Haunting the Web Since 1999
Here we go again. Dahlia Lithwick looks over the Court’s disastrous 5-4 decision in McCutcheon v. FEC [opinion] — a.k.a. Citizens United all over again — and the corrosive effect it will have on public confidence in government. “[I]n a kind of ever-worsening judicial Groundhog Day of election reform…the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle.”
“‘A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,’ Justice Kennedy wrote.‘” Breaking 5-4 along the usual lines — Roberts, Alito, Thomas, Scalia, and Kennedy in the majority — the Supreme Court determines Miranda rights must now be specifically invoked. “Justice Sonia Sotomayor, in her first major dissent, said the decision ‘turns Miranda upside down’ and ‘bodes poorly for the fundamental principles that Miranda protects.’“
One important note: “The majority ruling is in line with the position taken by the Obama administration and Supreme Court nominee U.S. Solicitor General Elena Kagan. In December, she filed a brief on the side of Michigan prosecutors and argued that ‘the government need not prove that a suspect expressly waived his rights.’” And, given that this administration is currently working to rewrite Miranda to stop the terr’ists, I guess we shouldn’t be too surprised.
“Debate on the question of money and politics has been percolating within the ACLU for years, long before the Supreme Court handed down its decision in Citizens United. ‘It is difficult to think of an issue that has generated more internal controversy,’ an internal ACLU memo states.“
To its credit and as a result of the Citizens United decision (which the organization has previously lawyered and lobbied for), the ACLU convenes a weekend summit to discuss its campaign finance reform position. “‘The ACLU’s version of democracy is from the ground-up,’ one civil rights lawyer, David Gans, told the ACLU’s board, which was assembled downtown at One New York Plaza. ‘Now Exxon Mobil can spend 2% of its money and blow that all up.’“
Here’s hoping the reformers win the day — or walk out CIO-style if they don’t. Imho, the stance that unlimited corporate funding of our elections is a right guaranteed by the First Amendment has always been the Achilles’ heel of an otherwise superb organization. I’m not a lawyer, but as far as I can tell, their reasoning relies on two unfortunate bugs in the legal code — corporate personhood and the conflation of money with speech — that they too often deem fundamental First Amendment principles. I would argue they’re not.
For why the former — corporate personhood — has obvious problems, just read Justice Stevens’ dissent from Thursday:
“The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity; as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law….
Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
For the latter — the ruinous conflation of money and speech in Buckley v. Valeo — check out Stevens’ concurrence in Nixon v. Shrink Government Pact (2000), where he says how he’d come down if Buckley were reopened:
“In response to [Justice Kennedy’s] call for a new beginning, therefore, I make one simple point. Money is property; it is not speech.
Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results…
Telling a grandmother that she may not use her own property to provide shelter to a grandchild — or to hire mercenaries to work in that grandchild’s campaign for public office — raises important constitutional concerns that are unrelated to the First Amendment.”
(See also Byron White’s concurrence in part in Buckley, which argues that “[n]othing in the First Amendment stands in the way of ” campaign finance limits.)
But somewhere along the line and for whatever reason, the ACLU latched on to both of these unwise shibboleths, and have since been arguing that corporate personhood and the idea of money as speech are both enshrined in the First Amendment. Uh…really?
To see what kind of damage these two bogus ideas have wrought, one need only to go over to Salon and read through Glenn Greenwald’s ugly meltdown on Citzens United the past few days. As anyone who visits GitM regularly knows, I link to Greenwald pretty much constantly. On a host of issues, from Obama’s terrible record on civil liberties to the broken-down state of our journalism, he’s been remarkably on point, and one of my favorite columnists to read. I used to wonder if there was anything I disagreed with him on. Well, it turns out, there is. And, apparently, I’m a “partisan hack” for thinking different.
For the Cliff Notes version of this whole conversation, I wrote up a snarky summation of it here yesterday, well after things had gone south. But, basically, Glenn — on “homework assignment” — argued on Friday that, all the negative consequences that will ensue aside, the Majority in Citizen’s United decided the case correctly, that this was a victory for the first amendment, and that people who disagree with their decision are practicing “outcome-based law.” (He also made the dubious and unprovable assertion that things can’t get any worse anyway. Really? We’ll see.)
Well, this assessment did not sit right with a lot of people. Some questioned his reading of the case. Others pointed out that law is always outcome-based, even the Majority’s ruling in Citizens. (The concerned outcome for Justice Kennedy here is that blogs might get banned someday, somehow, if this ruling isn’t made. I’ll take my chances.) And, others, such as myself, questioned these two principles — corporations are people, money is speech — that the ruling was based on.
Well, suffice to say, Greenwald did not take criticism well. He adamantly refused to engage either notion — money isn’t speech, corporations aren’t people — as having any merit whatsoever, eventually trying to write off both with some dubious 1L hypotheticals. (All were answered to his disadvantage, several times over.) He went on to ridicule the folks who disagreed with him in a “check out the Big Brain on me” kinda way. (He argued his lawyerly creds just means he knows better.) He ignored Stevens’ actual dissent throughout. And he accused folks of being just like Dubya on torture for deigning to disagree with him on the decision.
This embarrassing conceit — those with disagree with me are Dubyaites, end of story — formed the extraordinarily condescending introduction of Greenwald’s follow-up to his first post. Still ignoring the legitimate criticisms people were making of the two assertions above — money=speech and corporations=people, Glenn instead pulled one line from Justice Stevens’ ninety pages of dissent to argue that all nine Justices agreed with both of these propositions. (This even though both Ginsburg and Sotomayor questioned the corporate personhood idea in oral arguments, and that Stevens explicitly said he did not agree with the money=speech proposition in Nixon v. Shrink, an argument Glenn would not touch.) As it turns out, the one line Glenn pulled from Stevens’ dissent proved neither assertion. Nonetheless, he returned to his shell, refusing to even consider the notion that “money=speech” or “corporations=people” might be lousy interpretations or legal accidents, or that they aren’t necessarily covered by the First Amendment.
When I shared the above ACLU story this morning, Greenwald blew another gasket:
“The ACLU has a long history of standing up to and defying people [like] you: those who pretend to believe in the Constitution and civil liberties only when it can be used as a weapon to advance your partisan and political agenda.
If they didn’t reverse themselves on the First Amendment rights of Nazis in the wake of huge numbers of people like you (those who only believe in the Constitution when it suits them) cutting off funding and leaving the organization, I highly doubt they will do so now….
But what has made the ACLU such an important and unique organization is that they have stood their ground on principle and resisted the efforts of people like you to turn it into a partisan tool rather than an organization devoted to the Constitution.”
I guess he figured I’d forget what “people like me” means from paragraph to paragraph. And, yes, y’all, I’ve been writing on politics and progressivism here for ten years because I’ve always wanted to subvert the Constitution to my own ends. And I would’ve gotten away with it too, if it weren’t for that nasty Greenwald!
Anyway, when I then reminded Greenwald that people of principle can disagree on these issues, and that it may even be possible that the ACLU reformers might even be the right ones in this story, that’s when I got called an Orwellian partisan hack once more. (FWIW, here’s my kissoff. I particularly like “paddock of principle and certitude.”)
Throughout this whole back-and-forth, there was not even the remotest possibility that any other interpretation on these two questions had merit for Greenwald: Corporations have first amendment rights. Money is speech. Both are obviously enshrined in the First Amendment. And arguing anything else is ridiculous and deserving of scorn (even if Supreme Court justices have argued differently in the past, including as recently as Thursday.) So let it be written, so let it be done.
Uh…really? Who knows…perhaps it’s a lawyer thing. Nonetheless, this myopic, bullish way of thinking — I hold the only correct possible interpretation of the law, and you’re either with me or you’re with the Dubyaites — isn’t very satisfying on either personal or argumentative grounds. And Greenwald’s constant doubling down on his original argument, even as more and more holes were poked in it by various responders, makes me question not only his temperament but his writing in general. He usually provides a valuable public service, no doubt, but he seems to have bought into his own hype as an Incorruptible Defender of Liberty. If you can’t think outside of yourself once in awhile, or find some way to weigh arguments you may not necessarily agree with without deeming them unprincipled, you’re really not much use to anyone.
Update: Looks like Greenwald addressed this topic one more time this morning. Here’s what he said:
“‘Money is not speech’ is an idiot bumper sticker slogan, not a meaningful argument which resolves anything. ‘Corporations have no constitutional rights’ is such an extreme and dangerous position (it endorses the constitutionality of the FBI’s searching whatever corporate offices they want and seizing all corporate documents with no search warrants or probable cause, or the Congress’ imposing $10 million fines on corporations every time they criticize the government, among other things) that it’s frivolous in the extreme. Despite that, I spent substantial time all weekend addressing and responding to those frivolous bumper sticker slogans.“
So there you have it. An “idiot bumper sticker slogan”…repeated verbatim by Justice Stevens in 2000. (And, for what it’s worth, Greenwald referred to civil rights lawyer David Kairys’ piece on these two questions, linked several times above, as “stupid and ill-informed.”) Class act, Glenn.
Well, it was a nice republic while it lasted. In a 5-4 decision, the Supreme Court finally hands down its Citzens United verdict, and it is ugly. [Full Text] Basically, the distinction between corporations and individuals has been erased, and, by the already dubious proposition that money is speech, unlimited corporate expenditures in campaigns is now just good, old-fashioned government. Welcome to the new Lochner era, y’all.
By the way, this is a much, much bigger deal than Scott Brown or the effing Edwards baby. Not that you’d know that from watching the news right now.
Update: More reactions:
Fred Wertheimer, Democracy 21: “Today’s Supreme Court decision in the Citizens United case is a disaster for the American people and a dark day for the Supreme Court…With a stroke of the pen, five Justices wiped out a century of American history devoted to preventing corporate corruption of our democracy.“
Bob Edgar, Common Cause: “The Roberts Court today made a bad situation worse. This decision allows Wall Street to tap its vast corporate profits to drown out the voice of the public in our democracy. The path from here is clear: Congress must free itself from Wall Street’s grip so Main Street can finally get a fair shake.“
Robert Weissman, Public Citizen: “Shed a tear for our democracy…Money from Exxon, Goldman Sachs, Pfizer and the rest of the Fortune 500 is already corroding the policy making process in Washington, state capitals and city halls. Today, the Supreme Court tells these corporate giants that they have a constitutional right to trample our democracy.“
Sen. Russ Feingold (D-WI): “[T]his decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president. Ignoring important principles of judicial restraint and respect for precedent, the Court has given corporate money a breathtaking new role in federal campaigns. Just six years ago, the Court said that the prohibition on corporations and unions dipping into their treasuries to influence campaigns was ‘firmly embedded in our law.’ Yet this Court has just upended that prohibition, and a century’s worth of campaign finance law designed to stem corruption in government. The American people will pay dearly for this decision when, more than ever, their voices are drowned out by corporate spending in our federal elections.“
President Obama: “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.“
Slate‘s Dahlia Lithwick: “Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is ‘to confuse metaphor with reality.’ Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.“
“If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.” With Justice Sotomayor aboard, the Supreme Court holds a special session today to re-hear arguments in Citizens United v. F.E.C.
And, as Slate‘s Richard Hasen explains, the projected outcome does not look good for McCain-Feingold or advocates of campaign finance reform. “If Roberts or Alito were ready to go the narrow route again in Citizens United, however, there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing…Expect the floodgates to open, and the money to flow freely, as early as next year.“
“The court’s five most conservative members have demonstrated that for all of Justice Antonin Scalia’s talk about ‘originalism’ as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.” In the WP, E.J. Dionne eviscerates the Scalia wing of the Roberts Court for their 5-4 decision in D.C. v. Heller yesterday. As you’ve no doubt heard by now, the decision (penned by Scalia) parsed the Second Amendment in such a way as to overturn the handgun ban in the District (and seemed to simply ignore the existing precedent of US v. Miller.) As Slate‘s Dahlia Lithwick deadpanned, “today’s decision ‘will almost certainly cause more Americans to be killed.’“
As it turns out, the Court went 0-for-2 yesterday, also deciding 5-4 (Alito writing the majority opinion) that McCain-Feingold has been prejudicial against the wealthy. In response, Sen. Feingold noted that the millionaire’s amendment was flawed anyway: “I opposed the millionaire’s amendment in its initial form and I never believed it was a core component of campaign finance reform.” Still, the decision here may not bode well for campaign finance opinions down the pike. “‘What’s most significant here is what this means for the future,’ said Rick Hasen, a professor at Loyola Law School. ‘It tells us that the long-standing limits on corporate and union campaign spending are in grave danger.’”
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for a five-member majority clearly impatient that some prisoners have been held for six years without a hearing.” In a setback for the Dubya administration and a victory for the American way of life, the Supreme Court grants habeas corpus rights to Guantanamo detainees. (The decision in Boumediene v. Bush is now the fourth time the Court has reaffirmed the rule of law over Dubya’s monarchial anti-terror policies.)
In vicious dissent, the conservative bloc: Roberts, Scalia, Thomas, and Alito, with Scalia in particular scowling and ranting like a Batman villain. “‘America is at war with radical Islamists,’ he wrote, adding that the decision ‘will almost certainly cause more Americans to be killed.’ He went on to say: ‘The Nation will live to regret what the court has done today.’” To which I say, “Get over it.” I highly doubt we’ll regret it as much as your being put on the Court in the first place, Justice Scalia.
“‘Conservatives got everything they could reasonably have hoped for out of the term,’ said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation.” Proving the crucial importance of the Alito-O’Connor switch (and, I’ll continue to maintain as my answer to Emily Bazelon’s line of questioning, the 2004 election), the Roberts Court flexed its muscle in depressing fashion this week, voting 5-4 (as feared) not only to gut the McCain-Feingold act in the name of “free speech” but also — seriously, no lie — to partially roll back Brown v. Board of Education. (In another well-reported case, the majority’s inordinate fear of bongs trumped this stalwart commitment to free speech.) So, if you’re keeping score, Roberts, Alito, Scalia, Thomas, and Kennedy came down like this: money good, corruption good, drug hysteria good; clean politics bad, youthful irony bad, integration bad. Oh, wonderful. Suddenly, the announcement that the Court will take a look at the Guantanamo cases doesn’t sound so appetizing. Update: Slate‘s slate of legal observers discuss.
“The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.” In keeping with a tendency to move right incrementally, without necessarily overturning any laws (one that may also pose trouble for the McCain-Feingold act in coming weeks), the Roberts Court upholds a ban against partial-birth abortion 5-4, with Justice Anthony Kennedy the swing vote. (He was joined, of course, by Justices Scalia, Thomas, Roberts, and Alito.) Kennedy’s reasoning? According to Slate‘s always-perceptive Dahlia Lithwick, it was fear of the Inconstant Woman: “Today’s holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.” For her part, Senator Barbara Boxer sadly summed it up as such: “‘It confirms that elections have consequences,’…alluding to Bush’s re-election and the seven GOP Senate wins in 2004 which set the stage for the appointment of Roberts and Alito.“
With that in mind, all the major candidates for 2008 obviously weighed in on the decision in Gonzales v. Carhart, although everyone pretty much followed to party script, even the ostensibly pro-choice Giuliani. [Clinton | Edwards | Giuliani | McCain | Obama | Richardson | Romney] “Wednesday’s ruling raises the stakes for the 2008 presidential election, which is almost certain to pit an abortion-rights Democrat against an anti-abortion Republican.” Let’s not make the same mistake again, y’all.
Regarding ballot initiatives, it was a bad night for same-sex marriage and marijuana decriminalization. Still, there’s cause for hope around the country in the six state minimum-wage hikes that passed, as well as the repudiation of the stringent abortion law in South Dakota (Justice Kennedy: take note.) Speaking of the Court, its eminent domain decision of last year took a beating in nine states, although California, Idaho, and Washington thankfully repudiated stronger measures that would effectively hobble any kind of federal land regulation.