Saturday, January 23, 2010

Kennedy Strikes A Blow For The Powerful

Q. What do you call someone who aims to make a powerful argument in favor of a
position and in so doing undermines his own position?

A. Anthony Kennedy

Delivering the majority position in Citizens United v. Federal Elections Commission on Thursday, Justice Kennedy argued

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.... The rights 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.... (p. 30)

Premised on mistrust of governmental powers, the First Amendment stands against attempts to disfavor certain subjects or viewpoints .... (p, 31)

Quite apart from the purpose or effect of regulatory content, moreover, the Government may commit a constitutional wrong whereby how it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right of the use speech to strive to establish worth, standing, and respect for the speaker's voice. (p. 31)

And so Justice Kennedy led the fight to disfavor certain subjects or viewpoints. Think Progress reports that the U.S. Chamber of Commerce has told Roll Call that the $123 million it spent in 2009 influencing federal policy

shouldn’t come as a shock to anyone because it was an incredibly active year for the president and the economy,” said Tita Freeman, a chamber spokeswoman. “Hence the chamber was active in all of the major debates that impacted the economy and business community.”

Freeman said the big spike in spending in the fourth quarter was due largely to health care, including issue ads, meetings and letter-writing campaigns.

Aside from health care, the chamber listed a slew of other lobbying issues, including energy and climate change legislation, endangered species regulatory processes, executive compensation and travel promotion.

And it shouldn't- shouldn't- come as a surprise to Justice Kennedy that if the Chamber of Commerce is spending $100-$150 million (and that in only one year) to "favor" the anti-climate science or anti-health care "viewpoints," it is disfavoring the other viewpoints, whose proponents are not likely to have a hundred million bucks lying around.

The Court, led by Justice Kennedy, surely is "taking the right to speak from some and giving it to others," thus "depriving the disadvantaged person or class of the right to use speech" for its purposes. The Chamber already spent over $100 million to advance its viewpoints, probably more than most readers of this blog had to promote its point of view. It may be hard for us to think of the Chamber of Commerce as "the disadvantaged person or class"- but then we are not Anthony Kennedy.

No one would deny, or would have denied, that "speech is an essential mechanism of democracy." The First Amendment guarantees the right against government intrusion to "freedom of speech"- a right held, even before Thursday, by every executive of the Chamber of Commerce and of every corporation in the United States. In its decision creating the right of a corporation to spend its treasury funds on broadcast ads, campaign workers or billboards that urge the election or defeat of a federal candidate, the Court seems to suggest that speech becomes "free" when an organization is able to buy it. Officials thereby become accountable not to the people but to those able to buy the speech, who purchase, as Think Progress put it, "the opportunity to purchase its own fleet of friendly lawmakers."

This purchase would be easily made. Jamie Raskin, a professor of constitutional law at American University and Maryland state legislator, on Friday's Democracy Now! spoke of

Exxon Mobil, which is the biggest corporation in America. In 2008, they posted profits of $85 billion. And so, if they decided to spend, say, a modest ten percent of their profits in one year, $8.5 billion, that would be three times more than the Obama campaign, the McCain campaign and every candidate for House and Senate in the country spent in 2008. That’s one corporation. So think about the Fortune 500.

Justice Kennedy is right to be concerned that government might "identify certain preferred speakers." He should know- he has done so himself or, rather, with four co-conspirators.


Dan said...

You quoted it, so do think about it: "Premised on mistrust of governmental powers, the First Amendment stands against attempts to disfavor certain subjects or viewpoints"

You again argue large corporations have lots of money to spend advertising for or against candidates, therefore they should be banned from doing this because they have undue influence. Yet you fail to recognize the truth that individuals can buy advertisements, and if Bill Gates decided to buy every billboard in the country with anti-Obama ads, he could legally do so. Political parties can also do this, so your argument about unfair influence and money doesn't hold unless you apply it to all and argue for a fully controlled and equalized system. Why should a man be able to buy as much advertising as he wants if I can't afford to, especially given you use this very argument against corporations?Would restricting the right of Bill Gates to buy these ads be unconstitutional according to the First Amendment. Clearly so. Restricting corporations is one of the "attempts to disfavor certain subjects or viewpoints" which you and others deem to be harmful because of their wealth, size, profit-motive, and your political leanings. By restricting them specifically, the government was prefering certain speakers and allowing them to have more influence and ability to corrupt and buy Congress, but I suppose it's fine as long as they aren't corporations.

I listened to a good deal of the oral arguments presented to the Court, and it's no surprise to me that the ACLU supported Citizens United, and that the Justices acted broadly. The Justices questioned the government on whether or not the government could have banned Hillary the movie if it had instead been published as a book immediately before the election. The Government's answer at first was "we wouldn't think of doing that," but here is how it played out with further questioning according to

"When the argument turned to such First Amendment horrors as banning books, banning Internet expression, and banning even Amazon’s book-downloading technology, “Kindle,” the members of the Court seemed instantly to recoil from the sweep of arguments made by Deputy Solicitor General Malcolm L. Stewart.

Even Justice David H. Souter, who tends to support government regulation of campaign spending, looked and sounded stunned when Stewart argued that the government would have power to forbid a labor union to use its own funds to pay an author to write a campaign biography that would later be published in book form by Random House. And, across the bench, incredulity showed when Stewart said the government could ban an advocacy group from using its own funds to pay for a 90-minute documentary if only the first minute was devoted to urging voters whom to choose, and the rest was a recital of information about the candidate without further direct advocacy."

It was listening to these arguments that made it clear to me this case should not be limited to the one hillary movie because it has such broad implications and authority given to the government to determine what qualified as direct advocacy material was vast and subjective.

There is no doubt justices unfortunately have biases and political leanings and are aware of the composition of the Court. Feel free to call them activist for deciding on the broader constitutional question, rather than avoiding it and upholding precedents that grew more questionable under examination. The 100 years of precedent you cite so favorably is interesting. Ironically, you argue the court was activist for overturning precedent, but think it is precedent you are really arguing against yourself: the equally old precedent of awarding personhood to corporations.

Dan said...

Furthermore, in response to your quote about "no real change" since the precedent cases, and also of the arbitrary exemption of media corporations from the laws, as well as the role of blogs like yours:

"The U.S. Supreme Court's sweeping ruling on Thursday that invalidated large chunks of campaign finance law arose in part from an unlikely source: the emergence of Facebook, YouTube, and blogs, and the decline of traditional media outlets.

A 5-4 majority concluded that technological changes have chipped away at the justification for a law that allows individuals to create a blog with opinions about a political candidate--but threatens the ACLU, the National Rifle Association, a labor union, or a corporation with felony charges if they do the same.

The now-invalidated law "would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds," Justice Anthony Kennedy wrote in the majority opinion (PDF). "The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech."

"The New York Times endorses political candidates (in 2008, it endorsed Barack Obama). So does the New York Post (it chose John McCain).

Those endorsements on the eve of a presidential election were permitted under U.S. election laws--even though both newspapers are owned by corporations with market capitalizations in the billions of dollars. But the tiny nonprofit called Citizens United, funded mostly by individual donations, was barred from sharing its own political views.
Joel Gora, a professor at Brooklyn Law School and ACLU lawyer who argued a landmark 1976 Supreme Court case, wrote at The New York Times' Web site today that the justices "dismantled the First Amendment 'caste system' in election speech. Before today, the right to speak depended on who was doing the speaking: business corporations, no, unless they were media corporations; nonprofit corporations, maybe, depending on where they got their funding; labor unions, no."

This legal equivalent of a caste system was assembled by legislators and judges during an era when the only national television broadcasters were the major networks, when only Hollywood produced documentaries, and when only large publishers owned printing presses."

Dan said...

Play the lower audio link "Citizens United v. Federal Election Commission - Oral Argument" and go 29 minutes in to hear about banning books and the governments position

also overview of re-argument

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