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Judge H. Lee Sarokin

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Could Democracy Be Destroyed in the Name of Free Speech?

Posted: 01/04/12 05:22 PM ET

The First Amendment metaphor of "the marketplace of ideas" envisioned the barter and exchange of ideas, not their purchase and sale. The concept has always been that the robust discussion of divergent views and principles would allow for the public to make informed decisions. But what happens when those with unlimited resources overwhelm those who cannot compete financially? By extending the right of free speech to corporations, the Supreme Court in the Citizens United case has "unleveled" the playing field.

Let's face it -- the wealthy have always had a more powerful voice than the poor or the middle class. Those with money have traditionally influenced elections and have benefited from their ability to do so. But corporate money, the super PACs, have the capacity to tip the scales so far that even near balance is virtually impossible. We have seen evidence of it already in Iowa. After watching the media predict ever-changing winners for the last six months of an election (if it can be called that) which has no real meaning, the destruction of Newt Gingrich's campaign through TV ads is an event worth noting (even though there is some joy in it).

He describes the ads as "negative" while others describe them as the "truth." But no matter what their characterization, they are evidence of the power that has been granted by virtue of the Supreme Court's decision. And although the danger is huge in the national arena, I fear most for local races -- such as judicial elections. A corporation or industry can assure the election or defeat of a judicial candidate merely through the expenditure of large sums of money.

The isolation of the PACs from the candidates and the thought that disclosure and transparency will somehow correct the problems are both myths. Knowing who the culprits are or trying to read the small, fleeting print at the bottom of the ads is unlikely to diminish their effectiveness. Learning that the contributors and creators are somehow connected to the candidate being aided by the negativity of another or lionized through praise will come as a surprise to no one. Is there anyone who does not suspect that the attack ads against Newt Gingrich in Iowa were being directed by the Romney camp? So here we are struggling to find a valid and constitutional way to take the influence of money out of politics, only to end up strengthening its role. True, the consequences may not be as dire as many fear and predict, but wouldn't it be ironic if free speech -- which we all hold as one of our dearest freedoms and bastions of our democracy --could cause its destruction.

 
 
 
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iridium53
Semper Fi
01:08 PM on 01/06/2012
It is now clear that Roberts' SCOTUS "unleveled the playing field" because they were paid to do so by Koch's and others.

SCOTUS justices hold themselves totally above the laws applied to other judges.
As if they are Gods of Olympus.

With venal feet of clay that get receive money specifically, and openly, designed to influence the their votes. The artifice that some of that money is spent on their wives, but still accounts for over a third of he family income, does not wash. The idea that free vacations and travel to ideological events does not affect their decision goes against human nature.

Justicia is no longer blind, and no longer actually weighs justice.

Corporations now just buy their justice in the United States.
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BigBearcatBill
This is the real Bearcat - a Binturong
03:38 AM on 01/06/2012
The only objective way to compare to candidates is to hear/see their direct statements and responses to questions and for them to get equal opportunity to provide those to all voters. That would mean all TV/radio/internet/etc. time would need to be equal and as widespread. If a candidate can communicate more to the most available/uncommitted voters than their competitor they should have an edge just by having more "face time" with the voters than the opponent. Assuming money spent for either candidate has the same efficiency to get their message to voters, obvious the one with a significant increase in money will have an edge unless their message is more unpopular and cannot convert available voters to them. I think the scariest scenario is that the owners of the TV/radio/internet services give a better deal to a politician they like, meaning their service is more available per $ to a preferred buyer/politician....and that is how Dictators probably got started.
timber1647
It's either sadness or euphoria
11:36 AM on 01/05/2012
Two points: i) I am not a supporter of elected judges; I prefer they be appointed at all levels with legislative consent...there's enough politicing there; ii) in my opinion the 5 to 4 Citizens United decision was an insult to the American electorate; I cannot believe this is what Madison had in mind.

Corporations are not people, regardless of Mr. Romney thinks. And those donating to political campaigns, directly or indirectly should have no issues with their names being published. We are a democratic republic and I believe we still have a right to Freedom of Information.
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Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
05:00 PM on 01/05/2012
timber1647 - I agree---I think judicial elections are an abomination. I also agree that we should have disclosure, but as I said, I don't think that solves the problem. The inlfuence is there even if the source is disclosed.
11:24 AM on 01/05/2012
As I am always saying:

We've become a government
• OF the thousandaires (the 99%, that would be me and thee,)
• BY the millionaires (the 1%, that would be the extremely insular privileged overlords and bosses,)
• FOR the billionaires (the 12,400 individuals identified by the IRS as the people who count (though they don't really count as they hire some thousandaires to run machines to do that.)

Things are going to get a LOT worse before that changes, (but threatening the military's budget beyond sustainability, [like North Korea or Myanmar{Burma} does,] is what will make it happen.)
10:29 AM on 01/05/2012
The problem with this article is the judge ignores the fact that the MSM, 95% liberal, have a power far beyond the budget of any corporation. In fact, allowing corporations to participate in the political debate only partially offsets the power of journalists to push their political agenda. SCOTUS was correct.
timber1647
It's either sadness or euphoria
11:31 AM on 01/05/2012
By referencing MSM, you give yourself away. Additionally, it is ludicrous to think that editorializing by news organizations comes anywhere near the level of the PAC attack advertising...and that is true for both sides. It further stretches belief that the respective campaigns are completely isolated from these attack ads. While the candidates themselves might be able to erect walls of denial, it is all together plausible and probable that others on their campaign staffs are "back door" coordinating these campaigns. If PACs wish to advertise then I believe they should be required to list their contributors. Not to do so, in my opinion, corrupts the system. Just recently the Montana Supreme Court ruled to support their state law prohibiting this type of advertising. Montana got it right. SCOTUS, with its 5 to 4 decision got it wrong.
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ClevelandLib
I stand with Planned Parenthood
01:12 PM on 01/05/2012
Sweetie...the MSM is owned by 6 corporations...it is the farthest thing from liberal you'll ever see.
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Damiano Iocovozzi MSN NP
10:04 AM on 01/05/2012
Another great article, Judge Sarokin! With Citizen's United granting corporations permission to buy & sell elections, one wonders where "we the people" will fit into the scenario. Republican = Democrat, all bought off by the corporate interests & money. It isn't important who wins elections anymore as we're voting in basically the same corporations. "We the people" is just in the way.
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Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
05:05 PM on 01/05/2012
Damiano - Thanks. We will be a corporate run government ---if we are not already!
04:14 AM on 01/05/2012
If you believe money is free speech then you also are probably fine with the fact that your democracy and freedoms are being sold right at this point in time.
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penndl
I am imigination...
09:51 PM on 01/04/2012
I see the judge's point. Free speech rights have limits. The Supreme Court's decision proposes that a corporation has free speech rights in the form of "money" and it's free speech rights cannot be limited. So, if this ideology is allowed to survive, then most definitely, democracy will be eliminated. Why would there be a need for democracy when through other means an entity can acquire total and absolute control? It seems that the radical right mindset just won't quit. They feared the idea of equality when the country was founded and the fear it just as much today, more than two hundred years later.
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Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
11:40 PM on 01/04/2012
penndl - We have a government of the corporations, by the corporations and for the corporations.That isn't what Lincoln had in mind.
12:37 PM on 01/05/2012
Good afternoon, Judge:

Nor did the early Americans. As I recall, corporate charters had to be renewed every ten years to ensure that the corporations were serving the public well.

This tells us that those early Americans could see the adverse consequences of unfettered corporate power on politics and the economy.
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ClevelandLib
I stand with Planned Parenthood
01:15 PM on 01/05/2012
And corporations writing laws through think tanks like ALEC that suppresses free speech of citizens activists like the American Enterprise Terrorism Act that BOTH parties have promoted is a way to intimidate the people into not exercising their free speech rights via threat of prosecution and incarceration.
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Judge H. Lee Sarokin
Retired after serving 17 years on the federal cour
05:08 PM on 01/05/2012
ClevelandLib - Individual rights diminish as corporate rights enlarge.
08:49 PM on 01/04/2012
While I wholly agree with your sentiments I object to characterizing Citizens United as as anything other than an unconstitutional investing of veto and legislative power in the Supreme Court by the Supreme Court through the simple agency of lying about constitutionality.

Corporations are not persons. They are created by government charter. Persons are not government creations which is why they have rights not subject to government control. The Supreme's Frankenstein Doctrine, that the government can create persons but cannot then control them because "its alive!" is ludicrous.

As is the notion that corporate officers have a constitutional right to use shareholder funds to finance their personal political views.
08:19 PM on 01/04/2012
The five justices responsible for unleashing Citizens United do not care about democracy.
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ClevelandLib
I stand with Planned Parenthood
01:15 PM on 01/05/2012
They do the bidding of their corporate overlords.