Sunday, January 31, 2010

Shark on Dead Tree

I have a column on Citizens United in this morning's Milwaukee Journal Sentinel.

Taking the other side, Noah Domnitz wants to argue the the decision was "judicial activism" because it overruled existing precedent and restricted the application of long standing laws prohibiting the spending of corporate treasury money on elections. (I say "restricted" because, after Citizens United, corporations still can't use treasury funds for contributions or coordinated expenditures.)

I disagree. Mr. Domnitz does not define "judicial activism" but seems to equate it with departure from precedent and overturning laws.

This oversimplifies the concept. Judicial restraint suggests that precedent and long standing arrangements ought to be respected, but not that they can never be revisited. It counsels respect for legislative enactments but to allow clearly unconstitutional laws to stand is its own form of activism - a failure to apply what - in our system - is the supreme law of the land.

The majority in Citizens United was well aware of the issues raised by its decision to overrule certain prior decisions and invalidate what was left of the "blackout" provisions of McCain-Feingold. The key case that Citizens United overturned - Austin v. Michigan Chamber of Commerce - is a 1990 decision that has figured in only a few subsequent decisions of the Court. Both Justice Kennedy's majority opinion and Chief Justice Roberts' concurrence go to some lengths to explain that Austin is inconsistent with other decisions of the Court and has not proved to be workable in the intervening years. (As I point out in my column, the ideas that restricting expenditures on speech restricts speech and that corporations have speech rights are hardly new.) Because Austin has figured in relatively few other cases, the majority reasoned, there is no substantial reliance interest cautioning against a change in the law.

Citizens United also invalidated parts of the McCain-Feingold (passed in 2002) and part of the Court's decision in McConnell v. FEC, decided in 2003 and already substantially undercut by Wisconsin Right to Life v. FEC (2007). Both flow from its decision to abandon Austin.

None of the justices have ever said that judicial restraint requires inflexible adherence to precedent. There are reasons to abandon prior cases that were in error and have proved unworkable and inconsistent with other doctrine. The majority carefully considered those reasons and decided that overruling Austin was justified.

To think otherwise, would be to say that, for example, Brown v. Board of Education was an "activist" decision. There are some who think this, but I don't. In my view, Plessy was the decision in which principles of judicial restraint were abandoned. The Court ignored the clear implications of the Fourteenth Amendment in order to avoid disrupting the racial regime in the South. The problem is that, in enacting the Fourteenth Amendment, the people of the United States made it quite clear that regime was to be disrupted - in fact, to be destroyed. The majority ignored that law in order to impose what they (incorrectly) thought was a rule ("separate but equal") that would better serve social peace.

Cross posted at the Marquette University Law School Faculty Blog

30 comments:

Anonymous said...

The touch stone of Judicial restraint has always been conformity to "original intent"; are the framers' intentions mirrored by the decision in question?

Did the Framers intend protection of "political speech" to be absolute? If they did, then bribery must be protected; it is frank political speech. But there's no evidence that the Framers regarded bribery as protected speech. Quite the opposite.

If money is speech, then it is also arguably a kind of pornographic speech, which is speech that CAN be restricted.

sean s.

George Mitchell said...

Rick's column is excellent. His separate whack-a-mole analysis completely captures the inherent inability (and documented failure) of campaign finance "reform" to achieve the results advertised for it.

The partial clean-up that will result from Citizens United will not eradicate the whack-a-mole syndrome. Full and frequent disclosure of campaign contributions on the internet and repeal of contribution and spending limits will produce transperancy and allow voters to decide who's bankrolling whom. Even with that there will be protected speech that does not include express advocacy and therefore is likely to not be subject to full disclosure.

Sean's observation regarding bribery can be added to the laughable collection of soundbites being offered by those who oppose the court's decision.

Anonymous said...

George, I'm glad I could make you laugh. Of course, I conclude your laughter is more the nervous kind, because you don't have a rational response to my criticism.

sean s.

jp said...

Anon;

"A genuine freedom to speak cannot be limited to the right to stand on the corner and holler at passersby. It takes money to use the Internet, print pamphlets, publish books or broadcast ads."

The world has changed and the Framers intent has not been violated.

Anonymous said...

jp.

I agree with the first sentence of the quote you began with. And it does take money to use the internet, but not unlimited amounts. But corporate donations are not required for anything you listed. Especially not corporate donations. Especially not from companies owned or managed by foreign interests. These are not only unnecessary, but a threat to national security.

The internet is relatively cheap, it is nearly free. The huge cash donations that occur now are far in excess of what is needed, not to mention far in excess of what is wise.

Printed pamphlets are nearly as cheap as the internet, but increasingly obsolete, too. It does take bigger money to publish books, but most successful politicians never publish one anyway.

As for broadcast ads, they are expensive, but are they actually necessary? And being so expensive, independent candidates often cannot afford them; they are the ones left to “stand on the corner and holler at passersby”. To the voter, are broadcast ads even helpful? When these ads lie (like Gableman’s did) who speaks the truth on an equal footing? There are better, and cheaper, alternatives that are fair to incumbents and challengers alike.

Restricting political campaign donations to small amounts by actual flesh-and-blood donors will not prevent effective campaigning by political challengers, but it will go a long way toward preventing political corruption, which the Framers did not support. How much money did Washington raise in his first campaign?

“The world has changed …” you say. In deed. But the need to restrict corrupting and dishonest speech has not changed. There is no evidence the Framers wanted to protect anything remotely like the corrupt political process we have now.

Free speech? Yes.
Raucous, rowdy, even rude speech? Yes.
Bribery? Corruption? Influence peddling by foreigners? No. The First Amendment does not protect those.

sean s.

Dad29 said...

Bribery requires two elements: a specific objective of the bribe and willing taker(s). If you consider 'money given to politicians' to be "bribes" then you have a lot of provin' to do, son.

You're out of high school now, so apply Analysis 201.

John Foust said...

Doesn't Black's define it as "The offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties." Who was it who said "for bribes blind the clear-sighted and upset the pleas of those who are in the right"? I thought Dad29 was all about opposing the Party In Gummint and the Boyzzz For Hire and the spread of rent-seeking adjustments to regulation. How exactly are corporations accomplishing friendly changes to the law? Just through speech? It has nothing to do with campaign contributions? Nothing to do with bill-mills? Nothing to do with schmiergeld? Nothing to do with free luncheons for newspaper columnists? Pay-to-play starts at about $100 for a shrimp-and-drinks meet-and-greet.

Anonymous said...

Corporations were never intended to be a political promotion arm of the government or it would be written in the laws regulating them.

It is absurd to think that the government intended to provide all the privileges and protections to incorporate and to charter unions, sort of a partnership with government to allow these entity to spend its savings and protections on promoting political agendas.

This clearly gives entities a huge advantage over the citizens of this country.

George Mitchell said...

Anonymous appears to be unaware that corporations may contribute under state law in states that include about 60% of the American population. Where that is the case the evidence does not suggest a "huge advantage."

Anonymous also purports to know what government "intends," etc. That is irrelevant. The question is what does the Constitution provide. What is "absurd," to use his/her term, is the idea that McCain-Feingold was fully consistent with the Constitution.

Sean wants a "rational" response to his notion that Citizens United somehow legitimizes "Bribery" and "Corruption." Not possible.

Anonymous said...

Dad29;

I am willing to accept your narrow, formalistic definition of “bribery” in exchange for a narrow, formalistic definition of “speech”. If one can be defined broadly, so should the other. As jp said; things have changed; modern bribery is different from the old style, now it’s corrupt payment for future delivery of services.

George,

Citizen’s United does not legitimize bribery and corruption, that was already done long ago. Citizen’s United legitimizes bribery by corporations and foreign interests; it throws more gasoline on the bonfire. Not what we need; making a bad situation worse.

sean s.

George Mitchell said...

Interestingly, Sean's ramblings are not just the goofy comments of an isolated individual. Lots of comments on Citizens United depart completely from what the Constitution does and does not say and instead reflect a view about what is "right." The Supreme Court's job is not to decide what is right. It is to interpret the Constitution. The notion that political spending and contribution can be equated to bribery is both loopy and more widespread than one would hope.

Anonymous said...

George,

There is no mention of bribery at all in the Constitution, nor need it be to be prohibited and punished. Freedom of expression has never been regarded as absolute or unlimited. Just ask Larry Flynt.

sean s.

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

Hmmm. Wonder what was deleted. Curiosity ...

sean s.

Anonymous said...

George said:
"The question is what does the Constitution provide."

George wants to rewrite the preamble from "we the people" to "we the entities".

George, I find your arguments very disappointing from what I have seen from you before.

Anonymous said...

Anonymous at 9:39

I don't know what George wants, I only know that his arguments (and those of Citizens United) do imply that corporations are people, with all the rights of people; which is absurd. People have the right to vote. Do corporations? Should they?

sean s.

George Mitchell said...

Corporations and unions — and other organizations of people — are directly affected by the actions of elected officials. The Supreme Court has ruled that they have free speech rights which they may use to respond and to petition the government for action. There is nothing new here; many states allow corporate political activity. I favor no limits, period, along with full and frequent disclosure of contributions. The alternative is the whack-a-mole hodgepodge of laws described by Rick that has evolved since Watergate. It's a joke. Pick up a copy of the Wisconsin election law and administrative rules and tell me (a) you understand it and (b) you agree with it.

Rick Esenberg said...

Bribery is not simply expressive conduct. It is an illegal agreement. It would be no more entitled to first amendment protection than fraud.

What was deleted was a pitch for some secret way to get rich in the stock market.

To allow corporations to vote would be to allow multiple voting and, therefore, violate the principle of "one person, one vote." There have, however, been some special purpose elections not subject to that requirement in which corporations have been allowed to vote.

sean s. said...

George,

THE PEOPLE WHO MAKE UP corporations, unions, and other organizations are directly affected by the actions of elected officials. These organizations (a general term for all the above) are affected only to the extent that the people who make them up are affected. But these persons already have free speech rights which they may use to respond and to petition the government for action. In that sense Citizens United is unnecessary.

Organizations are composed of people, but organizations are not themselves people and do not need or have rights beyond the rights of their constituent members to protect their members interests. If organizations as organizations have the same rights as people, then shouldn’t they also have the right to vote?

You may be correct that “many states allow corporate political activity.” No surprise; political corruption is not new. Citizens United just makes it that much worse, and opens the door to participation by foreigners. In that sense, Citizens United has created a new, serious problem.

I don’t dispute that election laws are a mess; they are a mess because the same people who hold their hands out for the money are the people that wrote the code. Surprise! Surprise! They left themselves a lot of loopholes. Opening the floodgates to additional corruption will not fix that problem. This mess was not created by banning corporate money, so allowing corporate money won’t help. In this sense, Citizens United doesn’t even address the problem.

I don’t dispute that election laws (in Wisconsin and elsewhere) are a mess, but THERE IS AN ALTERNATIVE: simplify the code and tighten up the limits on donations. If we really need these donations, they need to be limited to amounts where almost everybody can play equally. Politicians oppose simplified laws because they make it harder to take bribes; they oppose draconian limits because then the money dries up, and they and their advisers like the money.

sean s.

sean s. said...

Rick,

Findlaw defines bribery as “the offer or acceptance of anything of value in exchange for influence on a government/public official or employee. Bribes can take the form of gifts or payments of money in exchange for favorable treatment, such as awards of government contracts. In most situations, both the person offering the bribe and the person accepting can be charged with bribery.” << http://criminal.findlaw.com/crimes/a-z/bribery.html >>

Encyclopedia Britannica defines it as “the act of promising, giving, receiving, or agreeing to receive money or some other item of value with the corrupt aim of influencing a public official in the discharge of his official duties. When money has been offered or promised in exchange for a corrupt act, the official involved need not actually accomplish that act for the offense of bribery to be complete.” << http://www.britannica.com/EBchecked/topic/79186/bribery >>

West’s Encyclopedia of American law defines it as “the offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of an official in the discharge of his or her public or legal duties.” << http://www.answers.com/topic/bribery >>

Offer, acceptance, influence of official duties, corrupt acts; campaign donations (especially very large ones) fulfill the substance of bribery; at best one can argue formally, that some technicality distinguishes campaign donations from bribery; a missing jot or tittle, but even that is strained. It is well known that substantial donations are payment for unspecified future services; the politician damn well better take the donor’s call when it comes. Some might pretend that’s not what’s going on, but as Justice Field put it: “[We] cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges [or students of the law] what we see as men.” 12 Fed. Cas. 252, 255 [C.C.D. Cal. 1879]

You may dispute this, but the perception is widespread and reasonable; of lobbyists working the system, greasing their way with money. It’s bribery, updated for the modern age, but still bribery. If the agreement is not illegal it’s because the very persons who need to make it illegal are the ones who are taking the bribes.

sean s.

George Mitchell said...

Sean: "If organizations as organizations have the same rights as people, then shouldn’t they also have the right to vote?"

The Supreme Court did not say corporations have the "same" rights as people. More specifically, no one credibly suggests they have the "right" to vote.

Sean: "THERE IS AN ALTERNATIVE: simplify the code and tighten up the limits on donations."

Every effort in the last 3+ decades to "simplify" and "tighten up the code" has failed. Further, those who would have to do it are, in your opinion, corrupt. So, who would do it? Judges legislating from the bench?

Sean: "If the agreement is not illegal it’s because the very persons who need to make it illegal are the ones who are taking the bribes."

In the end, your point of view allows no room for an actual "alternative" to the system, before or after Citizens United.

sean s. said...

George,

If organizations as organizations don’t have the same rights as people, then Citizens United makes no sense at all; saying that organizations as organizations have interests affected by political decisions, and therefore a right AS ORGANIZATIONS to give money to politicians. The Supreme Court may not have said in so many words that organizations have the rights of flesh and blood people, but that is the logic they used.

Every half-hearted effort to tighten the code has been predicated on the assumption that somehow people can give politicians big money and not corrupt them if they have to disclose it; this premise is nonsense. In fact, there has been very little substantive effort to simplify the code or tighten the limits on donations. There’s been a lot of talk about fixing the system, but no real effort. These things haven’t failed because they haven’t been tried sincerely.

Who needs to force these changes? Voters need to force their legislators into in, but since the courts are pouring even more money into the present system, that will be difficult. I have no illusions about the obstacles. It won’t be easy, but it’s the only alternative. As Churchill said once, “you may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.” Dropping all donation limits (as you have suggested) will just make the same system even more corrupt.

sean s.

sean s. said...

Another take:

Murray Hill Incorporated is Running for Congress
<< http://www.youtube.com/watch?v=HHRKkXtxDRA >>

sean s.

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