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By Tom Cushing

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Itís Not Your Founding Fathersí First Amendment

Uploaded: Jul 27, 2011

I have always had profound respect for the First Amendment's genius, considering it the most fundamental expression of America's respect for individual freedom. It guards us against every government's worst instinct – to entrench itself by squelching dissent. I fear its role in that regard is in jeopardy – not by traditional censorship, but by drowning.

My treasured bulwark against tyranny has recently been turned on its head to facilitate attempts by private interests to capture the government and hold it by the sheer volume and "harmony" of their voices. While the Supreme Court's recent Citizens United decision consummated the deal, the erosion process began in a judicial footnote over a century ago, and was enabled by another Supreme Court decision in the 1970s.

That footnote appeared in an 1886 railroad case, and conferred "personhood" status on corporations, which were not yet the dominant economic institutions they are today. Thus they could enjoy Constitutional protections originally accorded to living, bleeding Americans. Recognizing the corrupting influence of money in politics, later legislation forbade corporate political contributions, at least in federal elections.

Fast forward to 1976, when the Supremes, in a case challenging the Constitutionality of campaign finance reform legislation, equated donations-to-candidates with the expression of a political opinion. Thus, the First Amendment's protections of individual rights now come into play to constrain government power to limit those "expressions." The yet-more-conservative Roberts Court then recently issued the awful Citizens United decision, largely removing the government's power to limit contributions. That decision opened the floodgates that previously regulated the flow of corporate money to candidates for policy-making positions in government -- governments whose job it is, in part, to regulate those corporations (think: Love Canal, Enron/Madoff/credit default swaps, thalidomide). The inmates have captured the asylum.

So, while "the law, in its majestic equality" also allows the poor and disadvantaged to contribute as they may, whose views, do you suppose, will be heard in the halls of government? It has never been so good to be "in" with the In-crowd – a crowd with nearly unlimited resources, focused narrowly on policies that maximize profits. Only coincidentally do those interests also serve the notion of a broader public interest.

Some see hope in the democratization (small D) of expression by the web on which you're reading this. Others point to the historic inability of the super-rich to get themselves elected (e.g., Forbes, Trump, Whitman, of late). I'm less sanguine, especially when I consider how far to the right the country has already moved in my lifetime, and as I watch purported "liberals" (or dreaded "socialists" in the absurd hyperbole of the day) toady-up to the lords of high finance who will underwrite their next campaigns.

The First Amendment can no longer ensure "a free marketplace of ideas" when those ideas are for sale to the highest, loudest bidder. As Ben Franklin said, We have "a republic – if you can keep it." Tragically, America has largely lost the powerful ally of the First Amendment in our attempts to do so.

Comments

Posted by Rick Pshaw, a resident of Danville,
on Jul 28, 2011 at 9:33 am

Interesting quote: "... how far to the right the country has already moved in my lifetime."

Could you give some examples please? Something along the lines of how it would be impossible for the "right-wing American society" to ever elect a quasi-socialist as President?

Other examples would be most helpful in understanding your statement.


Posted by spcwt, a resident of Danville,
on Jul 28, 2011 at 1:20 pm

This piece is full of so many inaccuracies, why didn't the Danville Express editor do some fact checking before publishing it?

First of all, the Citizens United case did NOT involve the federal ban on corporate campaign contributions, as you assert. What it was about was, during the 2008 Democratic primaries, some nutjobs wanted to broadcast, "Hillary: The Movie," and a federal court said that violated the McCain–Feingold campaign law. They were mad about it, because the courts had no problem allowing Michael Moore's, "Fahrenheit 9/11," to be shown during the 2004 presidential campaign, (a damn good anti-war movie, I might add, that shows what an idiot Bush is. Bush won the election anyway, unfortunately, thanks to all you ignorant Bush supporters).

The court said it's a violation of the 1st Amendment for Congress to prevent any organization (whether it be a corporation, labor union, non-profit org., or whatever) from broadcasting political commercials.

You call the Citizens United case an "awful" opinion by the "yet-more-conservative Roberts Court." Let me get this straight, the Supreme Court EXPANDED the application of the 1st Amendment, extending free speech rights to any organization. How is an expansion of free speech a limitation on the "marketplace of ideas?"

Justice Kennedy, wrote: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

There are other ways to fix our broken electoral system besides tampering with the First Amendment.

My lunch hour is over, so I can't continue. But I hope the Danville Express will work harder to fact check these types of articles.


Posted by Tom Cushing, a resident of Danville,
on Jul 28, 2011 at 2:31 pm

@ Rick: turnabout is fair play.

Here are a few examples off the top of my head, from my early and later life – I don't agree that all the early stuff is perfect or the later stuff bad, but it does demonstrate dramatic changes in the political tenor of the respective times:

Mid-century:

Legislation: Civil Rights Act, Voting Rights Act, Great Society Programs

Court: Brown v Bd of Ed, Griswold v CT (right to privacy), Roe v Wade, Pentagon Papers, Nixon Tapes case, Von's Grocery, Miranda/Escobido/Gideon

Exec Branch: formation of EPA, EEOC, OSHA, etc. Peace Corps.

Tax rates: 90% highest marginal tax rate on earned income

Currently:

Legislation: rollbacks on social programs for elderly, disabled, children, restrictions on abortion, Prop 8, deficit obsession, remarkable level of military spending.

Court: Ledbetter case, WalMart class action case, Citizens United, Kelso (eminent domain), Gore case

Exec Branch: stagnation and lack of attention in agencies like EPA and SEC: to securities fraud, climate change, Endangered Species Act, opposition to state-level initiatives on the environment, "faith-based" initiatives blur church/state boundaries.

Tax rates: Bush tax cuts --> 35% top marginal rate

Let the quibbling begin.

And I gotta say: Obama the "quasi-socialist" is laughably ridiculous. He is a corporatist and a centrist, and much more of a politician than a reformer. That's why The Left is so dismally disappointed with him.

It's also why I think he'll probably be re-elected. I think he'll capture the Great Center of the electorate, only because The Right is likely to repeat their mistake of 1964 and nominate a candidate who is philosophically pure -- and bat-dropping crazy. The Moderates are already holding their noses when they contemplate the direction of the GOP. I think they'll cross over, but obviously it's early, and I'm not taking bets.


Posted by Tom Cushing, a resident of Danville,
on Jul 28, 2011 at 2:55 pm

spc: C-U is important not for its narrow procedural specifics, but for its gross and obvious financial impact on campaign finance law. I stand by what I stated above: it opened the floodgates to corporate money, and mis-used the First Amendment to eviscerate federal campaign finance reform law.

Here's what a few others have had to say about it:

Constitutional Scholar Lawrence Tribe (Hah-vud): [it] marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-ŗ-vis the political branches, or to a genuine concern with adherence to precedent."

"Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people's money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose."

McCain: "there's going to be, over time, a backlash ... when you see the amounts of union and corporate money that's going to go into political campaigns."

Former Justice Sandra Day O'Connor: "In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."

Obama (no slouch on the Constitution, either): [it] "gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates."

"...this ruling strikes at our democracy itself....I can't think of anything more devastating to the public interest."

And in the State of the Union address: "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Also from the wikipedia article on the decision:

"The New York Times stated in an editorial, "The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election."

"Jonathan Alter called it the "most serious threat to American democracy in a generation".

I like the company I'm keeping on this issue.


Posted by Rick Pshaw, a resident of Danville,
on Jul 28, 2011 at 8:53 pm

I guess T-Cush wants freedom of speech only for the folks who are "more equal than others."


Posted by Mike, a resident of Danville,
on Jul 28, 2011 at 9:36 pm

The First Amendment deals with ensuring free speech for every citizen. A corporation is not a citizen but a legal designation. Every citizen within a corporation is guaranteed the right to free speech, but since a corporation is not a person, its free speech rights are not protected.


Posted by spcwt, a resident of Danville,
on Jul 29, 2011 at 8:04 am

Tom,

I agree with your points about the undue influence that the politically connected have on American politics, including corporations, organizations, unions, religions, non-profits, etc.

I also agree with the quotes you posted from President Obama, Justice O'Connor, NYTs, etc. Citizens United does "hand lobbyists a new weapon," "opens the floodgates for special interests," and "removes existing checks on campaign spending," etc.

I agree that the political system is broken and Citizens United probably makes it worse.

I strongly disagree, however, that the solution to this political mess is to start placing limits on political speech. Find another way to fix the problem.

Freedom of speech, especially political speech, is the cornerstone of the 1st Amendment. We shouldn't allow Congress to diminish that right, even for a "good" cause without thoroughly exhausting other remedies.

Mike's point about "corporations not having rights" is a joke. As the Supreme Court said in the Citizens United opinion, "There is no way to distinguish between media and other corporations, and these restrictions would allow Congress to suppress political speech in newspapers, books, television, and blogs..."

My point to you Tom is, if you want to be taken seriously as a columnist, you should do your homework—YOURSELF.

You obviously have never read the Citizen's United case itself or probably even a summary about the case. You also didn't merely misstate its "narrow procedural specifics" as you claim. You didn't get the facts right. You said, "Citizens United decision, largely remov[ed] the government's power to limit contributions." In fact, Citizens United had nothing to do with contributions but was about whether Congress had the power to limit corporations and other organizations from broadcasting political commercials.

And then, instead of admitting you made a mistake, you tried to hide behind other people's opinions, like some schoolkid saying, "Hey, all these smart people got the right answer, so my answer must be right too." If you make a mistake, admit it and move on. Better yet, get the facts right in the first place.


Posted by Tom Cushing, a resident of Danville,
on Jul 29, 2011 at 8:14 am

@ Rick -- the "folks" who are now "more equal than others" are institutions with means, not people.

To be fair, Citizens United also opened the door for unions and non-profits -- although unions are shadows of their former selves as economic powerhouses, and although a few non-profits are huge, as a group they do not approach the economic power of for-profit corporations.

As to what I want -- given the influencing/corrupting power of campaign donations (pols tend to dance with them that brung 'em), I would like to see donations limited to living, breathing, bleeding homo sapiens, and I would like to see limits on totals by individuals, too. There's a certain equality in that, no?


Posted by Tom Cushing, a resident of Danville,
on Jul 29, 2011 at 9:41 am

@ Mike: there are some ways it makes sense for a corporation to be treated like a person -- it should be able to own property, sue and be sued, etc. But at the end of the day, they are financial vehicles -- a way to reorganize money and do stuff for private economic benefit. In so doing, they get certain advantage over individuals, like so-called "limited liability" of their owners for the debts of the company. They've been hugely successful economic engines, and hooray for that.

Giving them political rights, however, is a very different thing. They can't vote (yet ;-) ) for instance, but now they can, In Effect, contribute to campaigns for election quite easily. I think that's hazardous to the health of the body politic, given their narrow interests, vast resources and the fact that it's part of the government's job to regulate some of their baser instincts.

A similar thing may be said about unlimited contributions from individuals on either side of the philosophical aisle. Transparency is one answer -- we should get to know where the money comes from, at least. Another is actual limits on any one person's contributions, which I also think is healthy.

Surely no system would be air-tight -- "money is the mother's milk of politics" as Jesse Unruh famously said (I think -- no doubt 'spc' will correct me if I'm miss-attributing), so it's a perpetual game of whack-a-mole -- but I think we're better off if we play it.


Posted by Rick Pshaw, a resident of Danville,
on Jul 29, 2011 at 10:38 am

Yeh, those mean old capitalistic corporations. They shouldn't have any say in how they are taxed and what silly bureaucratic hoops they have to jump through. Let's get rid of their power! While we're at it, let's prohibit rich folks from donating any money to political campaigns. They are corrupt, too.

Let's just make a law saying that only Labor Unions can make donations to political campaigns. Then we will REALLY see something.

Sheeesh,,,


Posted by cardinal, a resident of Diablo,
on Jul 29, 2011 at 11:19 am

With apologies to B-Witched:

"Ricky, you're wrong alla time, you're so wrong you blow my mind,
hey Ricky, (huff huff), hey Ricky

Hey Ricky!
You've been around all night and that's a little long,
You think you've got the right but I think you've got it wrong,
Why can't you say goodnight so you can go on home, Ricky..."Web Link


Posted by Tom Cushing, a resident of Danville,
on Jul 29, 2011 at 4:17 pm

@spc: it was what you guys call harmless error, if any error at all -- I don't intend to reread the case to debate with you over that point when you've already acknowledged that you agree that there's a problem, and C-U "probably makes it worse." But if I ever write for the Law Review, I'll want you to be my editor.

I'd also take issue with your "hiding" point -- a debate over the precise holding of that case is utterly beside the point. The blog post is about C-U's implications for the electoral process, and so were those quotes I supplied.

As to tampering with political speech, the Republic survived many years without the Supreme Court equating money with speech in the 1977 Buckley case. I think they were wrong to do so; the concepts are different, and that decision opened the door that the Roberts Court blundered through in C-U. I hope and expect that line of case law will be overturned one day.

You know, the best lawyers I know don't just say "No," they propose alternatives. Mine is campaign finance reform.

What's yours?


Posted by Tom Cushing, a resident of Danville,
on Jul 29, 2011 at 4:23 pm

@ Rick: without resorting to lyrical parody, I gotta say that you seem much more interested in spewing invective than you are in discussing the actual blog. Your recent post has sweet nothing to do with the article, and there's not a lot more to say about it.


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