Friday, January 22, 2010

Citizen's United vs. The New York Times

The New York Times doesn't agree with the Supreme Court's decision in Citizens United v. Federal Election Commission. "Doesn't agree" being, in this case, synonomous with acting like a proper Victorian lady getting the vapours at the sight of some unseemly display of a bared calf.
The Court’s Blow to Democracy

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century.
It's good to start with some dispassionate rationality, isn't it?
Disingenuously waving the flag of the First Amendment,
According to the OED, "disingenuous" means "lacking in candour or frankness, insincere, morally fraudulent." How the majority's references to the First Amendment, which is, after all, the key to understanding and resolving this issue, is "insincere" or "morally fraudulent" is apparently so obvious that they don't need to explain it. In any event, the assumption of insincerity is made with no explanation forthcoming. One suspects that they would struggle to find a justifiable reason for using that particular adverb, but it's good and nasty and pejorative, so in it goes.
the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.
Corporations like, say, the New York Times Corporation? Oh, wait. They could already do that. In fact, they've spent much of the 150 years of their existence attempting to do exactly that.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.
What form, exactly, does this "strike at the heart of democracy" take? Are they taking away the vote from citizens? Changing the rules about who wins and loses elections? No, they're saying that "Congress shall make no law...abridging the freedom of speech or of the press." That doesn't sound like much of a "strike at the heart of democracy" to me.
As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates.
Corporations like the New York Times?
If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.
Which never, ever happens now. No sirree. The NRA or NARAL or the SEIU or the UAW or the Sierra Club or the NAACP or PFAW never, ever exert influence over political candidates. And the New York Times and Washington Post and CBS and NBC, corporations all, never attempt to influence the results of elections either.
The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics.
It doesn't just reverse the law, it "radically" reverses it. They don't just object to this decision, they "strenuously object."
(The ruling also frees up labor unions to spend, though they have far less money at their disposal.)
Really? "Far less money?" Do all unions have "far less money" than all corporations? If not, should wealthy unions, say the Major League Baseball Playerrs Association, also be banned from speaking as a group about electoral issues?

And if this ruling frees them up to spend, what were they doing previously? Is the New York Times seriously arguing here that labor unions haven't advertised in the past in the attempt to affect elections? If I had a nickel for every ad that the Massachusetts Teachers Association had run over the past five years, I'd be a much, much wealthier man.
The founders of this nation warned about the dangers of corporate influence.
This is the kind of comment that would be interesting to see them try to justify with citations. I don't remember any warnings of the dangers of corporate influence from the founders, but I haven't read everything they wrote, either. In any event, none of those warnings were written into the constitution as restrictions on corporations.
The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.
True. It also doesn't mention universities, teacher's unions, glee clubs, professional sports leagues, church choirs and garden clubs. Does that mean that that Congress can establish laws abridging freedom of speech for those groups, too?
In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.
True. True. And True.

So what? Congress also enacted fugitive slave laws which were reaffirmed by the courts. Just because someone made a mistake in the past isn't a reason for repeating the mistake.
This issue should never have been before the court.
Absolutely true.
The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign.
No, it shouldn't have been before the court, because the laws shouldn't have been passed in the first place, and they shouldn't have been signed into law by past Presidents. The first amendment (if I may refer to it in a hopefully non-disingenuous fashion) says that "Congress shall make no law...abridging the freedom of speech or of the press." What exactly is the law that was struck down if not a law abridging the freedom of speech?
The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.
How unreasonable of them. It isn't like there's a major biannual election cycle starting in, oh, right about now, for which people need to understand the rules.

Oh, wait. Yes, there is.
Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.
This is just embarassing. How is it not "call[ing] balls and strikes" to look at a law and determine that, yes, this law is not allowed by the text and meaning of the constitution? They didn't make anything up. They didn't create a new right out of "emanations and penumbras." They looked at the constitution, saw that "congress shall make no law...abridging the freedom of speech," they looked at the law, saw that it, in fact, "abridg[ed] freedom of speech," and said, "hey, that's not constitutional." The only possible definition of "overreach" under which this would qualify is "decision with which the New York Times does not agree."

And the Chief Justice's opinion does nothing whatsoever to "excuse...shameless judicial overreaching." It does, however, explain very clearly and concisely precisely why this decision represents no such thing.

It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that “[i]f it is not necessary to decide more, it is necessary not to decide more,” sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving the case at hand, “the court must meet and decide them.”

Citizens United has standing—it is being injured by the Government’s enforcement of the Act. Citizens United has a constitutional claim—the Act violates the First Amendment, because it prohibits political speech. The Government has a defense—the Act may be enforced, consistent with the First Amendment, against corporations. Whether the claim or the defense prevails is the question before us.

Any further questions? Any of that sound tortured or sophistic or difficult?

Yeah, I thought not.
The majority is deeply wrong on the law.
Argument by assertion. If you're going to say something like that, you need to specify how, exactly, the majority is "deeply wrong on the law." Lamentably for those of us they hope to educate, such specificity fails to appear.
Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.
And here's the nub of the argument, the place where the New York Times is most deeply, fundamentally wrong.

The Constitution does not exist to grant rights to anyone. It exists to limit the power of the government. The first amendments does not say, "Congress shall protect the right of people to engage in freedom of speech" - it says "Congress shall make no law abridging freedom of speech."


It is inarguable that this law, which the Supreme Court has correctly overturned, abridged freedom of speech. Even the Times isn't arguing that it doesn't - they're arguing that corporations have no right to freedom of speech. (Well, they're arguing that some corporations have no right to freedom of speech. They're quite happy excersizing their own, and one can just imagine the editorials were Congress to extend the ban on corporate speech to media companies issuing editorials.)
The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.
Wall Street bankers can already do that. But they hide the fact by doing it through bundled contributions and political action committees with pretty names. It's hard to imagine that out in the open politicking would result in a system more corrupt than the one which we've currently got.
After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.
And I'm troubled by the extreme contempt for the constitution that Senator McCain demonstrates every time this topic comes up.
In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.”
Still waiting for an explanation of how this "threatens democracy?" Yup, me too.
History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.
Evidence came there none. Except yet another piece of evidence that the editorial board of the New York Times lives in a fantasy world, where evil corporations ally with evil Republicans to the detriment of everyone else. For an elite that prides themselves on nuance and decries the black-and-white world of George W. Bush, this is a pretty strong us-vs.-them attitude on display.
Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join.
Mobilize how, exactly? Pass another law to re-implement the same restrictions that the Court has just determined to be unconstitutional? Amend the constitution? Kill one of the five so the President can change the balance? What's the end-game here?
Congress should repair the presidential public finance system
With the help of the same President that promised to abide by it last time and then changed his mind when he saw that it was advantageous?
and create another one for Congressional elections to help ordinary Americans contribute to campaigns.
Because, as Senator-elect Brown knows, there's no way for ordinary Americans to contribute now.

Or not.
It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.
I'll have to think on that. Despite the fact that it's coming from the Times editorial board, it's not obviously insane. But the source suggests that it may be. This requires carefull consideration.
These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned.
Because, Supreme Court precendents, so vital and precious and important five paragraphs back, should definitely be overturned if we don't like them.
The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.
This threat to democracy which is so apparent to them continues to escape me. It would have been nice, I think, if they'd devoted a couple of words to why this is a threat to democracy, or why this is an incorrect decision. I don't see either of those things, just a paranoid temper tantrum that someone's taken away their monopoly on corporations influencing elections.

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