Cleaning Up the Supreme Court’s Mess (Guest Voice)
Mar 8th, 2010 | 26 responses
WASHINGTON — In a city where the phrase “bipartisan initiative” is becoming an oxymoron, the urgency of containing the damage the Supreme Court could do to our electoral system creates an opportunity for a rare convergence of interest and principle.
At issue is the court’s astonishingly naive decision in January that allows unlimited corporate spending to influence elections. Its 5-4 ruling in the Citizens United case was a shocking instance of judicial overreach and reflected an utter indifference to how politics actually works.
Liberals and Democrats are already mobilizing to fight against Citizens United because they fear the impact of unconstrained corporate activity on elections and legislation. But conservatives and Republicans should also be alarmed that this decision could encourage politicians to extort campaign spending from businesses. Is it really so hard to imagine a congressional leader quietly approaching a business executive and suggesting that unless her company invested heavily in certain key electoral contests, this regulation or that spending program might be changed at the expense of her enterprise?
That’s why both parties should join to pass a bill that Sen. Charles E. Schumer, D-N.Y., and Rep. Chris Van Hollen, D-Md., hope to introduce this week placing some rules around the new electoral casino that the Roberts court has opened. The proposal is expected to win Republican co-sponsorship. And it should.
The measure does not try to overturn the court’s ruling. Instead, it puts boundaries around this precedent-shattering decision and might make executives think twice before unleashing their companies’ treasuries. It would also limit the capacity of politicians to work out cozy deals with business, and thereby help prevent extortion and other forms of corruption.
Its provisions would require full and timely disclosure of corporate political expenditures, and make it as difficult as possible for companies to hide efforts to influence elections by funneling their money through front groups. Corporations would have to disclose political expenditures to their shareholders and make them public, through links on their Web sites and in their annual reports.
Politicians now have to tell viewers or listeners as part of their advertisements that they approve the messages in question, and the Schumer-Van Hollen measure would put the same responsibility on corporate officials. If a third-party group were used, the leading financial backer would have to appear in the ads, and the five largest contributors to the message would also have to be identified. If a corporation is trying to affect an election, the voters should know about it.
Certain companies would be explicitly barred from making political expenditures: domestic corporations that are under foreign control, recipients of government contracts, and recipients of TARP money. Think about it: If a company is getting government money, why should it be able to turn around and use receipts that include that money for electioneering?
The bill’s strong ban on coordination between candidates or parties and corporate entities in their political activities is essential to containing the ability of elected officials to pressure companies — and to prevent parties from becoming mere extensions of corporate interests.
And to give candidates a chance to fight back against a corporate onslaught, the bill strengthens requirements that broadcast, cable or satellite outlets offer candidates and parties the lowest unit rate for their ads and provide them with reasonable access to airtime. Republican leaders such as Sens. Mitch McConnell and Jon Kyl have shown some sympathy for this idea in the past.
The conventional view is that this bill is destined to be caught up in Washington’s mire of partisanship because Republicans will welcome corporate expenditures to strengthen their political position.
It’s not clear to me why the GOP would want to proclaim itself as the corporate party by opposing a bill of this sort. Many Republicans, above all Sen. John McCain, have been at the forefront of trying to clean up the campaign money system in the past.
And it is clear that rank-and-file Republicans know how radical and foolish this Supreme Court decision was. A Washington Post-ABC News poll last month found that 76 percent of Republicans were opposed to the ruling, along with 81 percent of independents and 85 percent of Democrats.
A bipartisan coalition of that sort is rare in politics these days. Congress should be eager to take its lead from a public far more realistic about politics than is the Supreme Court’s majority.
This column is licensed to run on TMV in full. (c) 2010, Washington Post Writers Group
26 Responses to “Cleaning Up the Supreme Court’s Mess (Guest Voice)”
Hmmm. If polls are how we are now going to decide whether SCOTUS rulings should stand or not, it is a damn good thing for the Left that they didn't feel that way back when Roe v. Wade was decided.
Dionne is just blowing it again, more of his typical liberal sludge. At least he isn't engaging in mentally ill obscession with the “corporate personhood” phrase and concept. (Stop the HUA mode operations and just figure out how to write laws to prevent corruption of politics, including by those many Dem special interests corrupting the federal government currently.)
“The measure does not try to overturn the court’s ruling.”
Most the critics are too incompetent to grasp that the Congress actually can constrain the Supreme Court by writing federal law that limit the scope of its rulings. Not that I would be confident in any modern set of politicians doing this, or that they would do that for any good reason, rather than for dumb business-bashing or some other populist or popularity-contest American-idol-governing-style goals in the future, instead. The dumb stuff would be the rule, the same cartoon-level nonsense we're seeing with federal intrusion into state regulation of health insurers, and the teevee show trial of the insurers last week by Sibelius.
“At issue is the court’s astonishingly naive decision in January..”
************
Oh if “naive” could only be used to describe the decision on behalf of the “5″ who upheld it..
The title of the case was “CITIZEN'S United”.
Here is the legal [and binding] description of a US Citizen [the only kind the Supreme Court may rule as having a right to affect elections].
14th Amendment:
*********
“1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…”
******
Ergo, only a person BORN or NATURALIZED in the United States AND [not "or"] subject to the jurisdiction thereof, is a citizen of the United States. Only non-felonious citizens over the age of 18 may participate in elections according to Law. Article 6 explains how the Supreme Court representing the interest of any foreigner to affect elections is grounds for impeachment for those justices who KNOWINGLY did so. [One could argue that as a Justice, they were required to know the document they took an Oath to uphold and so ignorance cannot be an excuse..]
*******
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution”
*********
If the oath is meaningless and arbitrary, then so is the Consititution and so is all law. To allow any Justice to continue to sit in bad behavior, when that bad behavior dissolves the Constitution or any part of it without due process [2/3 majority vote by Congress], is unforgiveable and those Congresspeople themselves who do not act to protect the Constitution thusly are in violation of the Oath.
Here's Article 3, Section 1:
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior”
********
And in “bad behavior” they shall not…
Impeach.
There was wide support for Roe v. Wade to stop the horrors of illegal, backroom abortions, about 60 to 65% of the country supported legalization. In the years leading up to the ruling even the Southern Baptists accepted a plank supporting the limited legalization of abortion (more limited than Roe v. Wade). Many today don't realize Roe v. Wade was decided as health issue. The court understood that the ban on abortions didn't stop abortion, it only made them dangerous.
The Supreme Court of course, responds to public opinion. The recent 2nd amendment cases are a case in point throwing out hundreds of years of case law and precedent to satisfy a current political agenda for example. Scaila outlined the conditions that would have to exist in society to overturn the death penalty. One of them was public opinion, both in the United States and other countries.
The court in this case invited Congress to write a law to control corporate spending within Supreme Court guidelines. Nothing more.
Citizens United was not another illegitimate or activist Roe v. Wade decision, or Dred Scott decision, or Baker v. Carr-Reynolds v. Sims (leaving the Senate alone!), et cetera. Don't waste time saying things fall up, people. [sigh]
You can't censor speech. Don't fidget, don't throw tantrums, just face the truth. You can't. NO.
So, what else do you do. You can't attack the result, the destination (speech), but what about sources?
Well, DLS, I agree that the Citizens United case is not illegitimate, but to pretend that it is not judicial activism is horse pucky. Why do people engage in that pretense? There's nothing wrong with activist decisions; they are a long standing and honored part of our judicial history. Once you accept that judicial activism is not a dirty word, you will be able to accept and defend Citizens United as it is instead of how you wish it was.
I will not repeat my analysis of why it is activist as I have done that many times here and have written a three part post on it elsewhere. Suffice to say, it gets redundant, and in my opinion disengenuous, to hear folks try to rationalize that this is not an activist decision. To quote you, ” Don't waste time saying things fall up.” [sigh back at ya].
The mistake you are square-dancing around dear DLS is that “Citizen”, may not apply to anyone not born or naturalized in the US. If any single one of the plaintiffs in “Citizen's United” [any shareholder of any corporation or entity represented in that case] was a foreigner, as defined by the 14th Amendment, at the time of the Ruling, then the Justices who ruled allowing any foreigner to partcipate in our electoral process is guilty of wilfull malfeasance. It is “wilfull” malfeasance because each and every Justice was sworn to uphold the Constitution, intimate and utter familiarity with being the description of their job. Ignorance or “naivete” do not apply.
So, if the act of allowing foreigners to participate in the electoral process was by naivete, ignorance or wilfull, in each instance is grounds for impeachment for the Justice in question being unqualified to sit.
“Activism” is kind of a loaded term isn't it? We all use it, mainly to describe the court actions when they do something we don't like, but it's accuracy depends on who you ask. Is it activism to return to a strict constructionist viewpoint? Well, considering the long history of the court not being constructionist, then yes it would to many. To me I would look on it as returning to the correct path and undoing previous judicial activism or, as in the 2nd amend cases, pure neglect. It's all in your viewpoint making the phrase meaningless. If Roe was overturned would it be activism. Lets face it that was an incredible stretch, activism if there ever was such a thing, but now there is years of president so ………
Of course the decision isn't just radical and foolish, it is dangerous and a threat to the democracy the USA has enjoyed throughout most of it's history. IF congress actually manages to do something to correct this horrible ruling, then it will have done something worthwhile and uniquely pro-American.
EEllis,
There actually are rational definitions of judicial activism. Within that context, both Roe and Citizens United would clearly fit. The more appropriate comparison from my perspective is not Roe, but Gideon v. Wainwright and Citizens United. Both are activist and both in the same way, injecting money into the definition of a word or phrase whose common meaning has no relationship to money. There are many other similarities between the two cases including overturning prior law and even the comparative time frames in which prior law is overturned.
Would it be judicial activism to undo Roe? This will get me in trouble with all the libs, but the answer is no. Roe is built on the premise of a constitutional right to privacy, read into the constitution through a penumbra analysis. There is no actual right to privacy enumerated in the Constitution. To recognize that fact would be strict constructionism, not activism…though it would raise all manner of consternation if the Supremes were ever to announce that American citizens do not have a right to privacy.
It is always comforting to know liberals/Democrats are concerned with the best image of the Republican Party since that seems to be the underlying theme of the OP. (If I was snarky, I would otherwise ascribe it to the abject fear Democrats have demonstrated this entire year of doing anything on their own.)
However, rather than just basing their decision on what liberals think is best for them, presumably the Republicans would look at the fundamentals in the bill and decide based on that. As far as making the disclosure of politically related expenditures, those disclosure requirements already exist under regular and SEC reporting rules, except that corporations' political expenditures have consistently fallen below what is considered a “material” amount. So, likely no big issue with additional disclosure being supported.
While liberals have failed to grasp that they lost the original case due to the “Congress shall make no law” thing, they will similarly fail to abridge that right with respect to the dirty, brown-skinned ferreigners that Don Quixote likes to highlight in his posts. Why Republicans should wish to support that patently unconstitutional further attempt this time, I don't know.
Why Republicans should wish to support that portion of the bill that mandates advertising rates to be charged by private enterprise also seems constitutionally suspect, but I'm sure the liberals will show how this is not unconstitutional here.
I'd go for that, if they would go the rest of the way and return the “general welfare” phrase to its original meaning by overturning “United States v Butler”. Have fun waiting for that one.
” injecting money into the definition of a word or phrase whose common meaning has no relationship to money.”
I'm sure you know better than I but if money is the issue isn't it just because it is a way of preventing the speech? I mean you would allow a company to buy an ad, unless it mentioned x, y, or z in the ad. It does seem strange that a random group of people could buy a political ad but if they decided to pool their money to make an ad and think that a corporation is a good way to do it, suddenly it's against the law?
“overturning “United States v Butler”"
You want them to be able to tax processors of farm products? “United States v Butler” was a ruling striking down a tax. Of course in their explanation the court did state the philosophy of Congress having the power to provide for the general welfare of the United States. That is I'm sure what you referred to but since that ruling limited the power, it was hardly a radical idea even then, and striking down a ruling that limited what you complain about hardly makes sense.
EEllis,
Please, please, please understand my position. I have no problem with the ruling in Citizens United. Everyone thinks, because I point out that it is an activist decision, that I think it's wrong. It's not. It's just activist.
Corporations or groups have, and have always had the right to speak…on a street corner, in an annual statement, in a press release, on their website, in an interview, just like any individual has that right. There is no economic component to speaking. As I said once, if you want to video me speaking aim your camcorder at my face; if you want to video me spending money aim your camcorder ait my left butt cheek (where my wallet is). I fully inderstand why the court conflated money with speech, and for the hundreth time have no problem with it. But, it is judicial activism.
My simple challenge to anyone who believes it is not judicial activism is this: find me a reputable dictionary definition of the word “speech” that includes any reference to money. Nobody has been able to answer that challenge…perhaps you can. If you can't, then this decision “interprets” the meaning of that word beyond it's common meaning. And that is, by definition, judicial activism. Btw, unless you can respond to this simple challenge, please, I beg you, do not reply to this comment.
The Constitution, strictly constructed, gives you the right to speak, it does not give you the right to make purchases with money to amplify your speech in order to speak more often than or more loudly than others. Only by activist interpretation do you get to the proposition that “speech” somehow means more in the Constitution than it does in the dictionary. Finally, I repeat for the hundred and first time, I have no problem with the decision.
But, it is horse pucky to pretend that it is not activist.
PS: As you may be able to tell, I am really agitated with having to continually address this becasue some people cannot accept the idea of conservative activism from the court. I think I will not respond further on this issue. If people, to assuage their own political leanings in attempting to rationalize this decision, want to falsely call it something other than judicial activism, so be it. The honest ones will embrace the decision recognizing that it is activist. That's not meant at you. I'm just really frustrated with this pretense that Citizens Untied is something other than what it is.
God bless & best.
The general welfare clause was controversial before Butler, but that was first time that the phrase was settled as a defined power. If congress didn't have the power to give arbitrary amounts to arbitrary groups, for any purpose that might be defined as improving the “general welfare”, including specific welfare, then it would be much harder to benefit from lobbying.
“I am really agitated with having to continually address this because some people cannot accept the idea of conservative activism from the court.”
I don't really have a problem with the idea. My question was of real interest on your opinion. It's obvious your understanding of legal issues is goes far past mine. I think any real disagreements we have are ones of definition and perhaps of perspective. From my lowly perch as a laymen I find the whole monetary issue, well, minor. I just can't help but feel that the desire was to have has much and as open speech as possible so I have trouble feeling that adhering to that principle, freedom of speech, as activist. Sure there are restrictions and I understand the issues and why people are against the ruling. My questions were more about trying to understand the viewpoints and maybe educate myself a bit. While we may not agree I do find your posts interesting and very informative.
“but that was first time that the phrase was settled as a defined power.”
Great but it limited the power of congress to “general welfare”. The phrase might have occurred there but the trend had been going past that point already. Butler seems to have pulled them back a bit even if it did enshrine the limit. Again tho repealing the case? How would that work? It would actually remove a limit to their power.
Funny, but I don't consider adhering to the Constitution to be damage, the SCOTUS decision repaired damage to our system in this case.
EEllis,
My sincere apologies for the tone of my comment yesterday evening.
Your interest in legal matters and , more generally, in the world around us, are laudable. It is my hope that we will have many fruitful discussions going forward.
Respectfully,
tidbits
Yes it is funny that you would think that SCOTUS decided to protect F-O-R-E-I-G-N “citizens'” “rights” to speak freely as to affect our electoral process: in direct defiance [yes, defiance] of the 14th's description of what constitutes a US Citizen.
You see some of us true Americans believe that handing the nugget, the essence of our democracy, the electoral process, to foreign influence constitutes a treasonous intent to dissolve our domestic cohesion. Especially since many of the world's richest men and therefore those most likely to gain this “free speech” access are rich islamics, many of whom are suspected as closet jihadists.
SCOTUS decided that these rich foreign and questionable islamic men have every right to dump jillions of dollars into deciding who wins our elections and you see this as “repairing the Constitution”? There's a reason the founding fathers did all that they did from this one foundation: to keep us free from foreign influence. That was the entire reason for the Declaration of Independence. [read it again]. Foreign meddling was what threatened to dissolve the colonies, to divide and conquer us and keep us beholden to Britain.
US History is such an important class in gradeschool. I hope they never get rid of it..
We have a history of real activism by the Supreme Court, of liberal activism over the past decades since our modern era began after the Great Depression, most and best known with the Warren Court. As has also been chronicled (and which everyone should already know), there were instances of conservative as well as liberal activism, and related “stretchy” rulings like Dred Scott, that happened in the 19th century.
There's a big difference between that activism (which liberals today often irrationally defend as though it were part of their physical or sexual being they feared being defiled whenever it is criticized or in any way threatened) and rulings, valid, controversial, unpopular but in no way activist, that liberals simply don't like.
But that's of course what liberals will say is “activist.”
(If it's any “consolation,” liberals misuse other words and concepts besides “activism,” too.)
“The mistake you are square-dancing around dear DLS is that 'Citizen' may not apply to anyone not born or naturalized in the US.”
Look at the object, the “destination,” not the source, at the heart of this ruling, my dosey-doe darlin' (gonna round you up, m' little buckaroo, 'n' make ya git along, there):
Speech. Censorship is unconstitutional, no matter if it's meant to fight corruption.
Now if you approached the source instead of the destination, it might be possible to make progress on what is obviously more than a century-old effort to Curb Corporate Congressional Corruption (C4).
[shrug] I'm reading right now the master work of the biggest, baddest New Deal central planner and master regulator of probably all time in this country (600 pages about what a new super-powerful New Deal and Great Society-uninterrupted national government and a constitution to match would be like) and he wrote reams not only about regulation but about electoral reform, and I'll be looking throughout the election part in particular to find out what he discusses in addition to public funding as a remedy (and throughout the rest of the book where he disparages corporate as well as other unwelcome interests in government).
“Speech. Censorship is unconstitutional, no matter if it's meant to fight corruption.”
*********
OK. Good, some common ground. We would both agree that suppression in any form of free speech is unconstitutional right? [We'll forget about the willful malfeasance part of protecting foreigner's to affect our electoral process for this segment of the debate].
Now, is or is not an unlevel playing field in the arena of speech surrounding elections [the media] active suppression of free speech by some citizens while favoring others? [Think: MONEY to purchase ad time/space].
Now that we both agree that some citizen's rights are being suppressed by others, let's revisit that clause, again from line 1. of the 14th Amendment:
“..No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..”
Let's look at “abridge” from the dictionary:
Abridge>
2.to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one's freedom.
3.to deprive; cut off.
****************
If we have rich [and sometimes foreign] “citizens” buying up airtime and ad space that less wealthy citizens [actually born or naturalized in the US], we have a “cutting off” of access to the arena of free speech. You cannot ignore that inherant to free speech is the venue in which it can occur. Any lone person can speak freely on a mountaintop or in a cardboard box, or on a lonely streetcorner or some outpost supermarket. But the VENUE that has the most exposure, the most opportunity to have one's free speech heard is the media, particularly during elections. No non-shill non-spindoctor sane person would dare to dispute that.
So, THE venue for free speech during elections, the media, will be monopolized by the rich at the expense of the poor's free speech platform. Ergo, we have, via the Citizen's United ruling not only a usurping of the core intent of the Constitution [to keep foreigners from influencing our government...a credo of conservatives BTW] but also the Ruling ACTIVELY SUPPRESSES FREE SPEECH.
Yes, it does. You cannot ignore effect when you are talking about free speech and the arena for maximum effect is the media and the media is very expensive. So only the rich may now speak [effectively] freely in elections. By being able to grossly outpurchase the common man, these $upercitizens are effectively going to emasculate the potency of free speech [reach and effectiveness] of millions of Americans; reserving the potency and reach for a $elect few. That = suppression muchacho..
Strike two for the Ruling.
“is or is not an unlevel playing field in the arena of speech surrounding elections”
Are you about to be surprised…[grin]
Well, anything that costs money is an unlevel playing field and there are realistic limits to what we can be expected to do about that. We do have methods. We can try to limit expenditures, or we can aid the smaller parties in circumstances like this by giving them aid. (Rather than publicly financing in full a campaign, for example, we can give aid to all or nearly all entrants with the goal of “leveling” or making more even the ability of each to participate, to improve the equality of opportunity. Just an example.) In fact, it's wrong to censor speech and suspect to cut off those at the top in this view, but certainly nothing wrong in theory and even maybe in legality with boosting those at the bottom or creating parties who wouldn't be able to exist otherwise.
That's something to bear in mind in elections someday (hopefully) with proportional representation and multiple entrants or campaigns. Typically there are thresholds to eliminate microscopic parties, and the same thing could be done to qualify people reasonably for campaign entrance (note) and assistance (which could be made by default or mandatory).
* * *
“the Ruling ACTIVELY SUPPRESSES FREE SPEECH.” “only the rich may now speak [effectively] freely in elections”
Yes, and no. The ruling prohibits explicit censorship, but says nothing about implicit effective “censorship” of those who can't afford to compete with wealthier bidders for advertising. (The point there is, that's true about everything, not just about advertising or about campaigns, but about life.)
In addition to redesigning an attack on the wealthy parties here (US and foreign, be fair, now) there is a need to boost access by those who are challenged by lack of resources (to use that grand old word). I believe the key here really is “access,” and to prevent corruption or for other reasons (and aid the less wealthy) it certainly shouldn't be viewed as limited to campaign advertising expenditures.