Latimer on Law

MONEY TALKS

                                 -So You Poor Folks Can Just Hush Up And Listen

 "By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing and respect for the speaker's voice.  The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. - Justice Anthony Kennedy, majority opinion in Citizens United v. FEC.

"In the context of election to public office, the distinction between corporate and human speakers is significant.  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 to guard against the potentially deleterious effects of corporate spending in local and national races. -Justice John Paul Stevens, dissenting in Citizens United v. FEC.

             I wrote the last post about Massachusetts Senator-elect Cosmo Boy just as the Supreme Court's ruling in Citizens United v. FEC was announced, and made a brief comment on it without having actually read the Court's opinion. This is the case involving the Citizens United movie bashing Hillary Clinton before the 2008 Democratic primaries, which the lower federal court enjoined, following clear Supreme Court precedents upholding the relevant provisions of 2 U.S.C. Sect. 441b.

            Since then, I have read the Court's  183-page opinion, including dissent and concurrences, which can be downloaded from http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf, and I will admit that Justice Kennedy's majority opinion is superficially well reasoned in the abstract under applicable Constitutional principles.  But the Constitution is more than an abstraction.  It is a living document that must be given pragmatic effect to attain its clearly intended objectives, which do not include allowing a corporate oligarchy to take over our electoral process. 

           Despite being a facially well-reasoned exercise in Constitutional jurisprudence, the Citizens United opinion demonstrates one significant truth about the supposedly "conservative" majority on the Court today, a truth about which I have commented previously.  Based on this most recent ruling, it is now clear beyond peradventure that the so-called conservative majority of the Roberts Court, far from being conservative, is comprised of zealous judicial activists.

           The majority opinion, as written by Justice Kennedy, sweeps aside three important principles that underlie the concept of judicial conservatism.  One is the principle of stare decisis, another is judicial restraint, the conservative principle of deciding cases on narrow, case-specific grounds whenever possible rather than raising broad, far-reaching constitutional issues, and the third is the principle of deciding on the basis of the case or controversy as actually presented by the parties, which is the fundamental principle upon which both the common law and our constitutional jurisprudence is based.

            The Latin term stare decisis means, literally, that it "stands decided," as under prior rulings on the same subject.  In this context, several recent Supreme Court cases had upheld the federal statute restricting corporate expenditures for or against political candidates, and that was why the lower federal court ruled against Citizens United.  Stare decisis is one of the most conservative principles in our constitutional jurisprudence.  Once the Supreme Court decides an issue, the constitutionality of a federal statute for example, then that is the law of the Constitution itself, which as provided in Article VI, is the supreme law of the land.

           The purportedly "conservative" majority on the Roberts Court, however, had no compunction about overruling several recent Supreme Court opinions upholding the statutory restrictions on corporate electoral spending under Sect. 441b.  If it were not for the grave implications for the integrity of our electoral processes, it would be laughable that this was clearly a binge of judicial activism on the part of Justices Scalia, Thomas, Roberts and Alito, wholly at odds with their dissents in other cases based on stare decisis.

          One case that comes readily to mind is Lawrence v. Texas, on which Justice Kennedy wrote the majority opinion, joined by the Court's liberal bloc.  That's the case which struck down a Texas law criminalizing private, homosexual conduct between consenting adults.  Just listen to the opening words of Justice Scalia's dissent in Lawrence, joined by C.J. Roberts and Justice Thomas:

 "Liberty finds no refuge in a jurisprudence of doubt." . . .  The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Here, Scalia, et al., were addressing the principle of stare decisis, and he made the following comment: "I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine." 

           Well, that's a fine sentiment.  But let's look at how the doctrine was manipulated by the "conservative"  Citizens United majority when the issue wasn't our individual rights to be free from governmental intrusion, but instead focused on corporate rights in context of manipulating public affairs.

           The case was argued twice before the Supreme Court.  During the first argument, the die had clearly been cast that Citizens United was going to win, but on a very narrow ground that put them outside the scope of the statute.  Under any principled conservative standard of constitutional jurisprudence, the Court could have and should have decided the case that way, leaving the statute itself intact while overruling the lower court on a much narrower basis.  Instead, the "conservative" majority voted to schedule further argument based on the constitutionality of the statute itself.  That was judicial activism in its purest form, directing the litigants to brief and argue an issue they both didn't consider necessary to resolve their dispute.

            Case or controversy is another very conservative principle of American jurisprudence that the "conservative" majority just swept aside in Citizens United.  It is in fact the constitutional basis for federal court jurisdiction, as stated in Article III, Sect. 2.  Under this very conservative principle, the court decides only the constitutional issues that are presented by the parties and does not expand on them.   As pleaded, the Citizens United complaint contained two relevant counts, one did challenge the constitutionality of Sect. 441b  itself, while the other one only challenged its applicability to Citizens United specifically.

            Before the second argument, however, Citizens United had stipulated that the broad constitutional challenge to the statute be dismissed, and the Government agreed.  That left only the applicability issue in actual controversy for the Court to rule on, but the "conservative" majority nonetheless saw fit to proceed to the broader constitutional issue as to the statute's validity in general.  That, plainly, was judicial activism, and then the majority opinion  compounds its activism by considering several hypothetical, tangential issues that had nothing to do with the case and controversy at bar.

           For example,  Justice Kennedy' majority opinion admits that the provisions of Sect. 441b "may not be a prior restraint on speech in the strict sense of that term."  But then he adds: "These onerous restrictions thus function as the equivalent of prior restraint."  Penumbras, anyone?  This reasoning is as creative, as expansive  and as "activist" as anything "Wild Bill" Douglas ever wrote to advance individual liberties under the Constitution.

          Further, the Government defended the restrictions of Sect. 441b on an antidistortion rationale, i.e. unlimited political spending by large corporate interests distorts the debate, effectively giving a loudspeaker to the corporations who then can drown out all other points of view.  Here, the majority opinion ruminates that the "antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations."  That's an exceptionally creative non sequitur.

            In the first place, the statute as written expressly exempts media corporations, so that issue wasn't even before the Court.  Moreover, while the First Amendment's freedom of speech clause does not specifically apply to natural persons, it does specifically refer to freedom "of the press."  Thus, newspapers and, by extension, other media corporations as "the press" are protected by a different constitutional provision from that at issue under Sect. 441b. 

           This is another clear example of the "conservative" majority's pro-corporate judicial activism, just dreaming up scenarios that weren't in fact before the court which had nothing to do with the case or controversy actually advanced by the litigants.    On this point, the majority opinion states:

The Government argues that Citizens United waived its challenge to (the prior Supreme Court decision upholding the statute) by dismissing count 5.  We disagree.

Here, what the "conservative"  majority is saying is it will go ahead and decide an issue which has been mooted by agreement of the parties under the conservative case or controversy principle, by reversing on its own initiative a prior ruling that upheld the statutory restriction  on corporate electioneering.  That, again, is an unquestionably clear instance of judicial activism by the Roberts Court's right wing.  

              Don't get me wrong.  I'm not criticizing the fact of judicial activism per se, as I've always believed that the Supreme Court should take the initiative to uphold our constitutional rights, abrogating stare decisis by overruling precedents when necessary, as with the landmark civil rights rulings of the Warren Court, or by expanding the scope of a narrow ruling to advance broad constitutional principles.  But it's the "conservative" bloc's selective adherence to stare decisis I'm talking about, i.e.  its judicial hypocrisy.   So, the next time you hear some self-described "conservative" bleat about liberal "activist" judges, you can just laugh him right out of the room.  

             Turning to the substance of the ruling in Citizens United, the majority opinion contains some pretty high-minded verbiage about the importance of free speech in a constitutional democracy, referring to the "primary importance of speech itself to the integrity of the election process," saying the "right of citizens to inquire, to hear, to speak and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it." 

            Well, yes, in the abstract all that's quite true.  But in the pragmatic reality of electioneering in 21^st century America, to evoke such principles in defense of unlimited corporate spending in political campaigns is the height of casuistry.  It is to promote a system which, far from guaranteeing the right of citizens "to speak and to use information to reach consensus," does just the opposite.  It is to promote a system in which only money talks, and those who don't have money are therefore effectively silenced. 

            That hardly leads to a state of enlightened self-government, when all the electorate gets to hear as a practical matter is one side -and that's the side being advanced by those who would corner the market on issues like economic deregulation, environmental protection, energy policy, defense spending, public education and church-state separation, in addition to free speech.

            So, today, corporate free speech in political campaigns is the supreme law of the land.  The majority opinion however, over Justice Thomas' dissent, did leave in place the disclosure requirements under Sect. 441b, that the real interests behind any political promotion be clearly identified.  At least we get to know exactly who is lying to us in the slick voice-over with the American flag waving in the breeze.

              The majority opinion also did not specifically rule that corporations are "persons" entitled to free speech, where the First Amendment does not refer to persons or "the people" as do the Fourth and Fifth Amendments.  As Justice Scalia's concurring opinion states:

The (First) Amendment is written in terms of "speech," not speakers.  It's text offers no foothold for excluding any category of speaker. . . .

Thus, apart from the activist "conservative" majority's willingness to ignore stare decisis when it suits their corporatist agenda, it's unclear what precedential effect Citizens United might have on prior 4th, 5th or 14th Amendment rulings, e.g. Roe v. Wade which specifically turned on whether, and when the foetus may be considered a "peson" entitled to constitutional protection.

              One avenue that seems to be left open to correct the distortion problem after Citizens United  would be to reincarnate the Fairness Doctrine.  Contrary to what you hear from right wing rant radio blowhards, the Fairness Doctrine did not violate anyone's constitutional rights, as it did not in fact prevent anyone from speaking about any subject.  In context of licensed broadcast media, as opposed to print media, the government has every right to require that all points of view get equal exposure, in order to guaranty, in Justice Kennedy's words, the  "right of citizens to inquire, to hear, to speak and to use information to reach consensus (as) a precondition to enlightened self-government and a necessary means to protect it." 

             The airwaves are public, where radio and television stations are given licenses to occupy only well-defined, limited bandwidths.  The government may therefore place restrictions and requirements on license holders as to how such a public resource may be used.  This does not violate  either the license holder's constitutional rights or those of any corporation seeking to influence public policy through broadcast media advertising. 

             The license holder is not being required to support views with which it might disagree under the Fairness Doctrine, any more than individual shareholders are being compelled to support such views when a business corporation spends its funds on political advertising.   That was a position advanced by the Government in Citizens United which the conservative majority rejected.   

            Nor is the corporate advertiser being denied free speech under the Fairness Doctrine.  There is no governmental restraint on how much the corporate advertiser can spend, what it can say or when.  The only restraint on corporate free speech under the Fairness Doctrine is the business interest of the licensed broadcaster who must determine for itself how much of its commercial air time it wants to devote to political messages  in order to advance the interests of "enlightened self government" by ensuring that the public gets to hear all sides of every important issue over the publicly owned airwaves.