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UNDERNEWS

Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of ten of America's presidencies and who has edited alternative journals since 1964. The Review, which has been on the web since 1995, is now published from Freeport, Maine. We get over 5 million article visits a year. See prorev.com for full contents of our site

January 21, 2010

JUSTICE STEVENS' DISSENT

From the dissent [written by Justice Stevens]:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. . .

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. . .The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress' most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well

The Framers took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even "the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,"given that "at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign."

President Roosevelt, in his 1905 annual message to Congress, declared: "'All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.'". . .

It is an interesting question "who" is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation's electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one's autonomy, dignity, or political equality has been impinged upon in the least. . .

When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders "'call the tune'" and a reduced "'willingness of voters to take part in democratic governance . . .'"

The majority's unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations' "war chests" and their special "advantages" in the legal realm. . .may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, "provides a simple way to channel rents to only those who have paid their dues, as it were.". . .

The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.


6 Comments:

Anonymous Anonymous said...

What have they wrought????? Surely our congress will move to negate this wrong. Oh, they too have been bought and paid for!!!

January 22, 2010 7:33 PM  
Blogger Michael said...

We're screwed. This Congress is incapable of resisting this outrage. And within 15 years - hell - within 8 years - nearly every elected official above the level of town dog catcher, will be bought and paid for by corporate interests. And then the laws will change accordingly - to reflect Corporate interests first and foemost. This is the dictionary definition of fascism. And that is precisely where we are headed. The Republicans stacked the Supreme Court with ideologues - and it's starting to "pay off" for them.

January 23, 2010 12:33 PM  
Anonymous Axel in Montreal said...

I despair.

January 23, 2010 3:40 PM  
Anonymous Anonymous said...

The one thing that will trump the deep pockets of Wall Street is the vote. We need to use the tools of this website to education our friends and communities to DEMAND THAT CONGRESS AMEND THE CONSTITUTION and override this decision. This is the wake-up call that can light the fire to take back our democracy and election campaign reform. LET'S DO IT!

January 23, 2010 6:34 PM  
Anonymous Anonymous said...

Citizens, like myself, who are shocked by the recent SCOTUS "Citizens United" decision and who have supported the AMERICAN CIVIL LIBERTIES UNION in the past may wish to reconsider that support in light of the fact that they filed an amicus brief with the court that supported the majority position. They also challenged a Vermont attempt at campaign reform in 2003. Enough!
Tony Vodvarka

January 24, 2010 9:10 AM  
Anonymous Anonymous said...

If you don't like what the corporation says, then don't buy their products. 50M people not buying $100 worth of goods would reduce corp. revenues by $5B

January 30, 2010 9:47 PM  

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