy, there should be limits on corporate donations during elections. The fairness, openness (I’m talking to you Clarence Thomas), and free nature of our elections requires that we treat these instances differently. That has been a 100 year precedent.
I think Sandra Day O’Connor’s remarks this week about the threat to judicial independence are particularly relevant on this issue (The opinion O’Connor wrote uphold McCain-Feingold in 2003(?) is a wonderful synopsis of her views about this case). When we stop believing that our elections are free, our democracy will cease to be relevant. Studies consistently show that money wins elections, not all of the time, but most of the time. Increased money in judicial elections is particularly scary. International money in judicial elections is even scarier. Quite simply, in order to maintain that our nation is of/for the American people, we have to limit election money. Peace.
MRL
Oops. One more thing. gj, I agree with you that, as far freedom of speech goes, this is open and closed. But its not that simple.
Responding first to JS and his political-economic expert, I would say that what changed since 2003 was that the Court was asked to look at a specific case in which the action in question clearly violated the statute, but the statute violated the Constitution. Further, the progression of cases in which the Supreme Court was being asked to apply stare decisis made it quite clear that it was only a very small additional step to conclude that Congress can censor the media. This not insignificant detail is never addressed by those who believe this ruling was a disaster (many of whom, ironically, work for media corporations).
And as to the counting of the words in the Constitution, this is absurd and irrelevant. The Bill of Rights speaks to what rights deserve protection, not who should be protected. To follow your logic here, not only would Congress have the power to bar the NY Times from spending any money to publish a paper, but could also ban the Mormon church, seize the Sierra Club’s headquarters for use without compensation, and search and seize the ACLU’s computers without just cause. Political parties and unions would also not have any protections under the Bill of Rights. Seriously, think about it.
As for the legal scholar’s views, now we’re finally talking sense and finding some common ground. First, I agree that in addition to my belief that the laws banning corporate spending on political speech are unconstitutional, there is the reality that they were also ineffective when it came to blocking the speech they hoped to block (that of large corporations). So instead of undermining the First Amendment for no purpose, why not follow your legal scholar’s suggestions and strengthen reporting requirements and transparency. There is plenty that can be done without violating free speech rights, so let’s absolutely start there.
Finally, on MRL’s latest, it is true that the limits on corporate influence go back to 1907, but only in the realm of direct political contributions, which is a very different animal than independent expenditures. The Supreme Court certainly believed that until 1990. That 1990-2009 period was still, I would argue, the outlier.
Quick response since I think we’ve beat this one down pretty heavily (plus its likely to come up again when bipartisan legislation is passed to combat the decision). O’Connor’s opinion (I think she actually co-wrote the opinion) in 2003 speaks to the blurring of lines between direct political contributions and independent expenditures (in fact, that ruling was based largely upon the recognition that the nature of money in elections had changed drastically).
From a strictly freedom of speech point of view, there is obviously still a huge difference between direct contributions and independent expenditures. From an “integrity of democracy” point of view, the two are quickly merging into one. Clearly, this court has chosen the freedom of speech point of view. In the past 100 years the nation has taken an “integrity of democracy” point of view. Traditionally, in the extreme cases when freedom of speech has threatened to undermine our nation’s integrity (eg:displaying child pornography) we have taken steps to limit it. No one likes to do it, but sometimes it has proven necessary. It is my, and was the Supreme Court’s until now, opinion that this is one of those instances.
MRL – that is indeed the crux of the issue. While I was tempted upon reading the dissent to agree with that reasoning, I ultimately couldn’t see how it was possible to draw reasonable lines once you’ve taken that stand. There really is no logical argument I can see that Congress cannot extend such actions to the media once the independent expenditures of corporations are fair game for regulation. I’ll leave it at that – I just get riled by the arguments that the Court has suddenly decided that corporations are people, a point of view which completely ignores history and this ruling. Thanks for making the counterargument as it should be made.