Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

PART 2

Corporations are not mentioned the United States Constitution or in the Bill of Rights. At the time of the Constitutional Convention, only a few corporations existed. Those entities were created for temporary works, such as construction of a specific bridge or road. There was good reason for the Framers to be suspicious of corporations. The Boston Tea Party was a reaction to British favoritism for the East India Tea Company. Thomas Jefferson, though not a delegate to the Constitutional Convention yet a man whose views had a significant effect on the thoughts of many of the delegates, wrote of corporations: "I hope we crush in its birth the aristocracies of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our county."

Again, as Justice Stevens notes:

Those few corporations that existed at the founding were authorized by grant of a special legislative charter. Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charter that specified the corporation’s powers and purposes and "authoritatively fixed the scope and content of corporate organization," including "the internal structure of the corporation." J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780-1970, pp. 15-16 (1970) (reprint 2004). Corporations were created, supervised, and conceptualized as quasi-public entities, "designed to serve a social function for the state." Handlin & Handlin, Origin of the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945). It was "assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare." R. Seavoy, Origins of the American Business Corporation,1784-1855, p. 5, 1982.

130 S.Ct. 949.


 


How did corporations grow in the 1800s?


Corporations grew quickly and became quite fat in the Nineteenth Century. Railroads were a significant factor. Whereas economies had been local, with goods produced and distributed in one community, trains now could transport those same goods over great distances. In the latter half of the Century, the railroads became the nation’s largest employers. The steel industry grew. Oil’s importance and its generation and accumulation of wealth, catapulted John D. Rockefeller to the top of the charts of the rich. He said that individualism was dead, never to return again. Corporations began to call themselves "trusts." People became alarmed at the increased accumulation of so much money in the decreased number of hands. Unions sprang up to protect the rights of workers.


Was corporate power ever stemmed?


The businessmen—and this gender-specific term is appropriate for era in question—of the late 1800s were aware of a general antagonism toward corporations. General antagonism of labor toward ownership appeared during 1877 in the railroad industry. By 1886, when the Haymarket Riots broke out in Chicago, many people were fed up with low wages, unsafe and deadly workplace conditions, and excessively long hours. Owners were aware of their vulnerability and hired protection from Pinkerton’s and other agencies.

The Supreme Court issued opinions related to workers’ rights. The Court repeatedly found strike practices to constitute "unlawful restraints of trade." Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301 (1908); Duplex Printing Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172 (1921), Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295, 45 S.Ct. 551 (1925), and Bedford Cut Stone Co. v. Journeymen Stone Cutters Association, 274 U.S. 37, 47 S.Ct. 522 (1927).

Theodore Roosevelt took the Oval Office in 1901 after the assassination of President William McKinley. He sought to stem the power corporations held over society.


What is the nature of corporations under our laws today?


Corporations are no longer under limitations of purpose, for example, as they were in the early 1800s. In Indiana, for example, a corporation can be created to accomplish any lawful purpose; one need only fill out a simple form available on-line through the Office of the Secretary of State, plunk down the filing fee, and make sure the proposed corporate name already is not in use.

Many of the restrictions corporations once faced, particularly those for which the New Deal was assigned credit, were lifted during the presidency of Ronald Reagan. Bush I and Clinton also were friends to the corporate entity.


Why do people form corporations?


One reason not to be underplayed is ego. Some people gain satisfaction in creating the legal entity of a corporation. The legal significance is little compared to the knowledge s/he has created a CORPORATION. Many corporations simply are started and nothing is done with them.

A second reason is to raise capital. Shares are sold, funds are raised and (hopefully) projects are capitalized.

A third and frequent reason to incorporate is to avoid liability. Many acts carried out under the aegis of the corporation are protected by the "corporate veil." Corporate shareholders, agents or employees cannot be held liable for a great variety of actions within the course and scope of their corporate capacity. This also is known as the "corporate veil." Lawsuits frequently involve efforts to pierce the corporate veil, a possibility but an exception to the rule of corporate law. Also, an individual still can be held liable for his or her own conduct in certain contexts. If a UPS driver negligently blows a stop sign, the driver as well as UPS could be held liable for damages. (Of course, if the driver has been hied as an independent contractor, UPS can try to evade liability through the independent contractor defense, but that is another matter.)


An American corporation is an American corporation, though. Right?


An entity might be incorporated under the laws of a specific state, but it has no patriotic fervor. There is no mention of a corporate duty of patriotism in any of the laws governing corporate entities with either the Federal government or the governments of any of the states. If an entity’s articles of incorporation contain such a provision, one could argue the business incorporated under the laws of Indiana is an American corporation and must comport itself with American values, but those values would have to be specified. "American values" is a vague term. Even then, once a majority of shares of the corporation in question were purchased by someone with a contrary view, the articles of incorporation could be amended or completely re-written. Anyone with enough money to buy shares in a corporation can do so. Most people do not buy stock because the little money they have goes to items of everyday survival: food, housing, clothing, transportation. Wealthy people are more likely to invest in stocks because they have the extra money with which to play the market.

A person who buys shares in a corporation has not made a simple purchase of a commodity. The person now is a shareholder and owns a part of something that, by law, owes its shareholders a fiduciary duty. A fiduciary duty is a "relationship requiring the highest duty of care and arising between parties." Black’s, supra, at 256. In the case of a for-profit corporation, its fiduciary duty is to generate a profit for its shareholders.


What is judicial activism?


When courts /Courtdo not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress/Congress, rather than limiting itself to the powers traditionally given to the judiciary. I like this definition from Conservapedia, that finishes: "In this regard, judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate."

Senator Sheldon Whitehouse (D-RI) wrote in The National Law Journal there are five red flags for identifying judicial activism. A court would be judicially activist if: 1) Less likely to respect the judgments of the American people as expressed through state and federal legislatures; 2) Finds ways to eliminate precedents with which it disagrees; 3) "A parade of 5-4 decisions, particularly on major issues..."; 4) A discernible pattern of results consistent with the Court’s ideological preference; and 5) Prepared "to violate rules and tenets of appellate decision-making that have long guided courts of final appeal."

Justice Kennedy’s decision in Citizens United both violated Supreme Court rules and was disastrous in its implications for future elections, as demonstrated by the 2010 election campaigns.

Justice Stevens, in his dissent in Citizens United, wrote:

Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.

130 S.Ct. at 932.

The five elements of judicial activism, as described by Senator Whitehouse, are present in the Citizens United decision.

1) The Court did not respect the judgment of the American people as expressed through Congress.


Anytime the Supreme Court overturns a statute as unconstitutional, this claim can be made. After all, the legislative branch presumably expresses the judgment of the American people through the laws it passes. However, the Framers expressed fear of the power of the majority through the Congress. Madison wrote of his concerns in Federalist Paper 51. The judicial branch was seen as a check on the other two branches of government. Roger Sherman, James Madison, and Gouveurnor Morris at the 1787 Constitutional Convention all expressed belief in the necessity of this power. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is the case that established the judicial branch could strike down an act of Congress.

According to the Government Printing Office, the Court has declared 158 Federal statutes unconstitutional. One may question whether the Taney Court had a legitimate purpose in striking down The Missouri Compromise in Dred Scot v. Sandford, 60 U.S. 893 (1857). The Court’s rejection of various efforts at regulation of monopolies in the latter part of the Nineteenth Century seems to have been driven by considerations other than a concern for the Constitution. The monopolies of the 1890s wielded great clout.

In an 1893 speech to the New York State Bar Association, United States Supreme Court Justice David J. Brewer said:

"It is the unvarying law that the wealth of the community will be in the hands of the few.... The great majority of men are unwilling to endure that self-denial and saving which makes accumulations possible ... and hence it always has been, and until human nature is remodeled always will be true, that the wealth of a nation is in the hands of a few, while the many subsist upon the proceeds of their daily toil."

The Slaughterhouse cases, Butchers’ Benevolent Association v. Crescent City Livestock Landing & Slaughterhouse Co., 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873), were the first in a line of cases that construed the 14th Amendment as conferring economic due process rights to businesses. During the same period, in Plesy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), the Court chose to ignore the history of the ratification of the 14th Amendment and held that racial segregation passed constitutional muster so long as separate facilities for the races were equal.

One other period significant to consideration of the judicial nullification occurred near the start of the New Deal. Provisions of the National Recovery Act were declared unconstitutional. Schecter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).

In Citizens United, a majority of the Court reached out for an issue upon which to base its claim that the Federal statute in question was contrary to the Constitution.

 2) The Court found ways to eliminate precedents with which it disagrees.Again, this charge can be made against nearly any Court that acts to overturn long-standing precedent. In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), a unanimous Court dealt a blow to segregation and the notion that "separate but equal" is okay when it overturned Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). In Citizens United, Justice Kennedy and a majority of the Court apparently took umbrage with Court decisions dating back to the latter part of the nineteenth century that refused to confer upon corporations the same rights as those enjoyed by human beings.Why was the Brown Court’s striking down 58 years of precedent right, but the Roberts’ Court striking down years of precedent in Citizens United wrong? Ultimately, it can be asserted, the matter is personal and subjective.However, segregation of children by color is fundamentally wrong and immoral as determined by the people of this country through the Fourteenth Amendment to the United States Constitution: all persons are entitled to equal protection of the law. Therefore segregation and other discrimination by race are wrong. These are beliefs held across our society by a great majority of our citizens after a bloody Civil War and decades of struggle. By contrast, evidence of a widespread American belief in corporate First Amendment free speech rights is sparse. Just as absent is strong sentiment for corporations to be treated as actual human beings.The Citizens United Court had to find a way to eliminate precedents with which it disagreed. The Court ignored the doctrine of mootness, as is explained below, to address an issue stipulated out, at the District Court, by the parties.

3) Whether Citizens United is one case in a parade of 5-4 decisions issued by the Roberts Court on major issues is arguable.

   First, one must define "parade" in this context. Since the Court hands down approximately 85-90 cases per year, the term is relative as well as metaphorical.

   Second, one must consider how one defines "5-4 decision." In some cases, a vote may be 4-4 or 5-3, with one justice having recused himself or herself. Such a vote is the functional equivalent to a 5-4 v

vote.

   Third, the significance of number or percentage of 5-4 decisions relates to how one point of view or school of jurisprudence flexes its muscles. It also relates to messages the Court sends as to specific cases. In Brown, Chief Justice Warren felt the Court should send a strong message about equal rights of all citizens, regardless of race. He was insistent the decision be unanimous.

   With all that being said, through the beginning of 2011, the Roberts Court had handed down 147 cases. Of those 46 were 5-4 or 5-3. That is over 31%, an incredibly high percentage. The Roberts Court is more pro-business than any other Court in recent history. In the context of a discussion of Citizens United, this is an important distinction. A study titled "Is the Roberts Court Pro-Business?" was conducted by scholars at Northwestern University School of Law and the University of Chicago Law School. When I read about the study I was somewhat surprised. I was on staff at Northwestern University School of Law in the early 1980s and perceived not so much an equality of enmity between the two institutions as envy on the part of Northwestern toward UC. UC was said to have more Nobel laureates on the various schools of its faculty than any other institution of higher learning in the world. Its law school was a Top Five; NU’s was not. I found it difficult to believe faculty members of the two schools could cooperate on where to have lunch, to paraphrase Abbie Hoffman. (Of course, I was a member of the Northwestern University School of Law library staff. I shelved books in the daytime and did stand-up comedy at night. Still, in the basement break room of the old building, library clerical staff heard school gossip amongst law students and professors’ secretaries.) I also was surprised to see Judge Richard Posner, a very conservative judge appointed by Ronald Reagan to the 7th Circuit of the U.S. Court of Appeals in Chicago, was part of the group that conducted the study. He most definitely is not left-wing. His 1973 book The Economic Analysis of Law was a significant, and controversial, development in legal reasoning.

   The study analyzed 1,450 decisions of the Court since 1953 and concluded that the Roberts Court was significantly more conservative than the Rehnquist Court. The statistics set out in the study would indicate the Roberts Court is the most conservative Court over the period of the study. The study indicated the Roberts court ruled in favor of business interests 61 percent of the time, compared to 46 percent for the Rehnquist court, and 42 percent by all courts since 1953. Liptak, "Justices Offer Receptive Ear to Business Interests," New York Times, 12/18/10.

   Statistics, some would say, do not tell the entire story. Some pro-business opinions were written by justices considered to be amongst the Court’s liberals. This is a point at which a distinction between "conservative" and "liberal" becomes problematic. Because Jimmy Carter did not nominate anyone to the Supreme Court, the justices seated on the Court from 1969 to 1993—nearly a quarter of a century—were nominees of presidents Nixon, Ford, Reagan, and Bush I. Justice Stevens, a Ford nominee who retired earlier this year, once expressed surprise to be considered part of the liberal wing of the Court. In other words, the Court has been dominated by what some would call conservative, others reactionary, principles. Therefore, whether a justice considered "liberal" by some has written a pro-business opinion is not necessarily relevant to an analysis of the Roberts Court.

   5) Citizens United shows how the Roberts Court is prepared "to violate rules and tenets of appellate decision-making that have long guided courts of final appeal."

   The Roberts Court did not have to rule on the issues at the center of Citizens United. Justice Stevens notes in his dissent:

         The Court’s ruling threatens to undermine the integrity of elected institutions across the

      Nation.   The path it has taken to reach its outcome will, I fear, do damage to this institution. ... [I]t    is important to explain why the Court should not be deciding that question. ... The first reason is that the question was not properly brought before us. ... [T]he majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court.

130 S.Ct. at 931.

As Justice Stevens goes on to note, in "its motion for summary judgment ... Citizens United expressly abandoned its facial challenge (citation omitted) and the parties stipulated to the dismissal of that claim ..." Id. The facial challenge to the statute was not argued at the District Court or at the Court of Appeals. The facial challenge was not even mentioned in Citizens United’s merits briefing. 130 S.Ct. at 932.

   There is a reason appellate courts, except in rare circumstances, address only those issues raised, in the courts below, by the parties to the case. Article III, § 2[1] of the U.S. Constitution sets the parameters of the jurisdiction of the Court. The Court is barred from accepting hypothetical, abstract, or moot cases. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-42, 57 S.Ct. 461, 464, - - L.Ed. - - (1937): "A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot." "Moot" is defined as "Having no practical significance; hypothetical or academic <the question on appeal became moot once the parties settled their case>" Black’s Law Dictionary, New Pocket Ed., 1996, p. 422. The "mootness doctrine" is "The principle that American courts will not decide moot cases—that is, cases in which there is no longer any actual controversy." Id.

   The parties had settled, by stipulation to dismiss, the issue upon which the Supreme Court issued its decision. Justice Stevens notes, correctly, in his dissent, this not only was a violation of the mootness doctrine:

     By reinstating a claim that Citizens United abandoned, the Court gives it a perverse litigating advantage over its adversary, which was deprived of the opportunity to gather and present information necessary to its rebuttal.

130 S.Ct. 933, n. 4. Basic fairness was discarded as the Court addressed a question for which the Federal Election Commission, because of the parties’ stipulation, had not developed a record to support its position. That is an important consideration at the appellate level. If a fact is not contained in the record of proceedings below, it does not exist for purposes of the case. As an example, in a murder case a defendant could not argue error as to a ruling on his or her defense of alibi if the record lacked evidence or other means by which the appellate court could consider the issue. The FEC was at a disadvantage because the Court had asked, in the twelfth hour, to consider a question stipulated out at the District Court.

   So the Court reached to be able to decide the issues for which Citizens United gained its notoriety.

In my opinion, based on these facts, the Roberts Court is an activist Court.

Do monetary contributions affect political campaigns?

  There are at least two aspects to this question. First, does money spent in a campaign increase the likelihood of victory? Second, do donations, particularly in large amounts, corrupt the system? An illustration for any answer would be a photograph of a member of Congress in mid-drool as s/he stared at a stack of hundred-dollar bills.

Does money increase probability of victory?

   On this point there is dispute. In a study of campaigns, from 1992 to 2006, for seats in the U.S. House of Representatives by Americans for Campaign Reform, a nonincumbent candidate, in order to have a credible chance in a campaign, needed to spend between $700,000 and $1,000,000. However, once candidates exceed the threshold amount, returns diminish. The same study showed that, nine times out of ten, the candidate who spent more money won.

   Anecdotally one can argue money is not all that important in campaigns. Meg Whitman spent $178.5 million to lose the California gubernatorial race to Jerry Brown. Money does not guarantee victory. Of course, Whitman made a couple of mistakes before she entered the campaign. She expected illegal immigrants whom she had hired, and verbally abused, as domestics in her household, after they left her employ either to speak fondly of her or at least keep their mouths shut. This expectation was not prudent for a candidate who had chosen as a central campaign issue illegal immigration. Once news of her past hiring of illegals broke, her response was perceived, by many, as waffle and/or lie. Meg did not help herself in another way. I will summarize an ad run by Jerry Brown’s people near the end of the campaign: footage of a Meg Whitman speech in which she says she wishes things were as good as when she came to the State of California 30 years ago. Brown’s people overlaid a graphic that added: 30 years ago, Jerry Brown was Governor of California. One may argue Brown spent a lot of money, too. The television ad I just described cost money to shoot and to air. However, the final figures were Whitman’s $178.5 million to Brown’s $36.5 million, a significant disparity.

   There are other statistics specific to the 2010 campaign that suggest Democratic candidates spent more than Republican candidates. The 2010 mid-terms were seen as a major victory for the Republicans. If money means victory, and Democratic candidates outspent Republicans, the Democratic candidates should have won.

   John Jackson, a professor at the Paul Simon Public Policy Institute at Southern Illinois University-Carbondale, argues that the big money spent by outside Republican groups in the wake of Citizens United had an effect on the election. "First, it cannot be totally wasted money and uncorrelated with the fact that Republicans and Conservatives won big time and in lots of competitive places and even in some races where they should not have been competitive,( e.g Wisconsin Senate race with Feingold). Second, there is a financial ‘effectiveness threshold’ below which any campaign cannot fall and still be competitive. The extra money coming in to Conservative causes and candidates allowed them to be competitive everywhere and to reach that threshold everywhere. Money is fungible….Finally, the unions will never be able to keep pace. They have maxed out already and their numbers are shrinking."

Does money corrupt the system?

   Corruption is "the act of corrupting ... the state of being corrupt." The American College Dictionary, 1962, p. 273. To be corrupt, in this context, is "to destroy the integrity of; cause to be disloyal, etc.,

especially by bribery." Id.

   There are several points to support the argument that money does not corrupt the system. Politicians sought to be purchased cannot keep for personal use monies left over after a campaign. As Christine O’Donnell perhaps has learned, use of campaign funds for personal needs is illegal. Besides, it is rare for money to be left over after a campaign. Usually what is left over is debt. Corporations cannot deduct campaign contributions for income tax purposes. So the argument cannot be that campaign contributions are a write-off. The politician in question might already embrace the values advanced by the corporation. A member of Congress from West Virginia, whose constituency significantly depends upon the coal industry, probably does not need large funds from coal-mining interests to persuade him or her to vote consistently with what is best for the industry.

   Another view would rely upon (1) the fact that large sums are paid, and (2) the history of bribery and laws meant to stop bribery of public officials. If money is not important to political campaigns, politicians and corporations would not care so much about campaign contributions. By one estimate, members of Congress spend one-fourth of their time in fund-raising. I think a CEO would be righteously, if not rightfully, indignant having paid huge sums of money to support a candidate only to have the candidate, once elected, vote against the CEO’s corporation on a specific issue or set of issues. I remember footage from a hidden camera (today it would be called a "spycam") of United States Senator Harrison Williams of New Jersey during the Abscam scandal in the early 1980. In a hotel room (why does it always seem to be a hotel room?), accepted what obviously was meant as a bribe, stuffed the cash into various pockets of his suit, and asked if the packets of currency disturbed the lines of his clothing.

   Justice Kennedy, in Citizens United, notes that in Buckley, the "Court recognized a ‘sufficiently important’ governmental interest in ‘the prevention of corruption and the appearance of corruption." 130 S.Ct. at 901. The Buckley Court held:

It is unnecessary to look beyond the Act’s primary purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.

 

 

424 U.S. at 26-27, 96 S.Ct. at 638. The Court handed down Buckley in 1976. In the 1976 presidential campaign, the total spent by all candidates, according to U.S. New and World Report was $66.9 million. During the 2008 campaign, candidates spent over $1 billion. Even accounting for inflation, the increase is astronomical. Since the candidates covet office, they must have the money to run campaigns.

Lord Acton noted that power tends to corrupt; absolute power corrupts absolutely. Money perhaps is more insidious as a means of corruption. Then there was the advice given by someone, I think it was Marlon Brando as Don Corleone in GF1, to the effect that men are motivated by three things: power, greed, and sex. Money can be plugged in to obtain the power, and the sex is attendant upon the other two. Kissinger, after all, once said power is the ultimate aphrodisiac. Besides, if money does not corrupt and/or produce results, as I said previously, contributions cannot be written off as deductions. There would be no reason for CEOs to toss about such large sums.

Justice Kennedy’s opinion takes umbrage with Supreme Court decisions, particularly Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) and McConnell v. Federal Election Commission, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). As Justice Kennedy wrote of Austin:

To bypass Buckley and Bellotti, the Austin Court identified a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compelling governmental interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas." 494 U.S. at 660, 110 S.Ct. 1391; see id., at 659, 110 S.Ct. (citing MCFL, 479 U.S. at 257, 107 S.Ct. 616; NCPAC, 470 U.S. at 500-01, 1005 S.Ct. 1459).

130 S.Ct. 903.

How was this a "new" governmental interest? In McConnell, the Court noted: "More than a century ago the ‘sober-minded Elihu Root’ advocated legislation that would prohibit political contributions by corporations in order to prevent "‘the great aggregations of wealth, from using their corporate funds, directly or indirectly,’" to elect legislators who would "‘vote for their protection and the advancement of their interests as against those of the public.’" The Court cited to United States v. Automobile Workers, 352 U.S. 567, 571, 77 S.Ct. 529, 1 L.Ed. 563 (1957), an opinion written by Justice Felix Frankfurter. Root, a Republican, served first as Secretary of State the as Secretary of War under Theodore Roosevelt, and later was a United States Senator. The notion of antidistortion, then, is not a"new" governmental interest. As the Court notes in McConnell, the principle goes back to the early Twentieth Century. Obviously, the Court had adopted the concept with at least one decision in the Eisenhower Administration. Therefore Justice Kennedy’s assessment of antidistortion as a new governmental interest in limiting political speech is inaccurate.

Justice Kennedy’s assessment also seems to contradict his position, in the same Citizens United opinion, that elimination of corruption is a compelling governmental interest. 424 U.S. at 26-27, 96 S.Ct. at 638.

 



The implications of Citizens United are dire.

At the time of the general elections of 2010, the decision in Citizens United was less than nine months old. Many of the commentators have focused on the amounts and sources of money infused into the campaign as a result of the Supreme Court decision. I think this misses a more important aspect of the Supreme Court’s holding.

The government of the United States is based upon a constitution drafted and put into place by elites. A premise of our government is that however we define "We, the People," we mean for those people to be United States citizens. That is one concept trotted out by today’s so-called birthers, who have demanded President Obama is a United States citizen and eligible to hold the office to which he was elected in 2008. We should put that debate to rest. He was born in Hawai’i, after its admission in August 1959 as the 50th state to a mother who was a United States citizen.

Our real concerns should be that under Citizens United, foreign individuals and business entities can buy controlling interests in domestic corporations and exercise the same rights as people who were born here and live here. It is unlikely such interests will act with the well-being of the United States foremost in their thoughts. I hardly think the Chinese or the Saudis give a damn about our concept of human rights: ask the guy with the shopping bags in Tiananmen Square who made those tanks stop. Or check the Chinese record for purity of foods and drugs it produces, or the safety of its consumer goods exported to the United States. Discuss with the Saudis their concept of free speech. These are the groups who stand to gain—gain political control of the United States—because of Citizens United.

As previously noted, Thomas Jefferson wrote of "the aristocracies of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country." The problems posed by those business entities are exacerbated by the holding of Citizens United.

 

 

 

 

4) Citizens United is part of a discernible pattern of results consistent with the Court’s ideological preference.

 

In this context, one should consider what the Framers would have thought of the extension of the rights of human beings to modern corporations. Corporations were tightly controlled in their day. Shares of a modern corporation can be bought by anyone with money sufficient for the price of shares. It would strain credulity to think the Framers intended to bestow the rights of human beings on entities capable of being taken over by, for example, the British. There was plenty of capital in London to make the right buys. The purchases would have given the British the power of citizens here.

 

When the Constitution was drafted in 1787, did the Framers consider corporations to enjoy the same rights as human beings?

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