Citizens United is not the last word on corporate speech. In the Citizens United vs. FEC decision, the Court of the Land, narrowly controlled by a majority of conservative judges, overruled the most recent lower court judgments on the issue of corporate rights to political speech. It will take time to sort it out with a likely Amendment to the Constitution, but we don't have much time. The ruling itself has set the clock to a few minutes to midnight for our democracy.
The Bipartisan Campaign Reform Act of 2002 (BCRA) bans candidate advocacy, for or against, by a corporate voice 30 days prior to an election that might reach an audience of 50,000 or more. Modest enough a rule. Hillary the Movie, the subject on which the Citizens United complaint was formulated, was definitely candidate advocacy. That fact was never in question in the SCOTUS.
The plaintiff premise in the lower court was that Hillary the Movie was exempt from BRCA on technicalities of how it was distributed. It was argued in lower courts that it might not reach the threshold banned by BRCA, of being distributed in a way that it would reach at least 50,000 viewers. The key to the lower court judgment against it was that even though the passive distribution on pay per view of it might not reach 50,000, the advertising of it on pay per view might push viewership higher, to some unknowable level. So the original ruling against allowing that particular method of distribution was based in the recognition of the subterfuge of the distribution plan that was meant to circumvent BRCA. The lower court ruling based in BRCA law remains intact.
So the SCOTUS heard the case not because of merit in existing law, but on merit of constitutionality of the section of BRCA that bans candidate advocacy by corporations and unions exclusively. The core issue was the likelihood of corporate money distorting the political process. The "concern" of a slim majority of Justices was the "chilling effect on free speech" of finding the BRCA section banning corporate electioneering Constitutional.
Do you feel that your free speech is chilled by limiting a corporation's ability to distort the political process with commercials for a candidate? You might, if you see unlimited corporate spending on political advocacy advertising as a political tool to your liking. Political Action Committees could already take monies in unlimited amounts for political advocacy purposes. The only difference is that they were required to declare a purpose for the collection and sources, thus divulging the political agenda of corporate donations. Is anonymity of speech guaranteed by the Constitution? Anonymity is not something Jefferson or Madison felt necessary.
So with the broadest disregard for intent of law and the very design intent of the Constitution, to prevent concentration of power in the hands of an unelected minority, the SCOTUS, as composed, ruled that corporations and unions have the same rights to speech as do individuals. Actually corporate rights are now superior. Anonymity is not an option for individual contributions and strict limits still apply. How long can even those restrictions last with the floodgates of immunity opened for corporations and unions?
The whole SCOTUS conservative cohort argument is based on the assumption that speech should not be limited by the speaker's ability to distort the political process with money as a disqualification of free speech. Money is free speech. The same ruling applies to foreign corporations. It has cast the American political process adrift in a whirlpool of corporate money's ability to market opinion, something they do very, very, well.
The case was allowed before the Court on the basis of an existing conflict in lower court rulings on corporate political speech. The Supreme Court did not address important considerations, the design and intent of the Constitution to limit political power. It instead relied on a mechanistic dissection of lower court rulings to justify a politically motivated decision. It stands to reason that it will be challenged, but by whom?
Our current crop of politicians are no longer even a shadow of the Founding Fathers. Electioneering is their bread and butter instead of democratic/republican leadership. President Obama, a credible Constitutional scholar, took exception to the Citizens ruling but has done nothing with it but act as if it were a fact of law. It seems he now curries favor with the very power that succeeded with Citizens, at least in a pragmatic sense. A challenge to the Citizens United ruling will not come from any source on or near Capitol Hill. It will come from unions.
Unions have been under flagrant frontal assault by the very powers that prosecuted Citizens United. In a putsch for political dominance, corporations and conservative strategists have revealed a plan to destroy the life blood of unions, dues. Unions, as the only natural enemy of autocracy other than the now long dead Framers, bear the cause and burden of continuing the fight that separated and distanced this land from the rule of monarchy.
As unions now have the same prerogatives as corporations under Citizens United to advocate whatever damned thing they want, they should use it with every measure of conviction that the Framers had. "Our lives, our fortunes and our sacred honor" must be devoted to this cause. Otherwise the America designed to benefit the people in equity to their contribution heralded or not, will fall.
Part of that prerogative must be to demand the equal enforcement of law decided by Citizens United. If the speech of corporations can't be "chilled" by government, as the court said, "prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions", then government cannot "chill" union speech. Union busting by states, like Wisconsin, would not only "chill" but outright muzzle, by depriving unions of income by act of government in dissolution of their established rights to enforce membership and collection of dues, those rights predicated on the value that collective bargaining provides as a product of unionization. Union busting acts of government are equivalent in every consequent respect to an outright ban on political speech by government.
If unions are subject to sanction of their speech by government, even in light of the argument that they might distort the political process, then so too are corporations. So in order to deliver their long sought coup d'gras against labor unions, corporation conservatives must surrender their rights countenanced by the Citizens United ruling. If governments can ban unions then they can ban corporations.
The route to overturning Citizens United is through forcing corporations and conservative ideologues to find another means by which to destroy democracy. Or, in asserting their rights, they equally assert the rights of unions to oppose their goals.
1) President Obama lost all Constitutional cred when he bombed Libya and his practice of taking campaign contributions from untraceable online donors makes his thoughts on the connection between money, free speech, and the purity of our electoral process inherently suspect.
2) The comparison between unions and corporations is a comparison between apples and pineapples - they only appear similar upon a quick reading, but are worlds apart in their true nature. Corporations are made of shareholders who want to associate; unions are not necessarily comprised of people who want to be members or bargain collectively, which is why unions rely on the strong arm of the government to fill their coffers.
3) If passive deprivation of income at the hands of the government has a "chilling" effect on speech of the unions and is therefore wrong, it would follow that the active deprivation of corporate income by way of taxes must also be wrong.
I don't think the House Republicans' problem is that they have tried to do too much; rather, their problem is that they haven't introduced enough simple pieces of legislation that promote efficiency in government.
The intent of free speech is to equalize the political process, otherwise you might as well not bother.
I was responding to your hyperbolically stated concern that corporations have too much influence, and individuals too little.
My point is that when individuals finance a movie – as those who made contributions toward the production of the Hillary Clinton film did – such individuals are exerting influence.
So I think it’s obvious that my assertion, whether or not you agree with it, is pertinent. Are you ready to address it yet?
Regardless of whatever you think didn’t wash with the courts, individuals financed the Hillary Clinton movie.
Still unanswered:
How would individuals have more influence than they do now if the Court had upheld the BCRA? How did individuals exert greater influence when the BCRA was in effect?
You claim: “The intent of free speech is to equalize the political process...â€
Wrong. Despite you wishful thinking about “free speech,†the intent of the First Amendment is most certainly NOT to equalize the political process. As any constitutional scholar (or fifth grader) will tell you, the intent of the First Amendment is to prevent Congress from improperly restricting free speech. What I’m telling you is neither complicated nor controversial. It’s right there in the text of the amendment:
“Congress shall make no law...abridging the freedom of speech..."
Your original post, and reply to my comment, reflect a shameful tendency to confuse your personal preferences with facts.
I’m sorry, I thought you had posed serious questions. A serious mind would find my answer to be a serious answer, just not the one they might have expected. Now it’s obvious that you just intended to be argumentative. You’re going to have to tell me why you think BCRA reduced the influence of individual speech. You might also want to tell me why you think Citizens Untied is not a corporation. Then we can talk.
I will answer your additional question/accusation.
You said, ““free speech ,†the intent of the First Amendment is most certainly NOT to equalize the political process.â€
Free speech is not defined by the First Amendment. The First Amendment simply prevents any government of or in the United States from prohibiting speech. It’s a subtle distinction that seems to have escaped you. The courts have established standards as to what kind and manner of speech is protected. In doing that they have additionally upheld measures that would protect the political process from “distortion†by spending on campaigns, anticipating that large expenditures would tend to be corrupting. So the courts have, in fact, tended to favor equalizing speech in order to protect equality in influence of the political process, until Citizens United vs. FEC.
Corporations are Government CREATED ENTITIES and cannot exist without the government.
The Government grants to Corporations special privileges and protections. For example, the owners, board members and stock holders are protected from lawsuits, and liability. Unlike ordinary people, corporate owner don't have to worry about losing their homes, cars and bank accounts if they make a big mistake.
I as an ordinary person don't get those privileges.
When you grant corporations "Personhood," on top of the special priviledges they already have, they become "Super Persons."
Unlike me, they are unaccountable for their mistakes and errors and in some cases their crimes.
At the same time, they now have most of the rights that I have.
I say that government should get out of the business of granting corporation special rights.
If corporations want the priviledge of personhood, then they have to give up the special protections the government gives them.
Eliminate the "Corporate Veil" that protects the assets of the owners from lawsuits and protects them from personal liability.
Conservative are opposed to Government so much, why are they so happy to have government foster and protect corporations?
http://en.wikipedia.org/wiki/Piercing_the_corporate_veil"
The Federal government does issue laws and regulations concerning taxation, trade, environmental protection, etc., that overlay the State laws, but it is predominantly the State level that legislates and executes laws on businesses. Now you know why the GOP and their deep pockets financiers have targeted State level elections.
>"Unlike me, they are unaccountable for their mistakes and errors and in some cases their crimes." How unaccountable, since corporations large and small are routinely sued for millions? Deeper pockets attract more lawsuits, some valid. All lawsuits directly threaten owners' assets.
>"Eliminate the "Corporate Veil" that protects the assets of the owners from lawsuits and protects them from personal liability."
Liberals' policies hurt most the little guys. As it is, small businesses often fail. Failing to protect the home of the farm owner, independent pharmacist, toy store owner, etc., will virtually eliminate small business. As a partner in an incorporated startup that hasn't earned a dime, I live in a fixer-upper and drive a dented 12 year old sedan. Should a screw-up by one of my partners, or perhaps an illegitimate lawsuit, lead to my wife and children being thrown out on the streets? Most corporate owners don't own mansions or drive exotic vehicles. Liberal fantasies about the real world are truly dangerous.
> "...government should get out of the business of granting corporation special rights." Fine. Government should be only in the business of protecting the right of contract. Most businesses will only agree to transact with those who promise not to sue for personal assets. Corporations by consent suit me better too, but ultimately, quelle difference?
The way that things look today I doubt that we will ever see another Amendment get ratified. A two/thirds majority in both houses followed by 38 states ratifying it. When is the last time that we had that much agreement on anything?
Corruption of our system has done what no foreign power has been capable. It has nullified the checks and balances in our government.
This recent court decision is just as important as the Dred Scott decision. Only instead of blocking the road to freedom from slavery like Scott, this decision is just as wrong because it is a direct path from freedom to serfdom.
Stevens dissent: The jurisdictional statement never so much as cited Austin, the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United's corporate status.
Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law. the majority does not bother to consider such practical matters, or even to consult a record;
it simply stipulates that that "enlightened self-government" can arise only in the absence of regulation"
They are continuing to pick and choose to fit their ideology
"Political Action Committees could already take monies in unlimited amounts for political advocacy purposes."
Nope. There was a $5,000 limit per person on contributions to PACs, which remains. Independent groups that don't make candidate contributions can now accept unlimited contributions, but that wasn't decided until after Citizens United (see SpeechNow.org case, represented in part by my organization).
"Is anonymity of speech guaranteed by the Constitution? Anonymity is not something Jefferson or Madison felt necessary." The Supreme Court has long recognized First Amendment protections for anonymous speech, and Madison was co-author of the anonymously written Federalist Papers.
"The same ruling applies to foreign corporations."
Except for the part where the Supreme Court specifically said, their ruling doesn't apply to foreign persons, including corporations.
I could go on, but I think you can see that you've made some pretty basic mistakes when it comes to this case. As for the "distortion" rationale, YOU may feel that corporations distort politics, while others believe it's unions, or the media, or ACORN, or others. Fortunately the First Amendment doesn't allow the government to decide who's voices should be limited in order to prevent "distortion" through unfettered political speech.
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
Koch Bros.! making the world safe for big business
Campaign Finance Reform must realized or our Republic is finished,
Keep dreaming. People in this country have got to smarten up and vote Democratic. And Democrats have to go back to democratic principles. All of there are very, very, very long shots.
There is NO LIMIT to the number of justices that can be appointed to the court, providing Congress approves.
President Obama missed an opportunity. He should have nominated three Justices as soon as he took office. The only hope now is that the Democrats will retake the majority of both the House and the Senate in 2012, at which time he should immediately propose increasing the Supreme Court to eleven Justices and nominate three LIBERAL Justices for approval.
They could then hear any challenge to Citizens and rule appropriately.
There must be legislation which established the current nine justices. If Obama named two more, and if the Senate approved (hard to do with all the Blue Dog Democrats in the Senate), it may have required legislation through both houses of Congress.
I don't know where the number of Supreme Court Justices is specified, but I'm sure that they must be.
We have been leaving election outcomes to the best financed and organized. The people of the US have been too complacent and apathetic and we all now suffer as a result.
and
Organize
They are *professional* politicians who do little besides meet with lobbyists, attend fundraisers and campaign *non-stop.* That is their new "station" in life--a "third leg" appendage to the corporations to skrew the rest of us.
The decision in "Citizens" must be overturned and the retirement arrangements involved for the assenting justices should be uncovered, exposed and applied immediately.
"Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights "
Here: http://www.iiipublishing.com/afd/santaclara.html