How the Roberts Court Announced its Coup
Sometimes the best way to understand current events is to follow the "undercurrent events" that drive them. To understand the Supreme Court's rollback of regulations on corporate electioneering in Citizens United, Appellant v. Federal Election Commission, follow the Court's conservative majority as it actually discussed the case on September 9.
What the Justices said was drowned out by the chatter about President Obama's big speech to Congress on health care that same day. But the consequences of this undercurrent for the United States, let alone for Obama's health-care hopes, will now swamp even Scott Brown's filibuster-boosting victory in Massachusetts.
Just compare this week's ruling with what the justices said in September, and you see that they didn't learn anything from the hearing, because they didn't intend to.
1. Questioning Solicitor General Elena Kagan in September as she defended the federal regulations, Justice Antonin Scalia wondered impishly if he was being "too cynical" to suspect that Congress had enacted curbs on corporate electioneering to shield itself against well-funded challengers. Kagan had to inform him that business gives 10 times more to incumbents, who can and do return the favor many times over.
Kagan couldn't resist adding that, far from protecting incumbents, the McCain-Feingold campaign-finance law "may be the most self-denying thing Congress has ever done." That drew a few chuckles in the court, but outside the hearing that day, Sen. Russell Feingold noted that, indeed, the stench of legislative corruption by business had shamed Congress into passing such laws.
Apparently Scalia had had no idea, and this week's ruling just drops the subject, asserting simply that "the anti-corruption interest is not sufficient to displace" the corporate right to speech.
2. Outside the September hearing, Feingold's co-sponsor, Sen. John McCain, rejected "the [conservative majority's] premise that corporations have rights as citizens" -- rights to free speech, for example. McCain is on the mark, for reasons the framers of the Constitution understood so well that they made a specific exemption for "the press," the only industry named in that document.
But inside the Court, Scalia kept trying to distract attention from the fact that the First Amendment wasn't written to protect corporate "speech." He kept emphasizing that 96 percent of the corporations "silenced" by the curbs are single-shareholder, "mom and pop" hairdressers and car dealerships that can't overwhelm public debate. Kagan had to remind Antonin the Innocent that a small corporation's sole owner can transfer and use its resources to speak out as a citizen anytime, without offending anyone else involved in the business.
But as the current (or recent) curbs on outright corporate electioneering are removed, big businesses, whose "owners" change hourly at the click of a broker's mouse, will indeed overwhelm public elections, and to only one end: While living, breathing citizens sometimes rise above their self-interests as corporate employees and consumers to make choices for greater good, a business corporation's charter and shareholders don't allow it to do that. (Hence all those corporate PBS commercials pretending that they do.)
Yet this week's ruling insists that "by taking the right to speak from some," public regulation "deprives the disadvantaged person or class of the right to use speech to establish... respect for the speaker's voice" and deprives "the public of the right... to determine for itself what speech and speakers are worthy of consideration."
3. Scalia even adds, in a concurring opinion, that to "impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate."
I've never thought of big corporations as "disadvantaged" in speaking. And, impressed though I am by Scalia's "modern free economy" these days, I'm a bit reluctant to "celebrate...the addition" of corporate speech to public life. Has it really been missing? Has anyone been depriving you or me of our right to determine that business' views deserve consideration?
4. In September, Chief Justice John Roberts fretted that the Government was "extraordinarily paternalistic" in assuming that shareholders can't "keep track "of what corporations are doing with their investments. Kagan reminded this Alice in Wonderland that most people with retirement plans don't even know which corporations they "own," let alone whether their investments are being misused.
The ruling now assures us that new technology makes it easier to know and that "corporate democracy" rectifies abuses.
5. At the September hearing, Justice Kennedy became exercised by the deep thought that bans on corporate electioneering silence those who know the most about the very industries that Congress regulates. Kagan reminded him that no law keeps corporate lobbyists from swarming all over Congress, where they even draft legislation. By barring direct campaign expenditures, she said, "we're only separating persuasion [in lobbying] from coercion."
Yet now Kennedy, writing for the majority, quotes Scalia's claim that the legislation "muffles the voices that best represent the most significant segments of the economy."
This ruling will amplify, many times over, the distortion of our public life by "artificial being[s], invisible, intangible, and existing only in contemplation of law," as Chief Justice John Marshall described corporations nearly 200 years ago. We, the people, create them, regulate them, bail them out, license them for specific purposes, and have every right to bar them from using shareholders' investments to overwhelm the democratic process.
The ruling thwarts that right with soaring abstractions (see Roberts' concurring opinion) about corporations as voluntary associations of citizens joined in a "common cause."
That line of reasoning does free the labor unions and iconic "mom and pop" corporations to campaign for their favored candidates, too. But unions and small businesses get weaker as big businesses' power over public life gets stronger, because big business doesn't put the public interest before profits.
So the justices just pretend that the two are the same - even though the biggest corporations are evolving beyond American control, in ways the Court doesn't mention.
The free speech that corporations already exercise so vigorously and ubiquitously as consumer marketers and trainers of labor is transforming our public life beyond anything envisioned by the framers, whose "original intent" the conservative justices invoke defensively in the ruling but don't square with the founders' own suspicion of corporations, as Justice John Paul Stevens shows in the Court minority's devastating dissent.
Stevens' dissent also quotes Theodore Roosevelt's admonition to Congress in 1905 that "All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be... an effective method of stopping the evils aimed at in corrupt practices acts."
Congress has never gotten that far, but it has tried periodically since 1907, because the stench of money in politics was so great, as Feingold said in September. He warned then that a ruling like this "would prevent us from legislating," from regulating what we ourselves had created.
Now, "Exxon or any other firm could spend [Michael] Bloomberg-level sums in any congressional district in the country against, say, any congressman who supports climate change legislation, or health care," as Michael Waldman of the New York University School of Law's Brennan Center lamented to the New York Times.
.Justice is properly blind, but not as blind and small-minded as the men who lifted the hems of their black robes hypocritically above the muck of political and economic life that makes laws like McCain-Feingold so necessary. The September hearing shows them behaving like mere lawyers who, since they already know their client and the side they're representing, ask only rhetorical questions, not open-minded ones.
Judges are supposed to be better than that, but when Kagan gave the conservative Justices answers that challenged their premises and facts, they simply changed the subject.
Citizens United was never about "freedom of speech." It was never about "censorship." Ever since it was taken up by the Roberts Court, it has always been about judicial radicals' determination to give corporations "rights" a free people should never give them.
I wrote three columns about this case in September, one in the Boston Globe and two right here. But that month's current events eclipsed the undercurrent event that has now arisen to swamp us.
We won't have to wait until November, 2010 to know what has hit us. All we have to do is watch our members of Congress change while just thinking about it.

















Scalia and the other four are nothing but political hacks carrying out what they promised to do at their first opportunity. Why we don't jail the ones who participated in Bush v Gore is beyond me. What they have done is to invite corporations to simply buy the legislative branch and the Presidency to solidify and make permaenent their complete control of our system of government. It is the textbook definition of fascism: merger of corporate and state power.
January 22, 2010 11:45 AM | Reply | Permalink
Agree.
The Democrats have to be kidding if, as Obama has proposed, they think the GOP will allow new laws to restrict corporate spending by, for instance, making a shareholder vote on it mandatory.
January 22, 2010 12:07 PM | Reply | Permalink
In my effort to support your concrns, hopefully the following several mentions will assist;
1) Simply it appears correct to assume and surmise that it is impossible to have the enactment of the Death Penalty or threat thereof and have a viable Democracy, especially for the long term.
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3) To my understanding, I agree that and it is mandated our US Constitution, Bill of Rights that our US Supreme Court be held accountability, when applicable. Therefore, in an additional area of concern is that each member of our Supreme Court should be held accountable for the enactment of the death penalty as all have refused to allow cruel and unusual punishment. Our US Supreme Court Members as a venue have allowed the life of a Democratic US Citizen to be put to death at the hands of others and in the name of our Country and our US Constitution, Bill of Rights. These alleged crimes by our US Supreme Court Members. These alleged crimes should be reviewed immmediately, today and on an Individual Basis by our US Senate Judicary Committee Members, et all for the immediate halt to these crimes by our US Supreme Court Members. These are clearly and unmistakeable crimes against our US Constitution, Bill of Rights and Civil Rights Laws. Also these crimes are not in compliance within our US Declaration of Independence and not in compliance within any Democracy, Law or Religion.
Thank you for your time and consideration.
January 22, 2010 2:33 PM | Reply | Permalink
To Whom It May Concern, 1/22/2010
As Mr. Jim Sleeper. the Author of this Published Public Blog has recently blog commented replied (see below), I will and again mention the following, especially should I be accorded the US Constitutional VESTED RIGHT and INTEREST as US Citizen and/or as a US DOJ/INS Whistleblower as accorded and recorded within my case files FEDCIR Dockets #00-3446 and #02-3254.
Please note that in my voluntary compliance with Mr. Jim Sleeper request, I have already several hours ago forwarded copies of my posts to this TPM Mr. Jim Sleeper Article to Mr. Tom Devine and Mr. Stephen M. Kohn at the Government Accountability Project and the National Whistleblower Center. Also, Please note that the late Senator Edward Kennedy, Senators Dianne Feinstein, Charles Grassely, US Senatte Judicary Chairpersons, Congresswoman Jane Harmon and many others (including the US Supreme Court, which did not reply) already have my case files for many years and have had my Authorization to Represent me for many Years on my DOJ/INS Whistleblower matters and this (directly and/or indirectly) related Subject matters.
If there are any (additional) suggestions, questions or concerns, please let me know at your earliest convenience.
Thank you and all for your time and consideration.
Sincerly,
Axel
Axel V. Sabersky
January 22, 2010 6:50 PM | Reply | Permalink
Please note that I also have written on President Elect Barack Obama Briefing Book and I have sent a direct letter to President Barack Obama, US AG Eric Holder and (General) VA Chief Secretary Erik Shensiki in reference to many of these seemingly highly important matters and concerns.
My Letter was certified as received at the Washington DC White House, on mid-late
December 2009.
January 22, 2010 7:01 PM | Reply | Permalink
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December 16, 2010 8:04 AM | Reply | Permalink
Can China (or any other govt.) set up a corporation here, (China Inc.) and pump unlimited funds into elections? Is there any way for the origins of the money to be legally hidden?I have a few locally based mortgage quotes and mortgage rates websites devoted to their specific areas. michigan mortgage rates and focus on getting the latest mortgage and refinance rates to their visitors Can a broadcast company now legally refuse to sell airtime to a candidate, or give free airtime to a candidate?
maryland mortgage rates If a bank is set up and ten people buy $1,000 worth of stock and the bank decides to spend $5000 on elections, causing the stock to loose half it’s value, is that legal?
February 1, 2011 9:32 PM | Reply | Permalink
"the voices that best represent the most significant segments of the economy"
Not a Republic, not a nation of laws, no "of the People, for the People, by the People," but simply an "economy."
Chilling.
January 22, 2010 11:53 AM | Reply | Permalink
Why does anyone believe that Scalia is honest?
January 22, 2010 12:59 PM | Reply | Permalink
"Chilling" is really the operative word to describe this latest SC ruling.
For years the various Courts have ignored that very tried and very true argument that in theory, theory and practice are the same thing but in practice they're not. And again, in this latest ruling the practice of the so-called theory behind the ruling may well kill and bury forever our already very sick democracy.
The accepted definition of corporations is that they are legal fictions - nothing more than bundles of contractual agreements. Perhaps the time has come (maybe already gone?) when we the people should create our own legal fictions, bundle some contractural agreements together, declare our 'bundle' a person with all the rights and priveleges presently accorded other 'corporations'.
January 22, 2010 1:34 PM | Reply | Permalink
Sorry, but this is what happens when people put the fight against gay marriage over the health of the country.
People were duely warned about the consequences of a second Bush term (and a first, for that matter), and this is a case where his selection of supreme court justices is a gift that just keeps on giving.
January 22, 2010 3:57 PM | Reply | Permalink
Jim, never could understand how a corporation could or should be accorded the rights of flesh and blood people...citizens.
January 22, 2010 4:37 PM | Reply | Permalink
I'm afraid I'm dumb. The first thing that came to mind was the question of whether corporate political speech is a business expense? If so I wonder how Congress and State Governments will deal with the loss of revenue that this new legitimate expense will shave from profits? Secondly while non-profit corporations political speech is restricted in order to maintain their non-profit status doesn't this ruling open up equal protection problems? I may really miss something and that's why I'm putting these questions out.
January 22, 2010 5:20 PM | Reply | Permalink
On the nonprofits: exactly. And what's one of the biggest categories of non-profit corporations in the US? Churches.
Expect a follow-on challenge that will overturn the political speech restrictions on churches. Won't it be a beautiful sight to see your local megachurch decked out in "Palin/Beck 2012: Down with the Darkies" posters?
January 24, 2010 10:35 AM | Reply | Permalink
Corporations are a legal invention whose sole purpose is to protect property rights. All rights of corporations derive from property considerations. They can own, buy and sell property. They can enter into contracts, which govern the exchange of money and property (or services, which is analogous). They can sue or be sued, impose or have imposed liens on property.
There are NO rights of natural persons that appertain to corporations other than those connected with property rights. They can't vote. They have no 5th amendment protection against self-incrimination. They do not have free speech rights.
I'm getting damn sick and tired of these activist judges inventing new rights where they never existed before.
January 22, 2010 5:41 PM | Reply | Permalink
Agreed. I hope that everyone who's as sick and tired as you are will take the trouble to pass the above post on to friends and colleagues who might be interested -- and should be. I don't know how many people actually listened to the September 9 hearing I describe in the column. Listening to how these judges handled this matter was like experiencing a dark revelation. One can click the second link in the post and listen, too, but at least I hope that more people will read the post itself. Just copy the url at the top of the screen and send it around. Thanks.
January 22, 2010 6:20 PM | Reply | Permalink
If a corporation funds advertisements for a particular candidate - Candidate A - then how can Candidate A vote on any legislation impacting 'negative or positive' that corporations' business, products, or services without an illegal/unethical/immoral 'conflict of interest?' Surely Candidate A would be mandated to recuse him/herself from the vote.
January 22, 2010 6:31 PM | Reply | Permalink
As to all 96% of Scalia's "mom and pop" corporations, the owners, like all owners of corporate shares, can speak (about political topics or about anything else) as well as the corporations themselves; and more appropriately, because they are themselves citizens and voters. Let these corporations pay a salary (or dividends) to the owners/shareholders so that they will have that "voice" that only money -- it seems agreed -- can buy.
A newly urgent puzzle is how to define POLITICAL ACTIVITY (lobbying, campaigning, donations to politicians or to campaigns, communications designed to sway voters or to sway Congress or administrative agencies, sponsored science intended to do the same, etc.) and distinguish it from non-political BUSINESS ACTIVITIES.
Hope we can do it and legislate (or amend the US Constitution) to generally forbid the first without forbidding the second.
January 22, 2010 7:30 PM | Reply | Permalink
This will be seen, in hindsight, by whoever writes the history of such things, somewhere, at some point in the future, as the most damaging Supreme Court decision in American history.
They have, at the stroke of a pen, destroyed what remained of American society, and put government up for auction to the highest bidders.
Perhaps the one consolation is that the bribery is now going to be out in the open, instead of in furtive handoffs of cash-stuffed envelopes by operatives of questionable character.
January 22, 2010 8:43 PM | Reply | Permalink
I agree, TOG. This ruling will be seen as the straw that broke the back of our Republic.
I'm not sure the bribery will be so much out in the open. I think corporations will be free to create shells designed to hide who is really behind their "speech".
The only solution is a Constitutional amendment. We need to get started on that right away. I will do some searching with the google, but if anyone already knows of organizations working on this specific issue -- that is, the false ideas that (a) corporations are "people" (and protected by the Bill of Rights), and (b) money equals speech -- then please post links here. I'll be back if I find anything.
-- ARG
January 22, 2010 9:44 PM | Reply | Permalink
Okay, it didn't take me too long to find some web sites taking up this cause. This place is new, and may gather momentum:
http://movetoamend.org/
Here is another worth looking into:
http://www.reclaimdemocracy.org/political_reform/proposed_constitutional_amendments.html
And I should have thought in my first post to reference People for the American Way, because I already knew that they have been on this issue all along:
http://site.pfaw.org/site/PageServer?pagename=media_2010_01_pfaw_calls_for_constitutional_amendment
I'll keep digging.
-- ARG
January 22, 2010 10:24 PM | Reply | Permalink
Thanks VERY much for this, ARG. I'm posting it a second time in the comments section of a more recent post I've done this morning, a follow-up called "More Obfuscation on Corporate 'Speech.' One of the commenters there asked who is working on this, and I am responding by reproducing your post.
January 24, 2010 7:40 PM | Reply | Permalink
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February 12, 2011 7:04 PM | Reply | Permalink
Creationist judges have enhanced the life of the un-dead by giving zombies the power to speak. Those judges can't be real people cuz just like the corporations they idolize, they aint got no soul.
It should make an interesting movie in Multi-D. I can smell it now.
January 22, 2010 10:51 PM | Reply | Permalink
RE: "the Roberts Court Announced its Coup" - Sleeper
MY COMMENT: For some reason I think the term "Putsch" is more apt.
January 23, 2010 12:05 AM | Reply | Permalink
Has anyone realized yet that a corporation does not have to be one made up of American owners? It can be a foreign government owned corporation. This allows Germany, for example, or China to spend billions of dollars to control our government. Isn't that treason? And, by not only condoning, but enabling that treason, our Supreme Court is itself treasonous. They are safe from impeachment only because Repubs and many Democrats would never vote for an impeachment for fear that a non-racist court would replace the current one.
January 23, 2010 12:49 AM | Reply | Permalink
Is there any precedent in American history for the Chief Justice to be summoned to appear before Congress, under oath? I would like to see Schumer subpoena him to inquire about direct influences on the Court from Republican politicians.
January 23, 2010 8:16 AM | Reply | Permalink
From what I gather, this opinion is fairly sweeping and inclusive. Perhaps federal regulation of corporate charters, and the loss of current perpetual charters by attrition when said corporations engage in illegal behavior is the only way out.
January 23, 2010 10:35 AM | Reply | Permalink
The only way out, once the Supreme Court makes a boneheaded decision is a Constitutional Amendment. Now is the time for one that specifically states that organizations, whether corporations or any other type, are not vested with any of the rights defined in the Constitution. Those right are rights of people, not organizations. The Constitution already does this in a too subtle way, by mentioning only the press as a group with special rights, but subtlety is lost on a group of idiots like Scalia, Thomas and Roberts.
January 23, 2010 11:53 AM | Reply | Permalink
"because they didn't intend to."
There's the money line...
Literally.
January 23, 2010 12:02 PM | Reply | Permalink
Can some one more knowledgeable in the laws answer a couple of questions about the ramifications of the SCOTUS ruling?
Can China (or any other govt.) set up a corporation here, (China Inc.) and pump unlimited funds into elections? Is there any way for the origins of the money to be legally hidden?
Can a broadcast company now legally refuse to sell airtime to a candidate, or give free airtime to a candidate?
If a bank is set up and ten people buy $1,000 worth of stock and the bank decides to spend $5000 on elections, causing the stock to loose half it’s value, is that legal?
Banks use deposits to loan out at interest etc., is part of that money operational?
How much of every dollar, if any, I deposit in a bank can be legally used in elections now.
Do you think the first thing to go will be corporate taxes, or something else?
Is there any realistic way that this new financing cluster**** can be fixed?
January 23, 2010 3:06 PM | Reply | Permalink
To my comprehension, your first sentence may suggest to exclude me and many others.
In a compliment to my previous blog comment reply posts and any 'Fair and Equal' provisions in Democratic Law, please allow me to suggest that the resolves to your concerns could hopefully and easily be resolved from the many tremendous seemingly successful accomplishments that have been achieved within the recent Century's and especially Decades.
Although, first, foremost and most importantly the concern as I have correctly stated must be established, otherwise words will not be able to have the support of a 'In God We Trust' lawful Democratic Society.
Thank you and TPM Muckracker in advance for allowing me to reply to your concerns.
January 23, 2010 4:22 PM | Reply | Permalink
Damn activist judges!
January 24, 2010 3:36 PM | Reply | Permalink
I don't in any way understand that decision, how in the world will it advance democracy? I'll be interested to see how it affects the mid-term elections.
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