Civil Discourse Now

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The Supreme Court's decision in "Citizens United" is bad on a scale of "Dred Scott."

   Our election process was significantly damaged by one of the worst decisions in the history of the United States Supreme Court, Citizens United v. Federal Election Commission. Procedurally, the decision was hypocritical, an act of judicial activism antithetical to the what generally is viewed as appropriate by Republicans.  Substantively, it enables foreign shareholders to exercise the rights of American citizens through the corporations those shareholders come to own and control. 

  We face 2012 and, with it, general elections for a significant number of major offices, particularly that of President of the United States. It is time to re-visit one specific decision of the United States Supreme Court.

CENTRAL THESIS: The danger posed by the Court’s decision in Citizens United only in part has to do with campaign finance. The greater danger is its new-found bestowal upon corporations of rights equal to those of human beings. The 2010 elections, despite the significant amounts of money spent, do not reflect the impact the case will have on our election process.

   A corporation is not a living, breathing thing. It is created by statutes and consists of a piece of paper. A corporation has no national loyalties. Its loyalties are to its shareholders. A for-profit corporation’s morality is shaped by its reason for existence—profit.

   In this country, anyone with the money to purchase shares of stock can do so. Stockbrokers do not check customers’ passports, only their credit ratings, and are glad to buy for American, Brit, Canadian, Chinese, Saudi, or Yemeni. By the same principle, a corporation may be chartered under the laws of Delaware or Indiana, but has no national loyalty. The corporation follows the dictates of its board of directors. The board is elected by shareholders based upon numbers of shares owned.

   The upshot is the Supreme Court gave corporations some of the same rights as United States citizens. Control of corporations can be purchased by non-American individuals or entities. If a Chinese corporation purchases controlling interest in a U.S.-chartered corporation, then Chinese nationals control that corporation. The folks who brought tanks to Tiananmen Square gain a significantly larger hand in U.S. elections than the average American. I wonder where the guy is—or his remains are—who held those shopping bags and stood in front of the tank? He wasn’t at any of the press conferences that promoted the 2008 Olympics. Soldiers goose-stepped, at the opening ceremonies, across the floor of the Olympic Stadium. Even the Nazis did not goose-step their military in the opening ceremonies of the 1936 Berlin Olympics.          

   The Saudis have a lot of money, too, as do a few other countries. Perhaps I sound xenophobic, i.e., expressing a fear or hatred of foreigners. I also fear so-called American corporations. Union Carbide killed a lot of people in Bhopal, India, in December, 1984. Our nation’s banks profited after 2007 from a catastrophe they helped create and for which they then were bailed out.

   Corporations, before Citizens United, already wielded power in our government, but at least they had to operate through human cut-outs. Now corporations are recognized as having the same rights as living, breathing human beings.     

     Until January, 2010, there were restrictions placed on the amounts of money corporations could contribute to political campaigns. In January, the U.S. Supreme Court issued its ruling in Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S.Ct. 876 (2010).

   In rules of legal writing, only one court is referred to as "the Court," and that is the United States Supreme Court. In this column, and any other I post on this website, I will endeavor to follow those rules. So my references to the Court has no symbolic value I seek to advance.

What was Citizens United about?

   Quite simply? It was about bashing Hillary Clinton.

   Citizens United is a nonprofit corporation. Its annual budget was about $12 million.  "Most of the funds are from donations by individuals; but, in addition, it accepts a small portion of its funds from for-profit corporations. 130 S.Ct. at 886-87. In January, 2008, Citizens United released a film entitled "Hillary: The Movie." The Court characterized the 90-minute film as a documentary that "mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton." 130 S.Ct. at 887. In December, 2007, a cable company offered to make Hillary available, for free to viewers, on a video-on-demand channel called "Elections ‘08." To promote the film, ads were developed. As the Court noted: "Each ad includes a short (and, in our view, pejorative) statement about Senator Clinton" followed by the movie title and website. 130 S.Ct. at 887.

Is Hillary: The Movie protected free speech?

   The First Amendment provides: "Congress shall make no law ... abridging the freedom of speech, or of the press..." In 1915, the United States Supreme Court held that movies are not protected by the First. After all, where are movies mentioned in the Amendment? In a 1951 decision, Paramount Pictures v. United States, the Court overruled the 1915 case. So yes—the movie is protected by the First Amendment.

If this was protected free speech, why was there any dispute to bring to the Court?

   The issue was not whether the film’s producers could show Hillary. That would have been a slam-dunk. The issue was about money. At this point, I think the Court’s decision is to the point:

   Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited—and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified elections.

BCRA amended existing federal law to prohibit any "electioneering communication," defined as any broadcast, cable, or satellite communication that refers to a clearly identified candidate for Federal office and is made within 30 days of a primary or 60 days of a general election.  2 U.S.C. § 434(f)(3)(A).  

   "Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections but feared that the BCRA’s ban on corporate-funded independent expenditures would subject Citizens United to civil and criminal penalties.

   BCRA also requires a disclaimer in TV advertising to identify any person or entity, other than a candidate, responsible for the content of the ad. 2 U.S.C.A. § 201. Any person or entity who provides more than $10,000.00 on electioneering communications within a calendar year is required to file a disclosure statement with the FEC. 2 U.S.C.A. § 311.

What was the nature of the case that went to the Supreme Court?

   There are various types of legal actions in our courts. Someone (a human being) or something (a corporation or other legal entity) desiring a court to take action on a matter is called a party. A party does not simply file a paper marked "lawsuit" and give it to a clerk to figure out.

   Citizens United filed a declaratory action and sought injunctive relief. In other words, they wanted a court to rule the BCRA was unconstitutional and to order the Federal Election Commission from enforcement of the BCRA. They argued (1) the BCRA was unconstitutional as applied to Hillary and (2) Disclaimer/disclosure requirements would expose donors to retaliation.     The District Court entered summary judgment in favor of the FEC, holding there was no material issue of fact and that the law, as set down by previous decisions of the Supreme Court, clearly was on the FEC’s side.

   A case usually is heard by the Supreme Court through the filing of a writ of certiorari. As noted on the Department of Justice website, although "most cases are subject to Supreme Court review only under the Court's discretionary certiorari jurisdiction, in some cases the law provides for an "appeal" to the Court, rather than for review by writ of certiorari.  (One common example of appellate jurisdiction is a case that arises under the Voting Rights Act.)  In practice, the Court’s appellate jurisdiction is also highly discretionary, but the form of papers filed and orders issued is somewhat different.  Instead of a writ of certiorari, the party seeking review files a "jurisdictional statement" setting forth the grounds for appellate jurisdiction and argues that the case presents a substantial question that warrants Supreme Court review. The party that opposes review files a response that is styled a "motion to dismiss or affirm."  If the Court decides to review the case, its issues an order that "notes probable jurisdiction" over the case.  If the Court decides not to entertain full briefing and argument, it may issue a summary order affirming or reversing the judgment of the lower court, or it may "dismiss" the case "for lack of a substantial federal question."  Summary affirmances and reversals have precedential value; dismissals are generally viewed as denials of certiorari."

   In any case, the issues to be raised have to have been argued and addressed by the parties and the lower court.  The Supreme Court cannot simply reach down and announce it is interested in issuing an opinion in a matter.  There has to be a case in controversy, as the saying goes. However, the Court may consider a case where it finds "probable jurisdiction to do so.

   Use of the word "argue" has different meaning in appellate law. One typically thinks of opponents in a debate or in court who speak and advance their positions on the matters in issue. In appellate law, to argue also means to set forth one’s positions in the briefs filed with the Court.   

What was the outcome of the case?

   By a 5-4 vote the Court affirmed in part and reversed in part the decision of the lower court. Justice Kennedy wrote for a majority that held (1) the BCRA’s restrictions on corporate and union contributions were an unconstitutional violation of the free speech provisions of the First Amendment, but (2) disclaimer/disclosure requirements were not constitutional.

   The decision was controversial for several reasons. First, it recognized that corporations have the same First Amendment right to free speech as human beings. Second, it significantly lifted campaign restrictions on corporations. Third, the Court ignored the stipulations made by the parties to the case—including Citizens United itself—to reach the issues it wanted to address.

What is a stipulation?


A stipulation is a voluntary agreement between opposing parties concerning some relevant point. Black’s Law Dictionary, New Pocket ed., 1996, p. 594. Parties to a case are bound by their stipulations.   

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

   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.   

What is the nature of corporations under our laws?

   There no longer are the same limitations on the purpose for creating a corporation as there were in the early 1800s. In Indiana, 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 name one wishes to use has not already been taken.

   A frequent reason to incorporate is to avoid liability. Many acts carried out under the name of the corporation are protected by the "corporate veil." Corporate shareholders, agents or employees cannot be held liable for a great variety of actions if acting 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 as to certain matters. That can be accomplished, but it is the 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 driver for UPS negligently blows a stop sign, the driver as well as UPS could be held liable for damages.

   If I have enough money to buy shares in a corporation, I can do so. Theoretically, so can anyone. 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 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), in which a unanimous Court overturned the notion that segregation of schools was permissible if the schools in question were "separate but equal," the holding of the Court in 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 that same rights as the rights 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 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.  

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

   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. 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 great 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.

   This harkens to the impeachment and trial of Justice Samuel Chase in 1804-05. Chase remains the only justice of the Supreme Court to be impeached.

   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. The Court is an activist Court.

Do monetary contributions affect political campaigns?

   There two aspects to the answer 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?

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.

   One can look at the $142 million Meg Whitman spent to lose the California gubernatorial race to Jerry Brown and conclude money does not guarantee victory. Of course, Whitman made a couple of mistakes before she entered the campaign. She expected illegal immigrants she had hired as domestics in her household, and then treated badly, after they left her employ either to speak fondly of her or at least keep their mouths shut. This mistake was not prudent in a campaign in which she chose to focus on illegal immigration. Once news broke, her response was perceived, by many, as waffle and lie. Then there was the ad run by Jerry Brown’s people near the end of the campaign. If you have not seen it, I will summarize: footage of a Meg Whitman campaign 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 said: 30 years ago, Jerry Brown was Governor of California.

   There are other statistics specific to the 2010 campaign that suggest Democratic candidates spent more than Republican candidates.

Does money corrupt the system?

   One view would be that 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. Politicians cannot keep, for personal use, monies left over after a campaign, as Christine O’Donnell perhaps learned. Of course, it is rare for money to be left over after a campaign. Usually what is left over is debt. Corporations cannot deduct contributions. So the argument cannot be that campaign contributions are a write-off.

   Of course, 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 coal, 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 the fact that large sums are paid, and upon the history of bribes and laws meant to stop bribery of public officials.

   I think a CEO would be righteously, if not rightfully, indignant over 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. He was in 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 other 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.

   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.

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Comment by Mark Small on January 3, 2012 at 6:23am


I do not want to appear or be impatient, but do you want to be on the show this coming Saturday to discuss the Citizens United case & its implications? Please let me know as soon as would be feasible. Thanks, Mark


Comment by Mark Small on December 31, 2011 at 10:18pm


Do you want to be on te show next Saturday & we can discuss this topic? We can set parameters so as not to be too vague. 11 am at Big Hat Books 6510 Cornell Avenue in Broad Ripple. Let me know.

Comment by Mark Small on December 31, 2011 at 7:08am

  1) My "point" does not boil down to the simplified phrase you have chosen. The First Amendment provides for free association. Your simplification is the absurdity. Corporations are not people. Great, the ACLU is a corporation. ACLU’s amicus brief addressed a narrow matter in the case, about speech itself—not money. Ira Glasser misses the same aspect of the case as you have: some corporations have a lot more money to dump into campaigns than others. BP has tons more cash than most NFPs.

  2) The difference between "corporations" and "other associations" is that a corporation is an entity created on a piece of paper. Its interests are those of the people who hold pieces of paper that give them ownership in the original piece of paper.

  3) I addressed the matter of the Framers and their beliefs about corporations.

Comment by Mark Small on December 25, 2011 at 9:20am


  As to "absurd Hyperbole, and with particular reference to race," please be more specific. My concern about foreign influence on our political process has to do with the manner in which foreign nationals can obtain standing, through corporations, that otherwise would not be allowed. The foreign nationals about which I am concerned primarily  are governments or quasi-governmental entities. China's government is not the same as China's people. There a very few at the top run an autocracy that has a bad record when it comes to such matters as human rights, control of pollution, and impurities in consumer goods (that ultimately reached the U.S.).

   You speak of corporations as though they are human beings. My point is, corporations are not human beings. I agree with many positions of the ACLU, but corporate free speech is not amongst them. Your quote from the First Amendment---the bold print on "no law" was unnecessary---misses the origins and evolution of the First Amendment. Only in recent years have crporations gained status similar to live, breathing human beings. When the Constitutional Convention convened, corporations' charters were limited purpose and existence. They were temporary in nature. So my argument is not one evocative of "Yellow Peril." And when it comes to absurd hyperbole, you step over the line there.

   The Constitution and subsequent amendments to it make distinctions between natural born citizens and others. For example, Art. II, sec. 1, para. 5 specifically limits persons eligible to be president to "a natural born Citizen, or a Citizen of the United States, at the time of the Articles of Confederation." The influence of foreign corporations would have been something with which the Framers, I believe, would have had a problem. After all, they just had experienced a dust-up with the East India Tea Company. My criticisms of corporations included Union Carbide in India.

   You argument for protection of seemingly unlimited amounts of money in political campaigns is seriously flawed. Citizens United was about cash flow. The case conferred personhood on a corporation. Our next step might be election of an avatar as president. Wait---maybe that is absrud hyperbole.    

   If corporations enjoy the same rights as living human beings,  

Comment by Mark Small on December 24, 2011 at 7:38am


Corporations, in this context, compound the abilty of a few people with a lot of money to overwhelm groups of actual human beings. The Court conferred the rights of humans to fictional forms. Also, control of those fictional forms can be purchased, by way of shares of stock, by human beings or corporations who are not eligible to vote here. Foreign nationals can control matters here more easily than they already control them.  


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