The Supreme Court decision in Citizens United v. Federal Election Commission promises to unleash the electoral fury of America's small businesses and citizens groups. The 5-4 decision will let for-profit corporations — and the citizen groups funded by them — make independent expenditures toward election advertisements.

This unqualified positive development is one of the best reasons for constitutionalists to cheer a court decision in decades. So it's no surprise that the official Left is squealing like a stuck pig over the decision. The Huffington Post screeched that it is “a danger to our long-cherished basic democratic principals.” President Obama said the decision “strikes at our democracy itself” in his January 23 weekly radio address. “The Supreme Court has thrust politics back to the robber-baron era of the 19th century,” whined the New York Times the same day of the January 21 court decision, labeling it a “blow to democracy.”

The case revolved around a challenge by a private citizens group called Citizens United who had produced an unflattering video of Hillary Clinton called Hillary: The Movie and wanted to pay for its distribution within 30 days of the 2008 presidential primaries. Because Citizens United was partly funded by donations from for-profit corporations, the media buy would have violated the limits of the McCain-Feingold “Bipartisan Campaign Reform Act” of 2002. Facing possible criminal prosecution for violating McCain-Feingold if they had actually bought the advertisements, Citizens United successfully sued to get the law declared unconstitutional.

The New York Times has good reason to whine about the decision; it's in their corporate self-interest. As the court noted, “media corporations are now exempt from [McCain-Feingold's] ban on corporate expenditures.” Overturning the ban knocked the Times from its privileged perch. Any company or interest group can now publicize an editorial on behalf of candidates after the Citizens United case, just as the New York Times' corporate affiliate — the Boston Globe — did on behalf of Massachusetts Senate Democratic candidate Martha Coakley just days before recent Massachusetts' special U.S. Senate election. The Supreme Court's decision levels the playing field with the leftist “media corporation” hypocrites. The Boston Globe also editorialized against the court's Citizens United decision allowing corporate election spending, claiming that “corporations … don't merit special protections” in an editorial published less than 10 days after they had exercised their special corporate protection under McCain-Feingold by corporately endorsing Coakley in the special election. 

The Citizens United decision, written by Justice Anthony Kennedy, found “there is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.” The New York Times Corporation clearly disagrees, preferring to keep to themselves the ability to dole out election advice to voters from on high. Kennedy wrote that “by its own terms, the law [McCain-Feingold] exempts some corporations but covers others, even though both have the need or the motive to communicate their views.” The Court also observed that the whole concept of a “media corporation” threatens to become obsolete anyway. “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

The declining official media represented by the New York Times claims that the ruling threatens to turn Congress into a creature of corporations. “If a member of Congress tries to stand up to a wealthy special interest,” the Times argues, “its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.” But large corporations can already do this by starting up political action committees, or PACs, and the electoral results have been lackluster thus far. The real change will occur in small, independent businesses and citizens groups. The Court noted that “PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward [etc.]... This might explain why fewer than 2,000 of the millions of corporations in this country have PACs.” Under the court's Citizens United ruling, small businesses lacking the array of lawyers and accountants needed to run a PAC are free to contribute to the political debate.

The Court essentially ruled that the only solution to the perception that that there are too many advertisements is really to have more advertisements from a wider array of perspectives. And what rational person can earnestly say that all the voters are too well informed on election issues? “Factions should be checked by permitting them all to speak,” the court ruled, roughly paraphrasing James Madison in The Federalist #10 “and by entrusting the people to judge what is true and what is false. The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public.”

Kennedy notes that McCain-Feingold “prohibitions are classic examples of censorship.” But the dissent by John Paul Stevens claimed that it was not trying to censor people. Of Hillary: The Movie, Stevens wrote: “It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been 'banned.'” But the majority exploded this claim, noting, “It is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short time frames in which speech can have influence.” In essence, the court asks: What good is political speech if it occurs after the election?

The New York Times claims, “The founders of this nation warned about the dangers of corporate influence.” By “founders,” the New York Times must have meant Karl Marx, since Jefferson, Washington, Adams, and Madison (and all the other Founders) go unquoted in the editorial. The four dissenting justices do quote Thomas Jefferson out of context in a letter that vaguely mentions corporations in a negative light. But the historical record is void of Founding Fathers trying to censor the speech of corporations.

Congress and the courts have traditionally claimed that they possess the right to regulate political campaigns because Congress was given the power to “make or alter” state regulations on the “times, places and manner of holding elections” under Article I, Section 4 of the U.S. Constitution. But political campaigns are clearly speech, not elections. The Founders recognized this, and never attempted to limit political speech on these grounds. James Madison explained in his notes on the 1787 constitutional convention that the election provision applies to “whether the electors should vote by ballot, or viva voce [voice vote]; should assemble at this place or that place; should be divided into districts or meet all at one place; should all vote for all the Representatives, or all in a district vote for number allotted to the district.”

The First Amendment says, “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” Even if the elections clause of Article I could have been understood to reach corporate speech at the time of the 1787 constitutional convention, then the First Amendment must be seen as an attempt by the Founders to strike that understanding down. Corporations are little more than the people peaceably assembled. The operative clause in the First Amendment is “no law” with respect to the infringement of freedom of speech.

The only flaw in the Citizens United decision is that the majority did not fully come to the conclusion that Congress may not pass a law restricting freedom of speech. Four of the justices in the majority decision upheld federal requirements that donors to political speech activities report their names to the Federal Election Commission. Only Justice Clarence Thomas dissented on this one point, noting the First Amendment protected even anonymous speech for very practical reasons. Thomas wrote that disclosure of supporters of California's Proposition 8 (which defined marriage as a man and a woman) resulted in vandalism and death threats against those who dared speak. “Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result.... I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or preemptive and threatening warning letters as the price for engaging in [speech protected by the First Amendment].”

Anonymous speech has a long and important role in American history. The 13 colonies may never had  achieved independence had Samuel Adams not repeatedly written anonymously under pen names like  “Vindex.” The U.S. Constitution would likely not have been adopted without the anonymous Federalist Papers from Madison, Hamilton, and Jay under the pen name “Publius.” (The anti-federalists also published anonymously using names such as “Brutus” and “Cato.”) Even after the Constitution was adopted, Alexander Hamilton and James Madison debated President Washington's neutrality policy in newspapers anonymously using the names Pacificus, Helvidius, and Americanus.

Kennedy argues that “if the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free speech.” Amen to that. The only downside to the decision was that eight justices failed to appreciate the importance of anonymous political speech and four justices — nearly a majority — could so blatantly ignore the clear meaning of that simple declarative English sentence that is the First Amendment to the U.S. Constitution.

Author's note: The 2002 McCain-Feingold “Bipartisan Campaign Reform Act” was repeatedly criticized by The New American (and this author) from 1998 through 2002 as an unconstitutional “end run around the First Amendment.”
 

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delquattro said:

Wow, The New American thinks corporations are endowed by their Creator? This is shocking. The New American, the alleged voice for defenders of the constitution are cheerleading a decision that equates corporate person hood rights with inalienable rights bestowed upon "We the people" by our Creator? "The only flaw in the ruling" is that the SC didn't confirm the inalienable right of freedom of speech for the "people?!" Right, if it wasn't for that bullet hole in your head, you would be fine! (cont)

January 25, 2010

delquattro said:

(cont) Quoted from a transcript of an interview with author, and radio host, Thom Hartmann: The business of America, according to most of the founders (Hamilton probably would have disagreed), was human rights for humans, democracy, and limits on BOTH government power and ALL other forms of institutional power, from church power to corporate power. A corporation today can have an infinite lifespan. It doesn't fear death. It doesn't fear pain or incarceration. It doesn't need fresh water to drink or clean air to breathe. It doesn't need health care or retirement. It can own others of its own kind. It can change citizenship in a day. It can tear off a part of itself and create a new corporation in an hour. It can amass virtually infinite wealth without that wealth ever having to pass through probate or being subject to estate/inheritance taxes. This is exactly why the Founders, Framers, and early state governments explicitly limited corporate power. And as corporations rose in power, after having corrupted the Supreme Court and then the Congress, and then the Presidency (starting, big time, with Grant), this is why American Presidents began sounding alarm bells.

January 25, 2010

delquattro said:

(cont) President Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country." Jefferson even went so far as to suggest that banning monopolies in commerce should be written into the Bill of Rights. In 1787 when James Madison sent the first draft of the new Constitution to him, Jefferson noted in a letter that he would "insist on annexing a bill of rights to the new Constitution, i.e. a bill wherein the Government shall declare that, 1. Religion shall be free; 2. Printing presses free; 3. Trials by jury preserved in all cases; 4. No monopolies in commerce; 5. No standing army." President James Madison said, "There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses."

January 25, 2010

delquattro said:

(continued because freedom of speech req too much bandwidth at TNA) President Andrew Jackson said, "In this point of the case the question is distinctly presented whether the people of the United States are to govern through representatives chosen by their unbiased suffrages or whether the money and power of a great corporation are to be secretly exerted to influence their judgment and control their decisions." President Martin Van Buren said, "I am more than ever convinced of the dangers to which the free and unbiased exercise of political opinion -- the only sure foundation and safeguard of republican government -- would be exposed by any further increase of the already overgrown influence of corporate authorities." President Grover Cleveland, after the Santa Clara County case was decided, said, "As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear or is trampled to death beneath an iron heel. Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people's masters." By the way, the Santa Clara v. Southern Pacific Railroad case, which is credited with having created corporate person hood is based on a fraudulent headnote written by corrupt law clerk, J.C. Bancroft Davis, and it contradicted the actual ruling by the judges in the case. Is there anyone at The New American who actually understands the difference between corporatism, and capitalism? Do they understand that corporations are not endowed by our Creator? Do they understand the single biggest threat to our constitution, and peace around the world comes from the ravenous, insatiable corporate beast - the Federal Reserve, the mother of all evil in the world?

January 25, 2010

delquattro said:

If you're going to limit the length of replies... ...it might be helpful to mention what length you prefer, rather than letting us guess.

January 25, 2010