La Dolce Vita

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JANUARY 18, 2012 2:30PM

Who's behind Citizens United

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This week marks the 2nd anniversary of the Citizens United v. FEC ruling which was written into history by the Supreme Court of the United States on January 21, 2010.  By now, most people recognize the true historic significance of this ruling.  It basically reversed the framers’ intent to have “the people” decide who is elected into leadership positions in this country. 

In the not-to-distant future, American history books will have a chapter entitled “Citizens United – the SCOTUS ruling that brought down our democracy.”  The Citizens United (CU) decision will rank as high, or higher, than the Dred Scott Decision in being the most un-American, un-democratic SCOTUS ruling in the history of the United States. 

Who were the people responsible for this ruling?  Where are they now? 

The five-member SCOTUS CU majority (Kennedy, Roberts, Scalia, Alito and Thomas) continue to defend their 2010 decision.   Soon they may be able to decide in favor of even more corporate control over our elections.  Earlier this month, the Republican National Committee filed a brief that argues that corporations should be allowed to give money directly to federal candidates.  Will the Citizens United Five maintain their corporatist stand if this case reaches their court? 

Citizens United’s primary defense attorney, James Bopp, continues to “lead a crusade to topple all limits on the role of money in politics.”   

Furthermore, conservative think tanks, like The Heritage Foundation, and libertarian advocacy groups, like The Institute for Justice, continue to seek ways to expand the rights of corporations in our election process.    

However, what came as a surprise to most progressives during the Citizens United debate was the support given to the ruling by normally liberal-leaning groups and individuals.  The American Civil Liberties Union (ACLU), for example, was especially vocal in its support.  Ira Glasser, former ACLU Executive Director, wrote this after the ruling:  

Liberals, and others like them, who denounced the decision have failed to appreciate what a great ruling it was for the First Amendment, and what a huge victory it was for freedom of speech and against government censorship. Yes, censorship. 

Even more disturbing for progressives was the support given to the Citizens United decision by the respected First Amendment icon, Floyd Abrams.  On the first anniversary of the ruling Abrams stated:    

When the Citizens United decision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president. 

During the past two years, the general public and a majority of the constitutional law analysts in this country have debunked the logic used in the CU proponents’ reasoning.  We now know that the common thread found in each of the proponent’s arguments is based on these words included in Justice Scalia’s support of the majority opinion:  

The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speakers, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals…Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate. 

The problem with this argument is that the CU proponents were caught up in a narrow reading of the First Amendment.  They failed to stand back and recognize that this amendment is just one amendment of ten that constitute the Bill of Rights, and that the whole purpose of the Bill of Rights is to protect the rights of an “individual” citizen of this country (a person). 

In the words of Floyd Abrams, Americans do “enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed.”   But that is because the Nazi, the pornographer and the animal torturer are each a “person.”  And it is a "person" who we feel should be protected under each amendment of the Bill of Rights, including the amendment which protects freedom of speech.

No definition of the word “person” includes the word “corporation.” 

The Heritage Foundation and other conservative organizations will continue to support the CU ruling, and understandably so, since they’re simply supporting their corporate sponsors.  But the liberal supporters of this democracy-crushing decision must, by now, understand (and hopefully accept) the logical reasoning of the opposition. 

Let’s hope that they reverse their position on this issue and begin to openly support the will of “the people.”



Update:  January 20, 2012 

In comments, Ted Frier has provided an excellent analysis of the Citizens United decision, tying it into SCOTUS’s “conservative Opus Dei Catholic caucus” and noting the contemporary internal conflicts relating to the   Bush v. Gore decision.  He also references Jeffrey Toobin’s book “The Nine,” which offers some great insights into today’s Supreme Court. 

Ted closed his comment by saying:     

With the passage of time and with the fading of partisan memories and the self-serving rationalizations that go with them, I've no doubt that Bush v. Gore and Citizens United will join those other abominations of the Court, like Dred Scott v. Sandford, which stand as sobering reminders that, despite its many marble statues, the Supreme Court remains a thoroughly human institution where fragile principles like rule of law are too often a feeble match for human ambition and desire.


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Informative, persuasive, and well-written. I hope this piece will be published more widely.
SR - Get a grip, already; "Lions and Tigers and Bears, OH MY. "
DR - You wrote: "I hope this piece will be published more widely."

Me too. Jeezus. I thought Cracker Jack only had toy prizes.
I have no problem with defining a corporation as a person. This interpretation has longed served corporate America in terms of liability suits, etc. However...
(there's always a however)
...persons are restricted individually in the amount that they can donate to a candidate or political organization. If the CU case indeed proclaims such organizations to be a person and entitled to the same protection then it is also true that the person of the organization must be bound by the restrictions as well.
Unless I am sadly mistaken in how I perceive things, this would curtail the seemingly limitless spending that "superpacs" are now able to enjoy. One corporation equals one person. Any one person is limited in how they can contribute.
....oh, and parenthetically, I think that you are also suggesting that this decision is not consistent with what many conservatives would construe as a "strict constructionist" interpretation of the original meaning of the Constitution and Bill of Rights. That being the case, I wonder how and why so many conservatives can be so gleefully supportive of it--unless, of course, strict construtionist means interpreting the Constitution anyway in which conservatives pragmatically want it to be interpreted.
ejdavid301 and Walter Blevins

I’m lost for words as to how to respond to your comments. But I do respect your right to present your views.

Thank you for presenting your opinions.
I suspect that you're right on how this decision will be viewed down the road Steve. As if free speech and unlimited (and near anonymous) campaign funding are inexorably linked. Though it looks like one of your commenters thinks there's not nearly enough corporate money in the political process.
the people have the means to shape their nation as they wish. that they accept all that their masters do is the measure of their character.

you say you worry about the loss of democracy, but cows can not have democracy.

i suggest you stop worrying about the quality of the elite, and think of some way to raise the quality of the cows. it won't be easy.
♥╚═══╝╚╝╚╝╚═══╩═══╝─╚For the insight into the new processes forming around the elections.
Under the law, a corporation is a legal person and is treated as such.
We hold these truths to be self-evident:
That all men are created equal
That they are endowed by their Creator with certain inalienable rights
That among these are the rights to life, liberty and the pursuit of happiness.

Corporations are not people, my friend. They are not living, corporeal entities. In other words, they cannot be endowed by any "Creator" entity with any inalienable rights. Corporate personhood is a legal fiction to allow the individual to sue for damages, breach of contract, bad faith, malfeasance and other civil and criminal issues which can be said to be, utltimately, the responsiblity of the corporations as well as their agents and members.

Corporations, in and of themselves, have absolutely NO Protections under the Constitution or Bill of Rights, per se. Their corporate 'personhood' does allow them the legal protections of due process, but not free speech or political discourse. A Corporation has no inherent right to argue for policy, economic law or favorable consideration of same.

I know the SCOTUS as a whole disagrees, but that's what happens when a court is packed.

MY question is: Where have our leaders and statesmen gone?
Where is the actual person of integrity and sacred honor in our political climate today?

Might as well be asking where Obama's Kenyan Birth Certificate is -- it -- and they -- simply doesn't exist.

Dear Heavens, do wash you mouth out ... You put STEVENS with the majority when Stevens wrote the Dissent! Alito is the yahoo who joined the majority.
My bad Tx. It has been corrected. Thanks.
Very well done. Just as in Dred Scott, when the country sees what pernicious forces are unleashed by the Citizens United decision as the 2012 election unfolds and the influence of Big Money becomes more apparent, hopefully the Roberts Court will suffer the derision it deserves.

As a Catholic I cannot help thinking that what I call the Court's five-member conservative Opus Dei Catholic caucus that decide CU was in some way powerfully influenced by the Catholic Church's preference -- as a political, not a religious, institution - for hierarchy and paternalism. The Catholic Church has only grudgingly accepted political democracy and then only with conditions and caveats -- preferring to define "liberty" for example as "ordered liberty" which almost always means in the end the freedom of a people to exercise their sovereignty by subordinating themselves to their God and the Church elders who claim to speak in God's name.

And so I do think that at some level our Catholic justices led by Scalia thought they were serving their Church's preference for hierarchy and paternalism in a ruling that gives such obvious advantages to America's elites.

As for what the CU and Bush v. Gore rulings have to say about the respect the Court holds for Rule of Law as a governing principle, one of the most powerful sections of Jeffrey Toobin book "The Nine" talked about how Justice David Souter was so shattered by the Court's desecration in Bush v Gore that he seriously considered resigning.

"His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law," wrote Toobin.

Souter believed Bush v. Gore mocked that tradition. "His colleague's actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore," wrote Toobin.

While Souter eventually decided to stay his attitude toward the Court was never the same. "There were times," says Toobin, "when David Souter thought of Bush v. Gore, and wept."

With the passage of time and with the fading of partisan memories and the self-serving rationalizations that go with them, I've no doubt that Bush v. Gore and Citizens United will join those other abominations of the Court, like Dred Scott v. Sandford, which stand as sobering reminders that, despite its many marble statues, the Supreme Court remains a thoroughly human institution where fragile principles like rule of law are too often a feeble match for human ambition and desire
I'm not a lawyer, so I can't digest all of this easily--but why the heck would the ACLU be in favor of the CU decision? And do you have any thoughts on the current Move On petition campaign to pressure Obama to act on CU?

You’ve brought up a very good point. Everyone was amazed that the ACLU decided to support the CU decision. They are, by definition, an organization advocating for the civil liberties of American citizens (persons).

Someday when the “Inside Citizens United” book is written, we’ll find out how the corporatists managed to get this influential group into their pocket.

As for the petition, it is a very good grassroots initiative. I signed it. MoveOn hopes to receive the support of the Executive Branch on this critical anti-CU initiative.

Obama could gain a lot of points with the populace if he were to act on this issue.