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As Obama Delivered, the Justices Delivered a Laugh a Minute

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As I listened today - and as you can right now --to Supreme Court justices questioning the proponents and opponents of a suit to overturn campaign-finance regulations, the main point of contention was whether the McCain-Feingold law and previous rulings violate the free-speech "rights" of those non-citizens and non-persons we call corporations. Listening in made me an enthusiast for audio (and, someday, video) coverage of the Court's public sessions.

For one thing, it was downright inspiring -- at least to me as a civic republican -- to find the formidable conservative Justices Antonin Scalia and John Roberts so willfully ignorant of political and corporate life. Justice is properly blind, but not as small-minded as the justices, who sounded as if they had no understanding of what it takes to run for office or to run a corporation.

Liberals on the court are inexperienced at this, too (although Justice Sonia Sotomayor knows the corporate world firsthand). But it was conservatives who fastidiously lifted their hems above the muck of real political and economic life to justify sweeping away regulations that keep big-corporate money from overwhelming the democratic electoral and legislative process. They also all-but dismissed legal principles and doctrines as different as stare decisis and "original intent.

As Feingold noted outside the Court (and as the liberal Justice Stephen Breyer noted within), the depth, darkness, and stench of legislation corrupted by business money have shamed many less-than-noble legislators for more than a century into curbing the electoral speech of corporate interests.

And no wonder. We, the people, brought business corporations into being in the first place; allowed them to amass wealth in uniquely advantaged ways; subsidized them when they failed; and, indeed, have every right to bar them from using shareholders' investments to skew and even coerce a democratic process that is supposed to set the very rules for their money-making by reflecting the deliberations of people who -- as citizens, not just shareholders -- don't reduce their best interests to money-making alone, as corporations must by the very laws and charters that empower them.

The state has "a compelling interest" in doing this. "I don't accept the premise that corporations have rights as citizens," said McCain. Feingold agreed, noting that if they are given such rights, "the rights of the citizens will be overrun. We saw the corruption [that came from that presumption], that's why we acted."

If the court declares such legislation unconstitutional, Feingold added, "it would prevent us from legislating" in this area thereby blocking the democratic process from regulating the corporations that it created. Worse yet, once corporations have the option of inundating campaigns with their narrowly self-interested commercials, market pressures will drive them to do it.

Justice Sotomayor wondered if, indeed, the courts' real "error to start with" hadn't been its designation of corporations - in 1886, the era of the robber barons -- as "persons" in a technically legal but truly fictive sense that has emboldened their champions to claim "rights" that properly belong only to real people.

Justice Scalia, determined to ignore the First Amendment framers' original intent to protect living speakers from encroaching interests, and determined to transform the mythical corporate "person" the court has created into something that has rights to free speech, tried several gambits.

He kept emphasizing, as he has often, that 97 percent of corporations are single-shareholder outfits, mom and pop hairdressers and new car dealers who can't overwhelm public debate or buy off legislators, yet whose free speech is "silenced" by the current law's sweeping bars on direct corporate funding of campaign messages.

Scalia had to be reminded by Solicitor General Elena Kagan, chief advocate for the existing curbs, that the hairdresser or auto dealer who is the sole owner of a business can transfer some of its resources to his or her own direct advocacy as a citizen anytime he or she wants to plunge into the electoral process, without deluding or inconveniencing anyone involved in the business.

Meanwhile, if the currrent bars on big-corporate contributions were removed, the 3 percent of corporations that are huge and "owned" only by swirling whorls of shareholders who shift in and out at the click of a broker's mouse, would be able to overwhelm public debate and elections.

Nothing daunted, Scalia next wondered aloud if it's really so cynical of him to suspect that a Congress of incumbents enacted those curbs on corporate contributions not for the sake of some noble and compelling state interest but mainly to protect its own incumbency from challenge by insurgents.

Kagan had to inform this willful ignoramus that corporations give 10 times as much to incumbents as they do to insurgents, because they find it rewarding to invest in (and inflect the behavior of) the people already in office. Apparently, Scalia the Innocent had had no idea. If anything, Kagan added humorously, eliciting chuckles in the Court, McCain-Feingold may have been "the most self-denying thing Congress has ever done."

And why has Congress done it? Because the evidence that corporations were buying legislators stank to high heaven. And all that Congress actually did was require the principals of corporations to contribute separately, as individual citizens, and below certain amounts, and openly, through public disclosure, to Political Action Committees rather than to secretive front organizations like Citizens United, creator of the swift-boating "Hillary: The Movie," whose suit had prompted this hearing.

Justice Anthony Kennedy, who sides with conservatives and business corporations on this, worried piously if such legislation, however well intentioned, has the effect of silencing corporations that, after all, are often the most knowledgeable about many of the industries and practices that Congress regulates.

Kagan had to inform Kennedy that nothing in campaign-finance legislation silences corporate lobbyists, who swarm all over the Hill, in and out of committee rooms where legislation is being drafted. By barring direct corporate contributions to campaigns against legislators who've crossed corporate interests, she said, "we're only separating persuasion [in lobbying] from coercion."

Chief Justice Roberts became exercised against claims that if big business corporations are allowed to contribute directly to campaigns against legislators they don't like, they'll use their shareholders' investments for purposes to those shareholders themselves weren't consulted about. Like Alice in wonderland, Roberts wondered if it wouldn't be "extraordinarily paternalistic" of the government assume that shareholders can't "keep track "of what the corporations they own are doing.

Moreover, he asked rhetorically, don't corporations have interests just as diverse as those of individual citizens, since corporations, too, take different sides on different issues?

I'm not sure that Kagan or the liberal justices really succeeded in explaining to Roberts that corporations are barred by their charters and by law and by competitive market pressures from pursuing interests any more diverse than the narrow and all-important one of keeping their stock prices up every quarter, whatever it takes, and that any of their managers or employees who pursue the greater public good while on the job will soon lose both their mandate and their jobs.

Corporations therefore don't deliberate in any republican sense that the framers of the First Amendment meant to protect. Only living, breathing people can do that, transcending their self-interest at times in dialogue with others.

As for using shareholders' money for electoral purposes which some shareholders wouldn't approve, Kagan had to inform Roberts that shareholders can't possibly keep track of dozens of corporations' activities when their ownership of them is shifted off and on constantly by mutual funds and retirement plans and that therefore the whole notion of republican intentionality in public deliberation is corrupted.

Our conservative guardians of the republic seem unable to understand this kind of corruption. Justice Ruth Bader Ginsburg had to remind them that conservatives had no problem being "paternalistic" when it came to zealously "protecting" members of labor unions from having any of their dues money used in election campaigns.

After listening to all this, I'm certainly for making public these audio transcripts of our great judicial minds deliberating about the meaning and fate of the republic. As a disinterested citizen, I appreciate being able to hear Roberts stumble through realities even more basic than the presidential oath that he flubbed while he was administering it to Barack Obama. But if this is how he deliberates, I hate to imagine how big business corporations do it.


32 Comments

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And don't forget that the agencies of criminal prosecution, local, state and federal have used the fiction of corporate "person" to convict the corporation of criminality without the nasty business of prosecuting the actual persons that actually did the criminal acts.

While this point has little to do with the actual debate today, it exemplifies the real problems nonetheless

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Sotomayor is on to something there!

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Thanks for highlighting this in the glare of the health care debate. It's hugely important.

The argument that entities that owe their very existence to the state should have the same inalienable rights as the citizens who form that state would be laughably bizarre if it wasn't so close to becoming the law of our land.

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Speaking of someone who was on to something:

The result of these developments is an oligarchy of private capital the enormous power of which cannot be effectively checked even by a democratically organized political society... the representatives of the people do not in fact sufficiently protect the interests of the underprivileged sections of the population. Moreover, under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult, and indeed in most cases quite impossible, for the individual citizen to come to objective conclusions and to make intelligent use of his political rights. -- Albert Einstein, 1949
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Um, you mean he predicted Tea Baggers? WOW!

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If corporations are "persons" why don't they just cut out the middleman and allow them to run for Congress? Or, heck, go all the way and have corporations serving on the Supreme Court and as President?

Might just as well -- that's in effect what we have now, and will have more of when the Supremes finish "deliberating". Except now Congress-critters are simply proxies, stand-ins, when we could get the real thing if we took this silliness to its illogical end.

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Or let them sit on the Supreme Court. It's a lifetime appointment and a corporation can be kept alive forever.

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I would love to see a judge sentence a corporation to prison. Would that be the executives and/or the stock holders?
Get that one in front of the SCOTUS and watch Roberts and Scolia argue the rediculousness of a corporation being held to the responsability of a person.

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Corporations don't deliberate in any republican sense that the framers of the First Amendment meant to protect. Only living, breathing people can do that, transcending their self-interest at times in dialogue with others.

That is an education in itself for the Justices.

Great explanation; I have been waiting all day for a report of what ocurred at the Court. I agree; let the cameras in; we need to know what the discussions are really like.

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It's true that summaries of the arguments were a big slow in coming. For those who have the time, thought, there's no need to wait all day: By 2 pm or so, the C-Span website (see the first link in my post) had the oral arguments recorded and available, with a helpful photo and caption for whichever Justice or advocate is speaking at any given time. Of course, one has to have time to sit and listen for 80 minutes, as very few do. So, yes, good summaries are vital. Mine here, of course, is a critique or commentary -- a characterization, not a summary.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


How can the prohibition against publishing or distributing a movie (speech) not be described as a law that prohibits speech? The case isn't about contributions to a campaign (money, not speech), but the distribution of real SPEECH. We may not like the constitution in this area, so it contains a way to change it; it does not include a way to ignore it.

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you have missed the point entirely.

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No, I haven't. And I suspect (hope) there are 5 justices who agree.

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The issue is not production or even distribution of the movie by citizens. The issue is about funding of the movie by entities that are not human, that have no skin in the game because they have no skin to lose.

Any real live human beings wishing to use their own funds to participate in public discourse are welcome to do it.

I would wager that you are already well aware of these things.

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John has an excellent point, and that is that the whole argument about corporations as people is irrelevant. The Constitution doesn't say that people have the right to freedom of speech, it says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;. . ."

That's very simple and very clear.

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But, Don, one of the ironies here is that some of the conservative judges often slide right by the language to insist that we must focus on the founders' "original intent" in that language. By that standard, most of the founders were obsessed with the civic virtue of citizens debating course of the republic. It's hard to imagine them endorsing anything like what big-corporate funding, driven only by narrow, bottom-line considerations, does to distort and indeed submerge real republican dialogue.

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Jim,
So you endorse the conservative view that original intent trumps actual language in the Constitution, and then move on to imagine what the Founders intent was, which differs from what conservatives imagine it was, which is the problem with endorsing original intent in the first place.

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On "original intent," I think it's something to be consulted. In this I follow to some extent what the political philosopher Michael Sandel (cited in my previous post and a Boston Globe column on this subject), who steals some of conservatives' thunder by emphasizing that the American republic was founded with some tenuous but critical hopes for civic virtue -- for the notion that citizens, deliberating in vigorous, open debate, could rise above self-interest at times to consider the good of the whole. This is something that human beings can do but that corporations -- mandated by their charters and by law and that are driven by market pressures to maximize profits or go out of existence -- cannot do. That's one of the reasons why business-funded "speech" isn't really free speech. There are other reasons -- such as the sheer power of lavishly funded commercial speech to overwhelm citizen deliberations. The point is that, yes, I factor in "original intent," not as conservatives do to trump anything "liberal" but as civic-republicans do who want to preserve a republic that brings the highest and best out of its citizens, not just a liberal democracy that simply aggregates competing interests and brokers among them.

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Hmm, too bad there's no truth in advertising law, no law against securities fraud, no law against making false statements to congress or federal investigators, and particularly good that there's no law restricting individual campaign contributions, which are ("money talks") as basic of form of speech as you could as for.

Oh, wait.

What's remarkable here is that they're talking about giving corporate persons way more rights than individuals in terms of political speech. An individual can't anonymously buy tens of millions of dollars worth of TV time to push a political point, but under the rules that seem to be contemplated, a corporation would be able to do that, no problem.

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paulw,
You're confusing speech which damages people, like yelling "fire" in an auditorium, and false testimony in legal cases, with political speech.

Regarding limitations on individual contributions, have the Supremes ruled on that? It appears to be an un-Constitutional limit on freedom of speech.

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Don,

It's ok to yell "fire" in a crowded theatre if there is actually a fire.

I thought you might like to know.

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Agreed.

But there is no restriction of the corporation's right to speak for a very clear reason: a corporation can't speak.

You do understand that, I hope. An employee of a corporation is not the corporation.

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This may be one of the most important decisions made by this court. It should receive front page coverage, and cameras should be providing us with front row center seats to the drama.

http://pacificgatepost.blogspot.com/2009/09/political-campaign-funding-democracys.html

Voting taxpayers should want to increase controls on campaign funding, not reduce them.

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As timidly as Justice Sotomayor seems to have made her point, it is so far the most useful observation.

There is some idiocy being demonstrated by a couple of these Justices.

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I think the Robert's court overturning these rules is an important first step in complete campaign finance reform and mandatory public financing of all elections. I think we'll have to utterly break the system before it can be repaired. Tinkering around the edges only enables it and continues it.

Second step, of course, is passing law that either removes personhood from corporationa, or attaches full citizenship to them, including the ability to arrest a corporation and all its officers and board members for felonies committed by the corporation.

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Any change in the status of corporation as person will require an amendment, not simply passing a law. Only an amendment will preclude the Supreme Court from ruling against corporations.

Now, of course, we know that such an amendment would be impossible to pass. And so do the Supreme Court justices.

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Actually, all it would take is impeaching Scalia, Thomas and Kennedy for Bush v. Gore, then replacing them with three more Sotomayors. Then the court could reverse itself.

It is pathetic that we have to have an amendment to reverse that which was never an amendment, nor even written into the Constitution. Wouldn't it be nice if the 10th Amendmentists would point that out sometimes?

As if.

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This will be one of the most important decisions made by this court. It should receive front page coverage, and cameras should be providing us with front row center seats to the drama.

http://pacificgatepost.com/2009/09/political-campaign-funding-democracys.html

Voting taxpayers should want to increase controls on campaign funding, not reduce them.

The foundation of the American Democratic Process is at stake.

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It has been since 1980 - except for 8 years during the Clinton admin and not so good then

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If this decision goes in favor of "conservatives" (which I consider almost a certainty), I don't think we'll hear a lot of Republicans complaints about "activist" Supreme Court justices.

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While I don't have a strong opinion on the issue, I respect the characterization here. Recommended.

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Hey, TPM: how about a little front-page coverage of this issue?

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