ACLU Wins! And destroys the political process in the U.S.

[clear eye]

I guess this is a particularly apt topic for election day, though not a happy one.

SCOTUS is expected to announce this week that it has ruled in favor of Citizens United in the case of Citizens United v. Federal Election Commission. The decision will overturn a section of the law passed in 2002 specifically prohibiting corporations and unions from spending money from their treasuries to electioneer during certain periods before primaries and elections. It also sets a precedent to overturn or reinterpret parts of other laws going all the way back to 1907 that limit corporate financial participation in election campaigns.

On July 9th of this year, the ACLU posted on its website that it had filed an amicus brief in support of Citizens United in that case. http://www.aclu.org/free-speech/citizens-united-v-federal-election-commission

According to the post:
"Section 203 of the Bipartisan Campaign Reform Act of 2002 prohibits unions and corporations (both for-profit and non-profit) from engaging in 'electioneering communications...The ACLU has consistently taken the position that section 203 is facially unconstitutional under the First Amendment because it permits the suppression of core political speech, and our amicus brief takes that position again."

The case had originally come before the court as a narrow issue of whether or not a particular cable video, Hillary: The Movie, was electioneering. At the time of its production, Clinton was the Democratic frontrunner.

According to the Bennan Center for Justice here's what happened next.

Background on the Case

In the lead-up to the 2008 presidential election, Citizens United, a non-profit corporation, produced a 90-minute documentary entitled Hillary: The Movie. The film criticized Hillary Clinton at a time when she was the top contender in the Presidential Democratic primary. Citizens United intended to show the film by purchasing airtime to run the video using video-on-demand technology.

Section 203 of the 2002 Bipartisan Campaign Reform Act (popularly known as "McCain-Feingold") prohibits corporations from using their general treasury funds to fund "electioneering communications" in the 30 days before a primary and the 60 days before a general election. "Electioneering communications" are defined as broadcast advertisements that clearly identify a candidate for federal office and target a significant portion of the relevant electorate. Citizens United filed an as-applied challenge against Section 203 seeking declaratory and injunctive relief holding that Hillary: The Movie could not be constitutionally classified as an electioneering communication.

On June 29, 2009, rather than issuing a decision in the case, the Supreme Court ordered additional argument and directed parties to file supplemental briefs addressing the question of whether, to resolve this case, it is necessary to overturn either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which upheld a regulation on corporate treasury fund spending in Michigan state elections, and the part of McConnell v. Federal Election Commission (FEC), 540 U.S. 93 (2003), which upheld the "electioneering communications" section of BCRA, 2 U.S.C. § 441b.

SCOTUS, rather than rule on the narrow issue of whether or not Hillary: The Movie was an "electioneering communication", in effect gave the plantiffs (the corporate group "Citizens United" ) extra time to prepare a broader argument on corporate campaign contributions in general, and a heads up on which precedents might be problematic and have to be answered for them to prevail. The ACLU filed its amicus brief in time to help Citizens United prepare and argue the larger issue.

According to Cenk in his Sep. 9th show, this action of SCOTUS was almost unheard of and "pure judicial activism".

Last week after the likely disposition became known, Sen. Feingold spoke on the Senate floor about the devastating ramifications, calling the decision "a wholesale uprooting of the principles which have governed our elections for so long".

Common Cause points out in yesterday's press release that the expected broadly-based decision

that corporations and unions have a constitutional right to unlimited "political speech" (i.e., spending) would lead to subsequent challenges to the federal ban on corporate and union political spending in effect since 1947, the federal ban on corporate and union campaign contributions in effect since 1907, and similar laws in more than 20 states. A narrower ruling would continue the path toward deregulation, albeit on a slower pace, but still have the effect of allowing more corporate and union money into the system and encouraging more direct challenges to remaining regulations in the future.

In a report on their website, Common Cause also notes that

If the Supreme Court lifts the ban on using corporate profits for political spending, corporations would likely spend vastly more than labor unions. During the 2008 election cycle, corporations outspent organized labor 4:1 on political action committee (PAC) contributions, but 61:1 on lobbying.

(emphasis mine)

In plain and simple language, if you think our elected officials are already too beholden to corporations and too dismissive of the needs of the public in general, you can't overestimate how much worse it can get. The input of individuals will be utterly drowned out.

The rationale for allowing "free speech" for corporations, and which has been floating around for years, is that corporations are "persons" under the Constitution, and as such have a right to political discourse as absolute as humans have. Most academic Constitutional scholars think that's a stretch to put it mildly. I pointed out in one of the first entries I posted to my DU journal that the logical extension of that would be to let them vote. The fact that they don't have this privilege to me indicates that deep-down no one actually believes this absurd assertion. The other glaring argument against giving corporations "free speech" is that the humans composing the corporation can't by law speak freely when representing the corporation. They are constrained to speech which advances corporate financial interests because of their legal obligation to shareholders, no matter their personal beliefs on the issue or candidate under discussion.

As Common Cause points out, the only remedy is to institute, quickly, some form of publicly financed campaigns for all federal elections. Since Congress would have enact a law to bring this about, time and money are against us. More on this soon.

Thank you so much, ACLU.

[ddeclue]

1. Oh FUCK!

:nuke:

[enlightenment]

2. Buh bye, representative democracy.

sigh.

[Auggie]

3. If this could expedite publicly financed elections it would be a good thing

But can it?

[clear eye]

5. Let's put it this way--

I haven't seen an outpouring of the members of both Houses of Congress onto their respective floors demanding it.

My guess is that it's a longshot. And it's definitely up to us.

[Phoebe Loosinhouse]

9. It will do exactly the opposite.

Now they can literally bury any candidate or office holder who opposes them. Take this in conjunction with the court case which said that there is no obligation to report the truth and you have a perfect recipe for the facism that is to come.

[Auggie]

21. I totally agree the possibility is there

[rhett o rick]

40. Strange thinking. If this is soo terrible that mite be good because then it would lead to

goodness trying to fix this badness? This wont lead to public financed elections. CorpAmerica will spend billions to stifle public financed elections.

[tekisui]

4. It seems the ACLU is most concerned about limitations on

political speech. The limitation is on both non-profit and for-profit corporations.

Should non-profit organizations be barred from political campaigning?

[rhett o rick]

8. There should be limits on everyone for political campaigning. Otherwise, money equals freedom. nt

[Sinti]

17. "money equals freedom" - It does now. At least they'd be being honest n/t

[rhett o rick]

30. This will make it worse not better. nt

[clear eye]

12. The ruling made no distinction.

The major fallout will be contributions from the for-profit sector.

I wasn't the one who lumped them together in the suit, or didn't distinguish them in the ruling.

[anigbrowl]

14. +1. That first amendment is a tricky beast.

I actually consider this a good thing, since the alternative is to channel the money into PACs behind the scenes. I'd rather see corporate political speech labeled as what it is. If MegaCorp is saying I should vote for some conservative candidate, then I want to see them identified as MegaCorp, not hidden behind some front like 'Visionaries for America' which is what happened now.

In short, I'm for it as it can make politics more transparent.

[clear eye]

18. Non-profits are already barred from much political activity if they wish to retain the status.

They can't endorse specific candidates, for instance. It's a small trade-off for retaining the influence of individuals in the political process.

The ACLU plainly stated that it opposed every aspect of Sec. 203 of the 2002 Election Reform Act. It endorses for-profit corporations being given "free speech" in the form of unlimited financial input, as much as it does allowing non-profits to wade in. If you don't believe me, call them. Their ph. # is 212-549-2500.

I had a long discussion about this issue w/ the incoming chair around 2 yrs ago.

[JackRiddler]

47. "Non profits" should be forced to disclose all donors, for starters.

Since so many of them are fronts for Exxon or Scaife or Soros or some other collection of rich bastards. That should apply to all limited liability entities engaging in political speech, without exception.

And they should be subject to intense limits on campaign spending, just like people.

[Go2Peace]

51. Simply put, YES! Then instead of an "organization" we campaign as "individuals of a group" with MORE

POWER.

The current structure is a workaround. It appears powerful because it is the only power we have against corporate money.

But we would be far better off if we outlawed it ALL.

We could still work together and form grassroots but our power would come from our individual unity and approaching the government together instead of through our money. It would be far superiour and much more democratic.

[clear eye]

54. Agreed. n/t

[rhett o rick]

6. K & R. This is so disappointing for the ACLU to stand up for CorpAmerica vs. John Q. Public. nt

[Tesha]

13. You understand that many of the organizations we so love are also "corporations", right?

Most lobbying groups, on all sides of the issues, are also "corporations".
It ain't just Exxon, folks.

Tesha

[clear eye]

23. So you think getting the "right" for Common Cause to make campaign contributions

while also allowing unlimited donations by Exxon-Mobil increases citizens' political expression? Not that it grossly exxagerates the ability of a few citizens to influence the outcome of elections and the resulting tenor of gov't, as opposed to the effective speech of the vast majority?

Non-profits do their work quite well w/o being able to donate to campaigns or endorse candidates. We send them money to lobby. They can let us know where candidates stand so we know to whom to contribute. Are you actually equating the ability of, say, Common Cause to contribute w/ say, Exxon-Mobil?

[Occulus]

25. The false doctrine of corporate personhood should be abolished nonetheless.

We need to address that. This particular case is peripheral to that central issue.

I would like to see the personhood of all corporations revoked. No exceptions. It's simply too much power to allow friend or foe to possess.

[Tesha]

32. That can be equally true, of course. (NT)

[rhett o rick]

28. And your point is??? Do you believe corporations should be allowed to buy elections? nt

[Tesha]

31. I thought my point was clear.

If you don't our side to also be gagged, you will support the ACLU's position.

Tesha

[rhett o rick]

33. My side is humans not corporations, not lobbyists. Dont gag humans only corporations. nt

[Tesha]

35. You don't seem to understand the facts of the situation. (NT)

[rhett o rick]

38. Fact: If the fascist leaning SCOTUS rules as expected, that will mean that the more money one has

the more "free speech" they can buy. They will literally buy elections. Now tell me how I dont understand.

[Go2Peace]

49. Democracy is completely undermined by the current setup.

Even though non-profits and NGOs have been good to us, they are simply a work around and they simply cannot overcome the power of corporate money.

The only way to re-establish democracy is to make it so our government is accountable only to individuals and influenced by individuals.

Corporate heads are individuals, but having paid staff that can increase their influence should be outlawed. Same goes for "our" groups.

Think about it. We lose the megaphone of these groups. But the power of many people petitioning their government together will become the most powerful force.

[BBG]

16. Disappointed in defending the First Amendment?

You're obviously confused if you thought the ACLU stance was for corporate America. The ACLU stance was for the first amendment and free speech. Perhaps you might look up a famous quote about disagreeing with what is said but defending the right to say it. ACLU actually defends the rights of all to free speech, not just your favorite.

[clear eye]

24. In your mind, barring a corporation from buying elections is denying a person free speech? n/t

[rhett o rick]

41. Well put. nt

[rhett o rick]

27. I am obviously confused? What a nice way to start a dialog.

I believe in the Constitution and free speech. I dont believe that money should allow people to have more "free speech" than the rest of us. Corporations are not humans, and in my humble "confused" opinion, the Constitution was written for humans for the express purpose of protecting us from corporations.

Every one of our freedoms have limits and regulations, where "We the people" decide on just how free we need to be. Judge Roberts is a fascist and the ACLU are supporting him in his quest to enslave us.

I have no problem with the ACLU defending all humans free speech, but corporations ARE NOT HUMANS, they dont have consciences.

[clear eye]

53. And, by law, corporations are not allowed to have consciences.

If something the management of a corporation does, even for reasons of morality, can be shown to have lowered its profit, the shareholders can take action against the management. They can vote their shares at the next annual meeting to replace them, or in theory even sue them. (I can only imagine that last happening when you're talking about a few shareholders total, as in a family-controlled corporation.)

And that's only one bit of the problem w/ claiming civil liberties for a corporation.

[Go2Peace]

50. corporations do not have "personal liberties". That errant idea could take down our country

We have been sold on it, but why should anyone or anything other than individual people have rights?

[Why Syzygy]

7. So, now it's OFFICIAL!

Coke or Pepsi people? Damn traitors.

We now have definitive grounds for Revolution. Taxation w/o representation. BY LAW!

[rhett o rick]

10. Coke and Pepsi are a couple of the worst offenders of CorpAmerica. nt

[AndyHammond1970]

11. need for immediate move: Constitutional amendment to ...

...revoke and remove corporate personhood. It's past time that we make sure constitutional rights are available but only to natural born people.

[Why Syzygy]

15. Damn straight.

Even better revert to the laws that gave corporations LIMITED rights to incorporate. They must PROVE their business is in the public interest and RENEW every five years. Bastids.

[rhett o rick]

29. I second that. nt

[anonymous171]

45. Agree 100%nt

[Go2Peace]

52. +1

[Odin2005]

19. WTF?

:wtf:

[The Backlash Cometh]

20. The ACLU is a whore. Anyone can take it for a ride.

Here's how you beat this thing: As far as comparing money to speech, (which is the argument for protecting campaign money based on first amendment rights) money should be recognized as quantitative speech, and thus, creates inequities. For one thing, it creates more than one class of individual because not everyone is given equal access. This is a breach of the Fourteenth Amendment. It's like allowing someone access to the backroom which is forbidden to others; like giving a privileged few megaphones, while everyone else gets drowned out.

If someone wants to use that kind of money to have more rights than the average individual, then, it should be demanded that they should front the costs for everyone else to get the same access.

This should be the ACLU's argument, if it really gave a damn about protecting our rights.

[clear eye]

26. Nice reasoning.

I like. How 'bout making that suggestion to Common Cause?

[The Backlash Cometh]

34. This is what freaks me out so much.

I am probably the most pedestrian person you will ever meet. You wouldn't give me a second look if you passed me on a sidewalk. So when someone thinks my comments are in any way original, what it tells me is that the people whose job it is to defend these arguments, are not trying hard enough.

Anyone who thinks it will do any good is welcome to cut and paste my comment from the original post, and send it to Common Cause or any other group they think can help.

[clear eye]

43. You underrate yourself.

Most groups working for the common good are underfunded and can't afford top legal minds. Those folks, as hard as they may try, aren't as smart as you. Heck, I didn't come up w/ it and I've been thinking about this issue now and again ever since SCOTUS decided that money was speech. Of course I studied biology, not poli sci, and am trying to catch up to a lot of people on DU. But there are only a few others on this board--policy wonks w/ steel trap minds--who come up w/ stuff at your level. BTW, most geniuses, unlike Einstein, look quite ordinary.

I could just copy your post and send it off, but I'd really prefer to see what comes of you hashing out the possibilities w/ someone working on the issue from the Brennan Center for Justice at NYU School of Law. They filed an AMICI CURIAE IN SUPPORT OF APPELLEE.

Here's their contact info:

MONICA YOUN
Counsel of Record
LAURA MACCLEERY
ANGELA MIGALLY
CIARA TORRES-SPELLISCY
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
161 Ave. of the Americas, 12th Fl.
New York, New York 10013
[phone]
[e-mail]
Attorneys for Amici Curiae

Perhaps you can email Ms. Youn and see where it goes from there?

[rhett o rick]

39. How does Common Cause stand on this issue? nt

[clear eye]

46. They're making an unprecedented effort to publicize the likely detrimental effects

it will have on responsive, representative government. They've taken the unprecedented step of writing both a report for their website, and a press release before the ruling is even official, in an effort to organize around a possible antidote before it's too late.

Don't see how they could be more opposed to the imminent decision.

[Nikki Stone1]

22. Corporations are more equal than people

:(

[Luminous Animal]

36. Apparently, no one here actually read the brief.

Which advocated for a narrow ruling.

[clear eye]

37. No, it doesn't. I read it.

It makes a narrow argument saying it is limiting the scope of the brief, but does not advocate the Court make a narrow ruling. To the contrary, it suggests that the Court may want to go further than striking down Sec. 203 and also strike down Austin v. Michigan Chamber of Commerce, which underpins the constitutionality of almost all extant regulations over corporate funding of campaigns.

"Accordingly, the Court should strike down § 203 as facially unconstitutional and overrule that portion of McConnell that holds otherwise. This brief addresses only that question. It does not address the additional question raised by this Court’s reargument order: namely, whether Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), should be overruled. However, if Austin is overruled and the ban on express advocacy by corporations and unions is struck down, then the ban on “electioneering communications” in § 203 would necessarily fall as a consequence. Even if Austin is not overruled, § 203 is unconstitutional..."

The ACLU was saying that it was only going to play a small part in the suit, but implied that it was in sympathy w/ the plaintiff's broader arguments.

[Luminous Animal]

42. What part of "This brief addresses only that question,"

do you not understand?

It does not imply anything else. It is stipulating the fact that it's brief would be moot in regards to § 203 if Austin v Michigan Chamber of Commerce were overruled.

If they ACLU was in sympathy with the broader argument, it would have supported that argument rather than declining to address it.

[clear eye]

48. The ACLU was not the appellant.

They didn't have to argue the whole case. Where do see them suggesting that there would be adequate dispensation of the issue by ruling only on the regulation in their brief?

Besides, the ACLU even in its brief's limited scope, was arguing not the narrow issues like whether that particular regulation was overly vague or burdensome, or in some other way poorly defined, but the broader issue of money from corporations in campaigns as free speech. Any ruling on that basis would be generally considered a broad ruling.

[Ozymanithrax]

44. Publicly financed elecitons will only happen via constitutional ammendment...

Freedom of speech will trump every attempt to limit the screams of money.