Tag Archives: Supreme Court

The Second Amendment and Tyranny

16 Jan

Tyranny is defined generally as oppressive, absolute power vested in a single ruler. The United States cannot, by definition, be tyrannical because it is a representative democracy where you have the right to overthrow any person or party every two, four, or six years – depending on the office. Your recourse is political action and being enfranchised to vote, organize, and petition. 

When the 2nd Amendment was drafted, the United States did not have a standing army – because of our experience with our British oppressors, America was decidedly hostile to the idea of a standing army.  As a result, our new nation depended on amateur on-call militias; Switzerland still uses this model wherein only 5% of its military is made up of professionals, while the militia and reserves are made up of able-bodied men aged 19 up to their 30s and 40s.  Because these people are members of a reserve militia, they keep and own their own military equipment. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. 

But we long ago reconfigured our domestic military structure to switch from state-based reserve militias into a professional national military. To the extent the old state militias exist, they’re made up of the various National Guards. We don’t call upon average citizens to keep arms to fight off the Indians or the British; we have the Pentagon. 

If you look at the two recent Supreme Court cases which held that the “well-regulated militia” language, which was so carefully inserted into the 2nd Amendment of the Constitution, doesn’t really mean anything. Astonishing, that, but little can be done about it. In DC v. Heller , the Court affirmed an individual right to possess a firearm without respect to whether the bearer is a militia member, and that these arms can only be possessed for lawful purposes, such as self-defense. 

Heller also confirmed that your 2nd Amendment rights are not absolute or unlimited. Concealed weapons can be banned by states, you can limit their possession by felons and the mentally ill, and you can ban carrying a weapon in certain areas and regulate the sale of weapons. Particularly dangerous and unusual weapons can also be regulated or banned.  Although Heller applied only to federal districts, a subsequent case – McDonald v. Chicago – held that the 14th Amendment ensures that the 2nd Amendment and its jurisprudence also apply to state action. 

Because handguns aren’t unusual, and the petitioner in Heller intended to keep a handgun in his home for personal protection, his use was lawful and DC was ordered to issue him a permit, and could not require him to keep the gun essentially unusable while being kept. 

Nothing that happened yesterday in Albany is violative of the 2nd Amendment. The 2nd Amendment is silent on the number of rounds a clip can hold, and bans on certain types of weapons have been consistently upheld. If you have to re-register to drive a car every few years, you can re-register to own a gun. How do we monitor felonies or mental illness with lifetime permitting? 

But I want to pivot back to something – tyranny. How many people have you heard in the past month since the Sandy Hook massacre explain that assault weapons and other militaria must be legal because we have some sort of right to fight tyranny. How many people have suggested to you, with an astonishing ignorance of history of propriety, that, e.g., German Jews could have halted the Holocaust if only they had been armed. 

Make no mistake, notwithstanding Jefferson’s tree of liberty, there is no law, statute, or Constitutional provision that exists in this country to allow someone to fight domestic “tyranny”. What these people are saying is that they detest the government – especially Obama’s government, because he is Kenyan or an usurper or a Nazi or a communist or a “king” or maybe just because he’s brown-skinned. At which point do we determine as a society when we have made the flip to “tyranny”? Who is the arbiter of “tyranny”? At which point do we determine that all of our anti-treason statutes and the constitutional provision found in Article III, section 3 of the Constitution can be set aside because of “tyranny”? 

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

You have no right to possess militaria to fend off “tyranny”. If you think you do, show me the statute or law that says so. Show me the statute or law that repeals our anti-treason legislation. It doesn’t exist. 

If New York wants to ban assault weapons or clips holding more than 10 bullets, it can. If you don’t like it, get your tea party buddies together and elect a legislature in Albany that will repeal it.  But there’s not a thing in the world that suggests that you can, if you don’t like it, take up arms against Albany or Washington. That would be a crime. If you try it and you’re armed, law enforcement won’t like that. Not at all. 

 

Things for Thursday

3 Jan

A few things I found online in the last few days: 

1. Remember a few weeks ago, when NRA CEO and infamous goon Wayne LaPierre blamed everything but guns on the massacre of teachers and first graders at the Sandy Hook Elementary School in Newtown, CT? LaPierre didn’t just stumble on being a hateful lunatic – this is something that is apparently part of his job qualifications. Back in 1995, after the Oklahoma City bombing perpetrated by WNY native Timothy McVeigh, LaPierre said things so horrible and conscious-shocking that former President George H.W. Bush publicly rebuked him and resigned his NRA membership. Bush wrote, 

I was outraged when, even in the wake of the Oklahoma City tragedy, Mr. Wayne LaPierre, executive vice president of N.R.A., defended his attack on federal agents as “jack-booted thugs.” To attack Secret Service agents or A.T.F. people or any government law enforcement people as “wearing Nazi bucket helmets and black storm trooper uniforms” wanting to “attack law abiding citizens” is a vicious slander on good people.

Al Whicher, who served on my [ United States Secret Service ] detail when I was Vice President and President, was killed in Oklahoma City. He was no Nazi. He was a kind man, a loving parent, a man dedicated to serving his country — and serve it well he did.

In 1993, I attended the wake for A.T.F. agent Steve Willis, another dedicated officer who did his duty. I can assure you that this honorable man, killed by weird cultists, was no Nazi.

We can have a debate and discussion about guns, gun rights, and limitations on both – but calling people Nazis isn’t part of it. 

2. When it came to slavery, Thomas Jefferson was kind of a jerk. He was kind to some (especially if there were rapes to be had), and particularly cruel to others. He was happy to take out mortgages against his slaves, to have them flogged, and even refused to carry out a request contained in Polish General Kosciusco’s will, wherein money was set aside for Jefferson to buy out and free his slaves.  

The critical turning point in Jefferson’s thinking may well have come in 1792. As Jefferson was counting up the agricultural profits and losses of his plantation in a letter to President Washington that year, it occurred to him that there was a phenomenon he had perceived at Monticello but never actually measured. He proceeded to calculate it in a barely legible, scribbled note in the middle of a page, enclosed in brackets. What Jefferson set out clearly for the first time was that he was making a 4 percent profit every year on the birth of black children. The enslaved were yielding him a bonanza, a perpetual human dividend at compound interest. Jefferson wrote, “I allow nothing for losses by death, but, on the contrary, shall presently take credit four per cent. per annum, for their increase over and above keeping up their own numbers.” His plantation was producing inexhaustible human assets. The percentage was predictable.

In another communication from the early 1790s, Jefferson takes the 4 percent formula further and quite bluntly advances the notion that slavery presented an investment strategy for the future. He writes that an acquaintance who had suffered financial reverses “should have been invested in negroes.” He advises that if the friend’s family had any cash left, “every farthing of it [should be] laid out in land and negroes, which besides a present support bring a silent profit of from 5. to 10. per cent in

this country by the increase in their value.”

The irony is that Jefferson sent his 4 percent formula to George Washington, who freed his slaves, precisely because slavery had made human beings into money, like “Cattle in the market,” and this disgusted him. Yet Jefferson was right, prescient, about the investment value of slaves. A startling statistic emerged in the 1970s, when economists taking a hardheaded look at slavery found that on the eve of the Civil War, enslaved black people, in the aggregate, formed the second most valuable capital asset in the United States. David Brion Davis sums up their findings: “In 1860, the value of Southern slaves was about three times the amount invested in manufacturing or railroads nationwide.” The only asset more valuable than the black people was the land itself. The formula Jefferson had stumbled upon became the engine not only of Monticello but of the entire slaveholding South and the Northern industries, shippers, banks, insurers and investors who weighed risk against returns and bet on slavery. The words Jefferson used—“their increase”—became magic words.

Jefferson’s 4 percent theorem threatens the comforting notion that he had no real awareness of what he was doing, that he was “stuck” with or “trapped” in slavery, an obsolete, unprofitable, burdensome legacy. The date of Jefferson’s calculation aligns with the waning of his emancipationist fervor. Jefferson began to back away from antislavery just around the time he computed the silent profit of the “peculiar institution.”

And this world was crueler than we have been led to believe. A letter has recently come to light describing how Monticello’s young black boys, “the small ones,” age 10, 11 or 12, were whipped to get them to work in Jefferson’s nail factory, whose profits paid the mansion’s grocery bills.

Much of the information in this Smithsonian story has been carefully excised from our Jefferson hagiography because 150 years later, we still can’t come to terms as a country with our history of slavery and racial animus and discrimination. 

3. Just because you employ someone doesn’t mean you have the right to inject your own opinions on their healthcare decisions. Hobby Lobby, which has two outlets in western New York, has gone to the Supreme Court to seek injunctive relief so that it would not have to provide health insurance coverage for contraception for its employees under Obamacare. Why their employees’ sex lives are any of Hobby Lobby’s business is a mystery for sure, but Obamacare doesn’t force Hobby Lobby to hand out the morning after pill with every paycheck – it merely requires the health insurers to offer contraceptive coverage. Aside from the fact that the employees affected work for Hobby Lobby, the company has no further mandate set upon it. If it doesn’t agree with contraception, it is free to hold that belief, but should not be free to impose it on its employees, or to have its employees’ rights become less than those of workers elsewhere. Justice Sotomayor rejected Hobby Lobby’s request for injunctive relief. As a shopper for crafty things and toys for grownups, you may choose to use this information to direct your hobby dollars accordingly. 

 

Obamacare: The Mandate And the Taxing Power

29 Jun

Oftentimes, the federal government finds itself wanting to promote a certain behavior as part of a national program, but without the direct power to do so. By way of example, in the 1980s, the Reagan Administration decided that it wanted the drinking age to be raised from 18 to 21 nationwide. But the drinking age isn’t a federal, but a state statute. In order to persuade states to raise the drinking age, the federal government passed an incentive plan. If a state failed to raise its drinking age to 21, it would find itself with a diminution in federal highway funding. 

“The power to tax involves the power to destroy”, wrote Chief Justice John Marshall in 1819. With respect to the Affordable Care Act, or “Obamacare”, the power to tax also involves the power to build something. Under the law, beginning in 2014, Congress will require most Americans to obtain health insurance, or – if you don’t, you pay a fine to the government. The mandate was, ironically, a precondition set by the insurance industry, without which they would not be able to economically justify offering insurance to people with pre-existing conditions at no penalty.

The key part of Chief Justice Roberts’ opinion yesterday reviewed the constitutional justification for that mandate to purchase health insurance.  Congress’ powers are specifically limited and enumerated in Article 1 of the Constitution. 

Roberts turned first to the Commerce Clause (Article 1, Section 8), whereby Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  Roberts rejected the argument that the government could regulate the absence of commerce; you cannot regulate that which does not exist.  His analysis seems somewhat limited, however. After all, there is not a personal alive who isn’t engaged in the health care market now, or inevitably. Even if you’re not seeking medical care, you’re paying for others’. 

Right now, you and I (and everybody) are taxed to help pay for uninsured people’s emergency room visits. ERs can’t turn people away, and oftentimes the poor and uninsured use them for primary care.  Those hospitals seek reimbursement for the cost of providing those services through two Federal Programs, Disproportionate Share Hospital (DSH) and Upper Payment Limit (UPL)–that require a 50% local share match. So…instead of forcing the cost of health care provision onto the people who don’t have insurance, you (a taxpayer, or a person with insurance) are paying for them to get health care with both your federal and county tax dollars. 

Secondly, Roberts turned briefly to the “Necessary and Proper” Clause, also in Article 1, Section 8, it reads, “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  Roberts declined to go along with this, reasoning that…

Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released…[t]he individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.

And so, the last resort – the “in the alternative” argument – was most persuasive to the 5 members of the Court who voted to maintain the ACA mandate. The very first Congressional power enumerated at Article 1, section 8 involves the power to tax and spend. Roberts wrote that Congress’ mandate isn’t the issue – it’s the “penalty” imposed on people who refuse to purchase insurance. While the dissent argued that the government is semantically blocked from calling the “penalty” a “tax”, Roberts argued that the word “penalty” assumes some sort of fine for illegality. Yet the refusal to purchase insurance isn’t illegal – it isn’t a crime. It is merely a choice, and a person’s choice to opt to pay a tax instead of buying insurance is one that government can regulate under its taxing power. 

…the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product…

…None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry

Because Roberts invoked the taxing power, dumber pundits and lazy politicians have pivoted to calling it all – the whole law – a “huge tax”.  Perhaps they should read the law, and then read the Court’s opinion. It’s not a “huge tax”. It’s a mandate that you have health insurance. Chances are, you already have it – it’s not like you’re being forced to buy super-more health insurance on top of what you may already have. And if you don’t have it, you’ll have much easier and cheaper access to health insurance. And if you choose not to have any at all, then you’ll be assessed a fine, a tax, whatever you want to call it. 

The ACA’s “shared responsibility payment”  is a tax only on people who choose not to hold insurance. Anyone who says otherwise is ignorant, mistaken, and/or lying. 

With the mandate in place, no longer will the person without health care get away with not paying hospital bills, and no longer will taxpayers be “mandated” to subsidize those choices. Instead, the person making the choice to avoid insuring himself will be assessed a tax in the eventuality that he becomes ill and can’t afford to pay his bill. Do you want the person without health care to be taxed, or do you want to continue to be taxed because they don’t have health care?

In the olden days, “personal responsibility” was a conservative talking point.  Now, we’re essentially codifying it through Obamacare – you’re responsible to get coverage, or for the consequences if you don’t. Now? 

The remaining portions of the decision dealt with (a) the Court’s analysis of whether the issue was ripe for decision (it is); (b) whether striking the mandate meant invalidating the whole law (they didn’t have to reach it); and (c) a provision dealing with the expansion of Medicaid, holding that States can reject federal funding and therefore not comply with the new rules. 

The misinformation and disinformation being spread over the last 24 hours has been simply mind-blowing. For instance, here’s a fundraising email that Republican congressional candidate Chris Collins (who, incidentally, never, ever has to worry about not being able to afford anything, ever, including health care) sent yesterday: 

Dear friend,

The Supreme Court has confirmed what we already knew – ObamaCare is nothing more than a massive tax increase that will hurt hardworking families and continue to act as a wet blanket on economic growth and job creation.

Today, I’m asking for your donation of $27 dollars to protect the residents of the 27th Congressional District from this massive tax hike and help end ObamaCare.

I need your help to stop Kathy Hochul and Barack Obama from raising taxes on thousands of Western New York and Finger Lakes families. 

$27. 

$27 is how we can protect our families in the 27th Congressional District from massive tax increases.

When I go to Congress, my first order of business will be to lead the fight to repeal ObamaCare and replace it with common sense solutions that protect seniors and don’t crush small businesses and cost us jobs.

$27 can get us there.

Whether it’s $27, or $5, $10, $50 or $100 – anything you can do to help us stop Barack Obama and Kathy Hochul from raising taxes and cutting Medicare by $500 billion is so important.  Will you consider donating today?

There’s so much at stake, and I need your help.

Sincerely,

CHRIS COLLINS

Congressional Candidate, NY-27

No, it’s not one side or another that won or lost – everybody won. Everybody will benefit from the implementation of Obamacare. It isn’t at all a huge tax increase, and the only reason Medicare funding goes down is because the ACA picks up the slack. Obamacare isn’t a “huge tax increase”, indeed it will help families by reducing the most common type of bankruptcy – ones brought about through medical expenses. Is this law a boon to insurers? Yes. That’s why many progressives didn’t like it much, and that’s why the law is something of a Frankenstein’s monster. But Obamacare, like its progenitor, Romneycare, is a fundamentally conservative idea. Because it’s been adopted by a Democratic President whom the Republicans are determined to ruin, it is now characterized as something it’s not. 

And make no mistake – the Republican drive to ruin Obama is so concentrated and driven, that it doesn’t matter what collateral damage there is to average Americans, or the economy. 

It’s not surprising to see a politician lie, but when mere puffery, (“I’m the best”), turns into brazen lying, (“I poop rainbows and spit unicorns”), you have to wonder what the politician thinks of the people who are going to vote for him. I heard some of our right-wing omniphobe media personalities liken the United States under the ACA to North Korea. There was heavy emphasis on “Hussein” yesterday, because “Hussein” is a foreign, Muslim name, and because somehow that correlates with socialism. Or something. I wish I was a professional psychologist so I could better analyze what was taking place.  Even Mitt Romney noted that the Court didn’t hold that Obamacare was a “good policy”. That’s jaw-droppingly dumb – Palin dumb. 

Requiring Americans to buy private health insurance from private corporations is socialist? Spreading the risk across most Americans so that health insurers can’t refuse to insure people with pre-existing conditions is like living in a Stalinist dictatorship with no market, no freedom, no food, no money, closed borders, and extensive gulags? How dumb. Almost as dumb as the many people who took to Twitter to decry the loss of America’s freedom and announce that they’d move to Canada, which has true single-payer socialized medicine. 

Set aside the crazies and the liars – Americans won today. The ACA – Obamacare – isn’t a perfect solution. No solution is perfect, after all. But it will make our health insurance in this country more affordable, with better coverage, and no longer will you live at the mercy of health insurance companies, fearing arbitrary rate hikes, lifetime payout maximums, or being barred from buying insurance due to a pre-existing condition if you change your job. This is good for people

Federal Clinic

27 Mar

HT Marquil at EmpireWire.com

Senate Republicans Excoriate Thurgood Marshall

30 Jun

Fascinating day in the Elena Kagan confirmation hearing yesterday. I don’t quite get why Republican Senators are busy trying to demonize long-deceased Justice Thurgood Marshall, but there ya go.

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Contemporary Republicans love activist judges when they’re activist in favor of corporate interests over the rights of the individual.

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First they Came for the WASPs

18 May

I think I’ve put my finger on at least part of the reason why the right wing – both establishment and tea party – has gone completely insane.

In the olden days, government was a restricted club favoring white men whose last names don’t end in vowels. Ethnics were, for the most part, to be governed – not to govern.

Well, that’s not altogether true.

Names like “Scalia” and “Alito” are ok, because they’re conservative ethnics. They play on the same team as the WASP elites, and support the same things. It’s when you have names like “Sotomayor” or “Kagan“, well then all hell breaks loose. The former was accused of being a La Raza anti-white bigoted socialist klan-esque terrorist. The latter is accused of being an anti-gun socialist inexperienced lesbian Jew.

Buchanan’s channeling of Julius Streicher aside, this piece from a paper owned by Scottish Australian (since we’re keeping track) Rupert Murdoch, is astonishing in its pathetic WASP nostalgia.

In old-money enclaves like Palm Beach, Fla., Nantucket, Mass., and Greenwich, Conn., WASPs are being priced out of their waterfront estates and displaced on their nonprofit boards by Jewish, Catholic and other non-Protestant entrepreneurs.

The United States has always been a heterogeneous country – hardly a “nation” in the truest definition of that word, but a conglomeration of nations within one state who have consented to live together under a new governmental construct. Not for nothing Serbs and Croats lived side-by-side in Queens while their countrymen fought each other bitterly back home in the 90s.

And while people like to denigrate “political correctness”, it has become politically incorrect for the WASP establishment that ran this country to attack the nouveau powerful for their ethnicity. And that’s objectively a good thing. New York in particular has only ethnics running for Governor. Levy, Cuomo, Lazio, Paladino – that fact is something that Americans should embrace, not bemoan. That this country has attracted people from around the world to escape ancient hatreds and get ahead on merit rather than heritage may no longer be unique (see Canada, Australia) but was revolutionary.

The conservatives want to “conserve” the vestiges of WASP lordships in business and politics, but that’s a fight that’s long been lost.

Obama and Alito

29 Jan

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The Supreme Court is a co-equal branch of government. It is not a delicate menagerie of ultra-fragile prices and princesses who are above the law, above reproach, above criticism, above anything.

The Court majority’s recent decision in Citizens United may be constitutionally valid, but that doesn’t make it right or good. As Obama quite correctly pointed out, that holding will result in unlimited corporate political advocacy without restriction on time, money, or message. Yet corporations don’t have the vote, and their personhood is a convenient legal fiction and nothing more.

For Obama to have criticized the decision as bad for our political system is perfectly valid. The notion that the delicate Court is above criticism at the hands of a President is as ridiculous as suggesting that the Congress is above criticism or discussion in that venue. Every time a Republican President stood up at a State of the Union address and criticized Roe v. Wade, that was the same damn thing, and no one batted an eye.

Because it’s perfectly valid for the chief executive to criticize the judiciary, and vice-versa.

By the same token, it’s no secret that the Court has become supremely politicized in the last few decades. I find nothing wrong with Justice Alito shaking his head or mouthing something back at Obama. Hell, let them stand and cheer if they want to. Decorum for decorum’s sake is stupid, and we should stop playing make-believe.

SCOTUS Follow-Up

22 Jan

Back in September, when the case was being argued, I wrote a piece on the corporate citizen-hood/free speech suit appearing before the Supreme Court. At the time, I advocated for free speech to be upheld, and it was yesterday, by the predictable 5-4 vote. Now the hand-wringing about the evils of irresponsibile corporations has begun anew. Alan is conflicted about whether its good or bad. Others are less generous, and seem to believe 2012 was reality TV. But don’t worry – the world is not ending, and this decision is more narrow than the hand wringers admit.

First, the principle. Corporations, for-profit and non-profit, special interest and business related, big and small, are just groups of people who get together for a similar purpose. Why those people should lose their collective right to free speech once they join that group is not at all clear. The specifics of this case are important: the FEC regulated a blatantly political movie 30 days out from an election, because it was political speech. If that political speech can be restricted, what else? Corporations produce books on political topics, and corporations produce “news programs” on political topics. At the moment, Newscorp (FOX) and GE (MSNBC) get their opinion out, but few others.

Second, the reality. First, and most importantly, his ruling DOES NOT ALLOW UNRESITRICTED DONATIONS TO POLTICIANS, no matter what opinion you may read to the contrary. It allows corporations to run as many TV ads as they want within 30 days of an election. Up until now, politicians and parties could only run ads during that time. Since special interests could, and can still, donate unlimited soft money to the parties, they still had the ability to advertise, but only when using the pass through. The main difference this decision may make? The “Paid for” byline at the bottom of the ads will change from DNC to Your Friendly Neighborhood Energy Companies or CSEA.

The second reality issue is that corporate money is better spent many other ways. If I am a large evil corporation that wishes to influence policy, my money is better spent lobbying a specific senator on a specific committee, rather than television advertising. This does not open the flood gates to corporate and union money in politics. Its already there, and being spent more effectively on K-street lobbying firms. 

Which leads us to the final point. Chris Smith uses yesterday’s ruling as an opportunity to advance his cause of publicly funded elections. Its a campaign that is as earnest as it is misguided and impractical. The goal itself is laudable: politicians uncorrupted by monetary influences would presumably create better policy. The best argument for this is the current presence of money and absence of statesmanlike thought. But disenfranchisement and limiting free speech are not the way to achieve this. Our free public square discourse has devolved into a shouting match. But allowing no one to speak (or everyone to whisper) is worse. There is an illiberal reflex of liberals, when confronted with choices they do not approve of (SUVs, suburbs, skipping healthcare insurance, political ads, etc), to seek to limit the choice options to only acceptable alternatives. A state funded election system creates an echo chamber and feedback loop. Money is the outside, non-governmental influence. It may be corrupting, but it is also freeing. I want outsiders, non-government groups influencing my politicians. The alternative is a self-perpetuating system moved beyond the reach of the American public to change it.

Free Speech at the Supreme Court

9 Sep

Obama’s speech tonight in front of Congress is important. But all I seem to do lately is write about Obama, so I’m going to dive into a bigger news event that happened today: the debate over corporate personhood and free speech at the Supreme Court today.

Before you groan and move on, if you are an activist, community organizer, or volunteer, hear me out and you may be surprised which side you end up on. The ACLU and NRA are on the same side on this one – that should tell you something.

The case in question involves Citizens United, a right-wing non-profit corporation that produced a mockumentary called “Hillary: The Movie,” just in time for the last election cycle. Because the subject of the movie was so obviously political, the Federal Election Commission determined it was political speech, and thus subject to campaign finance laws. Thus, it could not be shown, distributed, or aired near election time. Citizens United sued, saying they are unfairly blocked from distributing their product – thus where we are now.

Because campaign finance laws can be complicated and interesting only to John McCain, most news media outlets have not adequately covered this story. What coverage there has been has been nearly entirely hyperbolic, jumping straight to dire predictions of evil corporations destroying our democracy. For a move evenhanded overall analysis, I would recommend the Lehrer News Hour from today (not yet loaded as I write this). Or for a totally biased opinion from Ted Olson, who argued the case for Citizens United in front of the Supreme Court today, go here.

What little attention has been paid to this case has revolved around the unusual nature of the hearing today: it is a do-over the Court asked for, so it could consider a larger question. When the case was originally heard, it focused on narrow technical questions of whether the McCain-Feingold laws allowed web streaming of the movie. However, the Court asked the lawyers to reargue the case focusing on whether campaign finance laws should be applying at all. Thus the breathless cries of corporate dominance, in a world with no regulation and rampant bribery and scandal, and the reversal of 102 years of precedent.

Let’s consider a couple relevant facts before I tell you why free speech should be upheld here:

1) The laws the Supreme Court is looking at striking down are very narrow – indirect funding during a campaign. Corporate limits on direct funding of candidates would still apply. The question is not whether Ford can give $12 million to John Dingle (D-MI) to run for reelection. They still can’t. It’s whether Friends of the Earth can run ads 25 days before the election talking about how bad Rep. Dingle is to the environment.

2) Twenty-three (23!) states already allow corporations to spend unlimited amounts of indirect (soft) money 30 days out of an election in state and local races. There is no proof that those 23 states have any worse corruption than the other 27 states. Those 23 include well run states (Virginia) and poorly run states (California). The campaign finance laws seem independent of competence.

3) The precedent is not nearly as clear as many would argue. Congress did start regulating corporate donations to political campaigns in 1907. However, these laws were never really tested against the court until 1990 and 2003. Two cases in the last 19 years is hardly a large body of work, and McCain-Feingold is less than a decade old. Reversing some of its provisions would not be a great upset.

In my opinion, the Supreme Court should strike down large portions of McCain-Feingold, including these limits on corporate contributions. The Court has established as precedent that money is speech, because it takes money to be heard on our crowded airwaves and internets. Therefore, corporations should be treated as individuals (known as corporate personhood, by the wonks). Whatever limits we put constitutionally on individuals, should apply to corporations as well.

Why? Because corporations are nothing more than groups like-minded individuals. It is a legal framework that allows groups of people, with free speech rights, to better organize to achieve an objective. That objective may be to pump natural gas (Halliburton) or sell cars (Basil Ford) or do the Dems research dirty work (Brookings Institution). Whatever it is, as long as they pay taxes (i.e. are not a 501(c)(3) tax exempt corporation – different rules there), they are not allowed the same rights. As Chief Justice John Roberts pointed out today, why can ten individuals give $1000 each, and a partnership (LLP) of 10 individuals give $10,000, but a corporation can give nothing? Why should I surrender my right to free speech when I join a group? While Exxon may want to give money to Drill, Baby, Drill, other advocacy groups exist solely for the purpose of having their voice politically heard. Thus the ACLU and NRA on the same side.

But what of the naivety argument? That free speech sounds great, but giving corporations free rein will utterly distort the political process? I would argue that if you are worried about money influencing politics, there are bigger fish to fry. If I am Exxon, and want to drill, is it better to spend $8 million on advertising, with a small rate of return, or $8 million on lobbying the exact Senator on the exact committee I need to pass a bill. Likewise, some corporations are currently allowed political speech under different guises. Why can News Corp (Sean Hannity) or Disney (ABC) or General Electric (Rachel Maddow) have their blatant political speech heard, but not others? What about books on political subject matter? Most books are published by corporations – can Random House publish a new Keith Olbermann book within 30 days of an election? I don’t think we want to start regulating this kind of speech.

Corporations are just groups of persons. Regulate them under the same laws as the people who make them up.