Brennan Center Call On Citizens United

By Big Tent Democrat, Section Supreme Court
Posted on Thu Jan 21, 2010 at 01:42:20 PM EST
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On the call:

Brennan Center Executive Director Michael Waldman, NYU Law Professor and Supreme Court Litigator Burt Neuborne, Brennan Center campaign finance expert Monica Youn, and Heather Gerken, Elections Law Professor at Yale Law School.

First up, Burt Neuborne. The importance of the Citzens United case is that it gives a green light to allow unfettered corporate money into our political system after a century of understanding that this is deleterious not only to our political system but also to our system of commerce. It's gonna change our democracy and make it vulnerable to massive infusions of money. More . . .

Citizens United will also have a deleterious effect on the Court itself. Stare decisis could well be dead as a result.

The other striking thing is the willingness of the Court to treat a corporation as an individual instead of a creation of law for commerce purposes.

Neuborne has hope that the future will belong to us because the Stevens opinion is superior to the Kennedy opinion.

Monica Youn - the Court treated the First Amendment and democracy as in conflict. the First Amendment is about freedom of speech not the freedom to spend as much money as possible.

Youn criticizes the the Kennedy opinion for saying that corporations are "stifled" in our political discourse by these restrictions.

Solutions? Public financing in the short term.

Professor Heather Gerken (here is her post at Balkinization) - Biggest concern - the Court said the Congress has almost no role to regulate. This is a big change, given that Congress had been given at least, theoretically, some level of discretion. Regulating "corruption" for example, is narrowed to express quid pro quos, as opposed to regulating to ADDRESS the potential of corruption.

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Brennan Center Call On Citizens United | 53 comments (53 topical)

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I'm skimming the decision (5.00 / 4) (#1)
by andgarden on Thu Jan 21, 2010 at 01:52:59 PM EST

and the dissent. I actually have problems with both. I think Stevens thinks that the First Amendment means too little, but to my mind it surely doesn't mean what the majority claims it does. The idea that corporations, once created, have the same speech rights as individuals is ridiculous.

My favorite part of the dissent so far:

Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech. [52]
FN 52. [V]oting is not speech in a pure or formal sense, but then again neither is a campaign expenditure; both are nevertheless communicative acts aimed at influencing electoral outcomes.

More from Stevens: (5.00 / 3) (#2)
by andgarden on Thu Jan 21, 2010 at 01:56:37 PM EST

As a matter of original expectations. . .it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy. As a matter of original meaning, it likewise seems baseless--unless one evaluates the First Amendment's "principles," ante, at 1, 48, or its "purpose," ante, at 5 (opinion of ROBERTS, C. J.), at such a high level of generality that the historical understandings of the Amendment cease to be a meaningful constraint on the judicial task. This case sheds a revelatory light on the assumption of some that an impartial judge's application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in the decisional process, than his or her views about sound policy.

Just in case (5.00 / 1) (#3)
by Socraticsilence on Thu Jan 21, 2010 at 01:59:34 PM EST

anyone was wondering how the GOP would respond to Obama's online fundraising juggernaut- here it is- Xe et al can now just cut a check.

If there's any objection to my combing (5.00 / 3) (#4)
by andgarden on Thu Jan 21, 2010 at 02:01:31 PM EST

through the footnotes, please let me know. I find this entertaining.

57. [T]he Free Press Clause might be turned against JUSTICE SCALIA, for two reasons. First, we learn from it that the drafters of the First Amendment did draw distinctions--explicit distinctions--between types of "speakers," or speech outlets or forms. Second, the Court's strongest historical evidence all relates to the Framers' views on the press, see ante, at 37-38; ante, at 4-6 (SCALIA, J., concurring), yet while the Court tries to sweep this evidence into the Free Speech Clause, the Free Press Clause provides a more natural textual home. The text and history highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of "identity" based distinctions might be permissible after all. Once one accepts that much, the intellectual edifice of the majority opinion crumbles.

Better you than me (5.00 / 3) (#10)
by Big Tent Democrat on Thu Jan 21, 2010 at 02:08:15 PM EST

to be honest, I find this area of First Amendment law rather boring and fake.

This is not Consitutional judicial decisionmaking, this is legislative sausage making.


: I think it's interesting largely because (5.00 / 1) (#14)
by andgarden on Thu Jan 21, 2010 at 02:13:31 PM EST

it's totally fake. The Court puts its bones on display.

: Perhaps (none / 0) (#11)
by Maryb2004 on Thu Jan 21, 2010 at 02:10:39 PM EST

you should just read the portion penned by Thomas.

: What about giving shareholders more rights? (none / 0) (#47)
by klassicheart on Thu Jan 21, 2010 at 08:00:26 PM EST

Can this be done vis a vis the SEC? Pension funds, unions, own big shares in corporations as well...so the real question is how do we get corporate boards to be responsive to shareholders? The current situation finds CEO's picking boards friendly to them...independent board members aren't really that independent let alone sufficiently informed. Can we do something strategically that gives shareholders a bigger voice? After all, it is corporate boards that pay CEO's big bucks even when they do not benefit their corporations. Won't we be in the same position regarding political donations?

The fun stuff is always in the footnotes! (5.00 / 2) (#25)
by lambert on Thu Jan 21, 2010 at 03:55:40 PM EST

Please, proceed!


I was wondering if it was worth (none / 0) (#7)
by Maryb2004 on Thu Jan 21, 2010 at 02:04:04 PM EST

my time to read through this tonight. But maybe I'll at least read Stevens' dissent for the entertainment value.


Who needs to read Admin law, anyway? ;-) (5.00 / 1) (#9)
by andgarden on Thu Jan 21, 2010 at 02:05:21 PM EST

(More seriously, I consider this a perfectly legitimate component of my legal education).


: And mine (none / 0) (#20)
by ruffian on Thu Jan 21, 2010 at 03:25:21 PM EST

thanks for pointing out different sections for those of us who would drown trying to read it otherwise.

Scalia's Reponse To This Refutes Himself (none / 0) (#43)
by Dan the Man on Thu Jan 21, 2010 at 06:54:52 PM EST

Scalia's response to this is actually pretty informative. He gives 2 responses:

His 2nd response is lame. It quotes a 1938 decision about "the press", but since we're talking about the "original understanding" of freedom of the press in 1791, that decision and its opinion is irrelevent.

His 1st response is to quote from Noah Websters 1828 dictionary. In that dictionary, it said, "Liberty of the press, in civil policy, is the free right of publishing books, pamphlets, or papers without previous restraint; or the unrestrained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state."

See the important word in that definition? It's publish. What the "freedom of the press" is especially concerned about is the right of individuals to publish what they've created. Not every act of writing is publishing. For example, if I write an e-mail and send it to lots of people, this is not publishing an email. Publishing typically involves an intermediary like Random House or the New York Times.

So freedom of speech does not directly apply to corporations because corporations are not people, but freedom of the press does directly apply to publishing corporations (like Random House or the New York Times) because they publish things created by people and the 1st amendment guarantees the "freedom of the press" i.e. right to publish. So certain corporations (ie the Press) do have more 1st amendment rights than others. So, Antonin Scalia, thank you for convincing me that John Paul Stevens was right!


Because we don't already have enough (5.00 / 4) (#5)
by Anne on Thu Jan 21, 2010 at 02:02:14 PM EST

corporate influence, right?

I so look forward to seeing the candidates attired in clothing adorned with corporate logos - will NASCAR-style jumpsuits for campaigning be next? - and giving pressers in front of similarly-emblazoned backdrops...

Will be interested to know what other consequences could follow from the corporations-are-people decision.

Actually, Anne (5.00 / 8) (#12)
by jbindc on Thu Jan 21, 2010 at 02:11:17 PM EST

I think that's exactly what they should do. Anyone running for office or holding an office should, at all public events and while speaking on the floor or at a press conference, be emblazoned with their corporate sponsors' logos. That way, if Obama, for example is speaking about how big and bad the banksters are and how he's going to put them in their place, he should have on patches of some sort that show that for the 2008 election, Goldman Sachs gave him $994,795, Citigroup gave him $701,920, JP Morgan Chase & Co gave him $695,132,and Morgan Stanley gave him $514,881. Maybe they could all wear color-colded patches to show how big of supporter each contributor really was - like the terror threats. Those mentioned above could be gold, for example, for being 4 of the top 20 contributors.


I wonder if they gave him bigger (5.00 / 1) (#13)
by nycstray on Thu Jan 21, 2010 at 02:13:25 PM EST

bonuses this year?


: In 2012 (none / 0) (#49)
by cal1942 on Thu Jan 21, 2010 at 09:07:28 PM EST

you can bet on it. UNLESS he appears vulnerable.

That actually would be enlightening, (5.00 / 3) (#16)
by Anne on Thu Jan 21, 2010 at 02:45:19 PM EST

wouldn't it?

Hadn't thought of it that way, but you might be onto something!


I love (none / 0) (#45)
by Zorba on Thu Jan 21, 2010 at 07:20:44 PM EST

this idea! Talk about total transparency!


Public Financing? (5.00 / 1) (#6)
by nycstray on Thu Jan 21, 2010 at 02:02:48 PM EST

With Mr Spent a Billion Dollars and Rejected PF to Get Elected in charge? Funny that he is disagreeing with the decision . . . .

: The problem with public financing (5.00 / 1) (#8)
by andgarden on Thu Jan 21, 2010 at 02:04:27 PM EST

is that expenditure caps have previously been held unconstitutional.

: Well, Obama can 'afford' to give (none / 0) (#46)
by FoxholeAtheist on Thu Jan 21, 2010 at 07:58:53 PM EST

the appearance of disagreeing now can't he. Now that's he's elected and his SCOTUS appointee, Sotomayor, has helped enshrine the corporate financing that may insure his re-election.

: A billion dollars is nothing, really,... (none / 0) (#52)
by Realleft on Thu Jan 21, 2010 at 09:41:14 PM EST

compared to what's coming.

So much for respect for ... (5.00 / 1) (#15)
by Demi Moaned on Thu Jan 21, 2010 at 02:22:36 PM EST

the political branches!

the Court said the Congress has almost no role to regulate.

: "Congress shall make no law..." (none / 0) (#37)
by Ben Masel on Thu Jan 21, 2010 at 05:58:56 PM EST

Does my pet goat have 1st amendment rights? (5.00 / 2) (#17)
by Dan the Man on Thu Jan 21, 2010 at 02:49:56 PM EST

Love This Part of Scalia's Opinion
"The lack of a textual exception for speech by corporations cannot be explained on the ground..."
Of course, there are also no textual exceptions for speech by goats. So does my pet goat have first amendment rights also? Otherwise, where's the textual exception?

: Not until it (5.00 / 1) (#18)
by me only on Thu Jan 21, 2010 at 03:09:21 PM EST

incorporates.

: Only if it is (none / 0) (#23)
by Wile ECoyote on Thu Jan 21, 2010 at 03:51:03 PM EST

run through the teleprompter first.

: Wrong animal. Parrots. (none / 0) (#36)
by Ben Masel on Thu Jan 21, 2010 at 05:57:54 PM EST

Pardon my knuckleheadedness... (5.00 / 2) (#19)
by kdog on Thu Jan 21, 2010 at 03:13:49 PM EST

if this question makes no sense...Can congress fix this "road to oligarchy" by passing legislation stating an "individual" must be organic or something? Like, ya know, flesh and blood?

: Half of them sure have no (5.00 / 3) (#21)
by ruffian on Thu Jan 21, 2010 at 03:28:15 PM EST

trouble stating that an 'individual' is a sperm meeting an ovum. Seems like we should be able to bring them on board.

: Corporations are creatures of the States (none / 0) (#38)
by Ben Masel on Thu Jan 21, 2010 at 06:00:36 PM EST

in which they're Chartered.

impeachment (none / 0) (#22)
by klassicheart on Thu Jan 21, 2010 at 03:44:59 PM EST

What about creating some noise on impeachment. This is political, pure and simple...we know who put these people in power and why...despite the failure of too many Democrats to get it...We won't win on impeachment, but why not float the idea...flex some muscle (although never any help from the Obama wimps).

PS: I notice Corrente is on Kindle...BTD has some of the most impressive political analysis around...Why not explore going on Kindle..like Correte. Please check it out.

impeach whom? (none / 0) (#24)
by CST on Thu Jan 21, 2010 at 03:51:28 PM EST

you do realize this is a supreme court decision, not a law passed by congress or the president.

The people who put the supreme court members in power who wrote the majority opinion are long since gone.

Unless you're talking about impeaching supreme court justices - in which case, let's start with Scalia.


Of course, impeach Scalia (5.00 / 2) (#27)
by lambert on Thu Jan 21, 2010 at 03:59:08 PM EST

For Bush v. Gore.


Well, we Dems (none / 0) (#29)
by brodie on Thu Jan 21, 2010 at 04:16:03 PM EST

had our chance to march on the Sup Ct back in 2000, before the decision, to make our views known. Peacefully of course.

But, as I recall, our Fearful Leader at the time, worried about "messy" democracy in the streets, told everyone to stay home and let the legal process work, then after the decision went on teevee to tell everyone that the Court had the final word in our (alleged) Democracy and that was that.

Got to nip the problem in the bud, early, before the cancer spreads ... but Dems seem never to learn this ...


: You are totally correct (none / 0) (#31)
by klassicheart on Thu Jan 21, 2010 at 04:24:59 PM EST

But the environment is different now. Many people see that they have been had. But someone must articulate a strategy and a new framework. This decision is lethal to the Democratic party. We were set up and many of our weak Democratic senators (or Democratic moles)supported these judges. And why is it radical to discuss something like impeachment? Clearly there was no basis for the Clinton impeachment...did that stop Repubicans?
We must get better at political war or we will find ourselves in a deep ditch without having seen it coming. Mass. is a good example of that. And what about Virginia and New Jersey...redistricting anyone?...We need a strategy independent of our so called "leaders." They are weak and self righteous and will take us all down. This decision should be more of a wake up call then even Mass.

I just kind of reflexively (none / 0) (#35)
by Socraticsilence on Thu Jan 21, 2010 at 05:25:47 PM EST

shudder at the thought of impeaching a Supreme Court Justice (the checks and balances part of me is terrified by it) but I think the grounds for Scalia's impeachment would be his conflicts of interests and refusal to recuse on multiple cases (excepting Bush v. Gore because despite the CoI it would have almost certainly have cut both ways though not as closely if Gore had won).


: what if congress increases the number of justices? (none / 0) (#44)
by klassicheart on Thu Jan 21, 2010 at 07:15:10 PM EST

I like Alan Grayson's comment on Olbermann as well.

Sounds like the John Birch Society in '60s (none / 0) (#39)
by Ben Masel on Thu Jan 21, 2010 at 06:04:32 PM EST

"Impeaqch Earl Warren.'

A judicial decision, even wrongly decided, is not in itself a "High Crime or Misdemeanor." Now if you can show that Scalia was pauid for the ruling...


Let's play fair (none / 0) (#42)
by klassicheart on Thu Jan 21, 2010 at 06:42:16 PM EST

You're right. Let's not look unseemly. The Republican house impeached Bill Clinton. They lost in the Senate but they accomplished their job of changing the narrative and distracting the public as to what was really going on in that chamber. And of course, the MSM facilitated all of this. And what about all that time Scalia has spent with Cheney? And wasn't his son working on the legal team for Bush? We don't know the half of it. At any rate, Congress does have power over the Supreme Court. They certainly have power over their budget. I am advocating an activist approach to the Supreme Court....already, many of their opinions are purely political. We must re think our approaches, that is my primary point. And we cannot allow the rules for Republicans to be different than the rules for Democrats.


Guess what? (none / 0) (#54)
by NYShooter on Thu Jan 21, 2010 at 11:35:26 PM EST

Impeachment is not the idealistic fantasy many (including some here) believe it is. And the idea of impeachment (I'm speaking now, specifically, of the 2000 S.C. opinion) was given the imprimatur of legal possibility by a group of experts holding a private seminar I attended a few years ago.

The discussion was held at my brother's house in Palo Alto and included experts, besides my brother (M.I.T, Harvard, Berkeley) scholars from those schools, plus Stanford, Columbia, and, well, you get the idea.

Now, please understand, the subject was , "is there a legal basis for impeachment?" not, "is impeachment feasible, practical, doable, politically possible, etc."

The conclusion, by a large plurality of the participants, was, "Yes," a realistic case could be made for impeachment arising from the 2000 decision.

I won't bore you with the detailed minutia (not that I could if I wanted to; I was just an observer, and a non-lawyer) but the bottom line, and the justification was this: Under the umbrella of "high crimes and misdemeanors," including "treason," they felt that it could be proven that:
a. The SC decision was purely political, and not interpretive of the Constitution.
And,
b. It's goal was to nullify the "will of the people" as expressed by the election.

"A" by itself was too vague, but with the addition of "B" it rose to the level of "high crimes, and...........


: According to Gerald Ford (none / 0) (#55)
by Ben Masel on Fri Jan 22, 2010 at 01:58:46 AM EST

when he was attempting to impeach Justice Abe Fortas...
"Grounds for Impeachment is whatever the a majority of the House of Representatives says it is at a given time."

The bar (none / 0) (#50)
by cal1942 on Thu Jan 21, 2010 at 09:16:09 PM EST

for impeaching federal judges is lower than for a publicly elected official. Well, it's supposed to be lower.

In a very real sense the Clinton impeachment was even lower than the bar for judicial impeachments.


Impeach alito or thomas for starters--go on Kindle (none / 0) (#28)
by klassicheart on Thu Jan 21, 2010 at 04:03:39 PM EST

Obviously impeach some of the members of the Supreme Court....It won't happen...but floating the idea at least gives a semblance of perceiving how to use power... of using the constitution for the very purpose it was designed. Republicans did it in California. Yes, the rules are different on a federal level. Probably an impossible bar....but nothing stops us from using a narrative. Haven't many senaators expressed regret for voting for Roberts and Alito? They lied. They are tools. Use the Constitution...at least float the narrative...Direct the anger in a useful way...Reppublicans had no problem impeaching Bill Clinton. Why are Democrats always powerless? And weak? Why have they been unable or unwilling to understand the concept of power and how to effectively use it...even for a narrative? We are consistently outgunned by Republicans. Of course....having a liberal elite support Obama in a fixed primary battle...sort of underlines the problem. Elites never take action...they just talk...pathetic. There never seems to be an overriding strategy to anything they do...We keep thinking our Democratic elites are smarter than Republicans...I'm not so sure...and certainly wouldn't bet on it. This ruling must be corrected with legislation...or there will be no democracy. And I just can't count on Congress let alone the wimp Obama. We must start creating the narrative. We must start expressing the anger in a directed way.

Impeachment (none / 0) (#30)
by klassicheart on Thu Jan 21, 2010 at 04:18:06 PM EST

Plus, if the roles were reversed, do you think the Republicans would start demanding impeachment of Supreme court judges? This ruling will hurt Democrats dramatically. We must respond dramatically. We must or we will be toast. Howard Dean seems to be one of the few who gets it...the idea of power and how to use it. Will he run for anything? And then we must continue to attack the MSM for pure propaganda. We must pushback. Radical Republican ideas are always characterized as almost mainstream...It is interesting that Republicans have a long term strategic plan. They put Alito, Roberts, Thomas and Scalia on the bench for a purpose...and lo and behold...they find a case to push their agenda. This is long term planning that works regardless of who is occupying the White House. So where is our strategic plan to frustrate this effort? We must first start with a consistent narrative and align it with the populist fury. But we must also plan strategically. Isn't it clear that strategy is completely lacking in this White House? Look at who they put on TV...weak lobbyists... Howard Dean is one of the few with any credibility remaining.

: Don't want to go Musharraf on them? (none / 0) (#40)
by Ben Masel on Thu Jan 21, 2010 at 06:07:08 PM EST

Look at our new Democratic appointment to Sup. Ct (none / 0) (#33)
by klassicheart on Thu Jan 21, 2010 at 04:38:39 PM EST

Is she someone who can go head to head with Scalia?
Absolutely not. And Jeralyn's analysis of her other opinion is excellent. And Breyer is no fighter. Where is our Scalia? I have no confidence Obama will appoint that person. So we must now start voicing our unhappiness to Democrats on this subject as well. I agree with Lambert, let's start with an impeachment campaign against Scalia. Let's start with an investigation.

Bush v. Gore unveiled what was in store (none / 0) (#34)
by klassicheart on Thu Jan 21, 2010 at 04:49:53 PM EST

Souter was disgusted with the Supreme Court. The Bush v. Gore opinion was widely ridiculed by academics and experts. An academic analysis of this opinion is pointless in terms of changing the dynamic in place. We should already know what is really going on. We must examine the alternatives. We should plan a strategy. By the way, when this case was taken by the Supreme Court, most people knew what was coming. But many wanted to be hopeful...Seems a little passive to me.

: Ran into Ted Olson in SF federal courthouse today (none / 0) (#51)
by domer5000 on Thu Jan 21, 2010 at 09:28:35 PM EST

Wished him good luck with his case, a sentiment I would not have suspected myself having until the last year or so

The answer to $ speech is more cheap speech. (none / 0) (#41)
by Ben Masel on Thu Jan 21, 2010 at 06:08:15 PM EST

Demand 200 characters from Twitter.

Does this (none / 0) (#53)
by cal1942 on Thu Jan 21, 2010 at 09:42:54 PM EST

Biggest concern - the Court said the Congress has almost no role to regulate.

mean that Congress can't pass legislation requiring disclosure of a political ad's sponsors; those providing finance.

Corporate-Individual Equivalence (none / 0) (#56)
by bob h on Fri Jan 22, 2010 at 06:20:50 AM EST

The idea that corporations, once created, have the same speech rights as individuals is ridiculous.

Even if you accept the equivalence, why are individuals limited to $2300 or whatever it is, and the corporation has no limits? My non-lawyerly mind says the corporation should have a $2300 limit, as well.