Monday, September 07, 2009

Awaiting Wednesday- And Not Only For Health Care

You might think syndicated columnist E.J. Dionne is being cute, ironic, or hyperbolic when he calls President Obama's upcoming health care speech on September 9 "only the second most consequential political moment of the week."

If anything, however, Dionne is minimizing the importance of the arguments to be made on Wednesday before the United States Supreme Court in Citizens United v. Federal Election Commission. It all began when Citizens United wanted to slam a presidential candidate with "Hillary: The Movie," distribute it via OnDemand, and buy commercials promoting said documentary.

Not wishing to disclose the identity of the corporate contributors which were partially financing the film, the conservative group filed a suit to be exempt from the restrictions of the 2002 McCain Feingold campaign finance law. The case was first heard by the Supreme Court in March, 2009, whereupon, unusually, it ordered a new set of arguments and a new hearing, for September 9 to consider not only the constitutionality of McCain-Feingold but two other laws limiting campaign funding by corporations.

This is not good, not good at all. Dionne is right but unintentionally understated when he writes

The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word "radical" does not capture the extent to which the justices could turn our political system upside down. Will it use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?

Last week, Bill Moyers moderated a polite debate (transcript of program here; click here to view debate) between famous First Amendment attorney Floyd Abrams, one of the lawyers who will be arguing for the plaintiff, and Trevor Potter, who helped create McCain-Feingold and has filed a friend-of-the-court brief. Abrams erroneously sees this as a free speech issue, but Potter sets out the differences between a corporation and an individual, first explaining

Now, you and I have never seen a corporation walking down the street and we haven't seen one in the voting booth. That's because corporations are creatures of the state. That sounds like some piece of law school mumbo jumbo, but it's not. Corporations exist, because government said, "We're going to give you limited liability for commercial, for economic purposes. We're going to take somebody who might have lost everything they invested and we're going to say you can limit your liability by having a corporate form. You only lose what you invest".... And that the notion that they have full First Amendment free speech rights, as well, doesn't make any sense for this artificial creation that exists for economic, not political purposes.

Corporations have not had, should not have, "full First Amendment free speech rights" as an "artificial creation that exists for economic, not political purposes," which

want, if they could get it out of government, monopolies. They want the ability to defeat their competitors. And if they can use government to do that, they will. Individuals have a whole range of interests. Individuals go to church, they care about religious and social issues, they care about the future of the country. They're voters.

So, they have a range of issues at stake that corporations don't have. Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere, when we're deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy.

And this would put our democratic republic as we have known it in great jeopardy, at the mercy of corporations like Exxon Mobil, which

has a political action committee, which means voluntary contributions given by shareholders and executives, about 900 thousand dollars in the last cycle. It made last year 85 billion dollars.

Now, there's just a world of difference in the resources available if you say to a corporation, "You can spend money to defeat global-- candidates who are in favor of global warming legislation." If coal companies can go out and say, "If you don't sign our pledge to support coal we're going to defeat you. We're going to spend money against you." You take those enormous economic resources and you use them for something that we've never seen before. That I think is the radical nature.

Corporations clearly are not hamstrung now, given

the enormous amount of speech that exists in the current system, which is essentially full free speech for individuals; the ability of a corporation or a union to have a political action committee gather individual funds and spend that, the exemption that exists for the press; the commercial exemption that exists; the exemption that the Supreme Court created for nonprofit corporations, as long as they're not a conduit for corporate funds.

There is virtually full access to the political process, other than use of a for-profit corporation of shareholders' treasury funds. Odd (no, not really) that conservatives have been targeting McCain-Feingold (a major source of their distrust of the Arizona senator) when an activist Court would be striking a blow against the economic liberty of individuals (shareholders). Potter poses the questions of

whose money is this anyway? It is not the CEO's, who's making the decision. If you're going to say corporations should have speech, then you open the whole question of, "Well, who decides what that speech should be? Don't you consult the shareholders? Do you allow shareholders to opt out? The way you allow union members to opt out of having their money used?"

Potter concludes by summarizing:

So, we're not talking about political speech by people who care about their country, who are concerned about changes in society, who are dealing fairly with friends and neighbors and all the things that get involved in politics. We're talking about a potential spender here that has a single-minded purpose, which is to make more money, to maximize their value. And I think what we're looking at here is not a First Amendment speech right, because the individuals who head those corporations have that now, their PAC's have it now, their shareholders have it now. We're talking about using the funds that are amassed under the preferential corporate treatment, to go out and seek economic gain, what they call economic rents, through legislation, by electing people who will give the corporation what it wants, whether or not is in the greater good. And I don't think that's the essence of democracy. And I don't think it has been or should be the way the First Amendment is read.

The case against Citizens United and eviscerating a decades-long effort to limit the domination of big money in the political process is strong. The good news: E.J. Dionne believes that the swing vote belongs to a justice who has "spoken eloquently about the dangers of ignoring precedents." The bad news: that jurist is Chief Justice John Roberts. The strength of the democracy, and interests of the middle class, are in jeopardy.

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