To anyone exercised over the Supreme Court's decision in Citizens United v Federal Election Commission, which (briefly) deems it unconstitutional not to allow corporations to spend as much money as they like in support of (or against) particular political candidates (although not to directly fund a candidate's campaign), I commend the discussion on the Volokh Conspiracy, and, for balance, the analysis at Project Censored. Most of the comments on Volokh seem to agree with the Court's decision, though not always with the rationale; in particular, some argue that Justice Scalia's "Originalism" sits ill with the ruling, his protests notwithstanding. Project C., on the other hand, is not addressing the legal arguments, but the political and social ramifications. Scrivener's Error, on the third hand, does (much more briefly) address the legal rationale from the other side--arguing most trenchantly that the contention of the Court's majority missed the point.
The argument seems to turn upon whether "free speech for corporations" had to be granted, lest free speech for individuals be susceptible to suppression; Justice Kennedy, writing for the majority, tried to raise the spectre of blog censorship. Obviously, this summary of mine is not rife with legal finesse. Anyone wanting to set me straight is welcome to school me.
One thing I do not see discussed very much is the question, Why did the Court decide to consider the issue in such broad terms, rather than issue a narrow decision regarding the original case? In fact, in his dissenting opinion (starting on p 91 of the decision), Justice Stevens clearly suggests that in asking for the case to be re-argued from this point of view, the Court "changed the case to give themselves an opportunity to change the law."
In any case, the impression is hard to avoid that the Supreme Court has given the U.S. a big push towards Managed Democracy.
(More on Citizens United in this excellent (albeit tendentious) Slate article by Richard Hasen).
[Addendum: the best legal commentary I have found on the matter is Paul Gowder's, which manages to argue why the decision was wrong without having recourse to grounds that would probably exclude free speech for other groups of people as well; the most alarmist commentary, while managing to remain barely believable, is Keith Olbermann's.]
I was shocked by this Supreme Court decision. Not so much by the content of it but by the scope of it. In overturning so much previous case law this has got to be the biggest case of judicial activism since Roe V Wade. I've read the links above and have been following the arguments. I have a few observations.
ReplyDeleteFirst I notice that many object to the logic of the decision by pointing out that "corporations are not people". I find this misplaced as Law is explicitly NOT a logical discipline. In his great work "The Common Law" Justice Oliver Wendell Holmes traced the foundation of English Common Law back to decisions made in antiquity, many based upon superstitious or even animistic assumptions. Far from thinking this a weakness of Common Law he asserts that precisely this wealth of previous judicial consideration makes Common Law superior to the Roman and Continental jurisprudence.
[210]Hence I say that it is important to show that a far more developed, more rational, and mightier body of law than the Roman, gives no sanction to either premise or conclusion as held by Kant and his successors
http://biotech.law.lsu.edu/Books/Holmes/claw_c.htm
He maintains that the law is this living body of decisions, many deeply emotional or uniquely situational, whose sum is greater than any logical system could attain. We are accustomed to appealing to science or reason but the judge is trained to hold them secondary to the primacy of the law. This is the basis for the discussion of original intent which Justice Scalia so notoriously whores out when it suits him. A corporation is nothing but an entity which has been embodied to have legal rights. The logical connection between the two is irrelevant compared to the legal intent. It would be beyond consideration for the founding fathers to deny constitutional rights to an entity specifically created to have legal rights. Furthermore, most of the corporations which they would be familiar with would have been churches or office holders. Denying free speech to their churches would have reduced the first amendment to an absurdity. Many conservatives have been arguing that America is currently guilty of just such an absurdity. Perhaps they were right.
Most modern corporations are not churches. On the contrary the are legally defined to be amoral. The board has a fiduciary responsibility to maximize profit. I'm an avowed capitalist but it's not hard to see how such an entity, if allowed to pursue its own political interests, might be a clear and present danger to the integrity of our political system. But unlike Mr. Olbermann I don't see this ruling as a take over of the government but rather a clarification of the status quo, of the status aeterni.
Seriously, I get the value of outrage as entertainment, but how do you get through life and not realize that we don't live in a democracy and that it was set up that way on purpose. We have an endless war of elites and their special interests because it was deemed to be the best system possible. Not the most virtuous or egalitarian or fair system, but the one least likely to disintegrate into the polar opposite-equals tyranny-democracy. The Wall Street-Washington symbiosis is a casino in a whore house, and a wonderful one at that. There are worse places to be.
It will be interesting to see how this plays out. It was democratic pressure that forced the Supreme Court to finally codify the tacit reality of our oligarchy. If the next elections turn out to be too crazy there may be a serious attempt at a constitutional amendment to reverse this ruling. Thrust and parry, parry and thrust. God help us the day somebody lands a final blow.
I agree: the ruling does seem to make explicit and de jure the status quo; In Washington state, where I live, there are already very few restrictions on what corporations can do, say or spend regarding elections. So it is quite possible that what Olbermann is decrying is simply the engraving in stone of the way business is done every day.
ReplyDeleteThe Holmesian point about Common Law is well taken. I see Law as a *Tradition*, in much the way that I see the tradition of Philosophy (and indeed Science) actually. *None* of these is conducted in a vacuum. Of course, I do hold that these discourses orient themselves to a horizon that is construed as transcendent (even Law); but there are always very practical considerations that have an impact upon Legal or Scientific or Philosophical practice-- and it's not as if one could ever, in some ideal setting, eliminate these considerations as mere noise. They are part of how the practices work.
This being the case, as far as the Law is concerned, I think it was obviously quite possible for a coherent ruling to have been passed that refused to overturn "Austin", or indeed to decline to consider the question. I am taken aback not merely by the scope of the decision, but by its brazenness. As you note, it is a case of naked judicial activism--posing as Originalism, at that! It is so clearly so that Justices Roberts and Alito felt compelled to write their own opinion to ward off this precise charge--pretty pathetically, I might add.
In any case, what concerns me is not the idea that this somehow "undoes our democracy" but that it significantly shifts the balance of power between politics and capital which we *called* democracy. There really is a difference between black market trading of political favors and money, and officially sanctioned transactions. Yesterday it was possible to *accuse* a corporation of shamelessly trying to influence an election, and perhaps even to occasion some real shame. Tomorrow that will seem like a quaint small-town sentiment. This may not change anything about how things are done, since it was the status aeterni already-- but it changes our public conversation about them; and that, in turn, changes how things are done.
It is unpredictable how it will play out but I hold hope that by making the corporate activities no longer black market it will expose them to a sanitizing light. That is basic liberal (classical) theory. An expample I owe to a discussion on the topic with my wife is the exectutive of Whole Foods. He was exposed as having a very conservative agenda. When it is not the political support but the concealing of that support that is illegal could he afford to continue with that agenda? I see a future when corporations will run adds against their competition attacking their political activities. An imaginary example would be Burger King running adds in which they show the support they have given to Haiti while contrasting that McDonalds has not done so and is influencing Brazilian elections to allow deforestation. My understanding is that the corporations are allowed to spend money on political speech but are required to declare that expense to their share holders. Anybody with a laptop and 63$ can become a shareholder of McDonalds.
ReplyDeleteAside from Scalia and Thomas, whom I consider to be complete sociopaths, I see the conservative court as people of a different sect who worship the same god. The case could very well have been decided differently and 4 other jurists did just that, but they chose to decide this way out of a sense of patriotism and fidelity to underlying principles. I'm sure they expect this to play out as I have described above rather than the naratives coming from the left. Only time will tell. Unintended consequences are the tragic norm of human aspirations.
I do see the possible playing-out in terms of making the process more transparent. I am relieved that it was stipulated that corporate sponsorship of various "speech" had to be made clear. I just think that this could have happened without the main overturning of Austin.
ReplyDeleteStill, it is odd to catch myself arguing for the preferability of the 'black market,' and I am not sure that I would want to hold to the notion if backed into t a corner. You mentioned Roe v. Wade, and in fact this case is a weird analogy, in which I come down on the other side is abortion: I tend strongly towards being pro-life personally, and yet I wish for abortion to be "legal and safe," as the phrase goes; I do not dispute that birth control and abortion are de facto ways of enforcing a subservient role for women, and I would never want to go back to the bad old days that we hear about, the regime of "back alleys and coat hangers"-- even though I would like to see it abolished in practice. So in this case I prefer the 'sanitizing light' you refer to. Yet I remain troubled by the legal sanctioning of it.
Likewise in the Citizens United decision (which is rather different on the face of things), what unsettles me is the legal countenancing of what I take to be the drastic financial skewing of electoral process. In this case, though, I'm not sure that Corporations really need the "hand up" that women got from Roe. Or again, my instinct is to support decriminalization or legalization of most drugs; so I am not sure I can consistently argue for the black-market of political influence.
My default econo-politics (a position I am not sure is fundamentally coherent, but then, what law or politics is?) tends to favor libertarian solutions for the little guy and regulation for the rich. (It's figuring out where the dividing line lies and what to do there that makes things interesting).