Saturday, July 5, 2014

Uncontrolled Money in Our Political System: Great for Few, Not Most

Back to the Marble Palace: Where it all started in 2010
(Citizens United: Jan 2010 and a 5-4)

Happy 4th Birthday
(To Hell with Disclosure and Transparency)

"Why, 'cause we say so." /s/ the USSC
(Shut up, sit down, comply. Corporations are people. They have a voice like you ...)

Major Update (and revised post) (July 5, 2014). The original post follows this update.

Corporate personhood is an American legal concept that a corporation may be recognized as an individual in the eyes of the law. This doctrine forms the basis for legal recognition that corporations, as groups of people, may hold and exercise certain rights under the common law and the U.S. Constitution. For example, corporations may contract with other parties and sue or be sued in court in the same way as natural persons or unincorporated associations of persons. The doctrine does not hold that corporations are flesh and blood “people” apart from their shareholders, executives, and managers, nor does it grant to corporations all of the rights of citizens.

Since at least Trustees of Dartmouth College v. Woodward – 17 U.S. 518 (1819), the U.S. Supreme Court recognized corporations as having the same rights as natural persons to contract and to enforce contracts. In Santa Clara County v. Southern Pacific Railroad – 118 U.S. 394 (1886), the court reporter, Bancroft Davis, noted in the head note to the opinion that the Chief Justice Morrison Waite began oral argument by stating, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

While the head note is not part of the Court's opinion and thus not precedent, two years later, in Pembina Consolidated Silver Mining Co. v. Pennsylvania – 125 U.S. 181 (1888), the Court clearly affirmed the doctrine, holding, “Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution.” This doctrine has been reaffirmed by the Court many times since.

Additionally, this very good article addresses that topic. It was written by Rep. Adam Schiff (D-CA) in a 2012 The Atlantic Op-ed:  It follows here in part.

“Three weeks ago, in a decision all but lost in the tumult over the Supreme Court's ruling on the Affordable Care Act (ACA/Obama-care), the Justices overturned a century-old Montana law that prohibited corporate spending in that state's elections.”

(My inserted note also from The Atlantic: Advocates of campaign finance restrictions are not necessarily displeased by the Supreme Court's unsurprising, summary disposal of Montana's ban on independent corporate campaign expenditures. The brief unsigned order in ATM v Bullock, reversing a Montana Supreme Court decision that upheld the ban, will "further fuel" the drive for a constitutional amendment repealing Citizens United, according to free speech for, where hyperbole reigns: “In the face of overwhelming evidence that the basic premise of the Citizens United ruling was wrong, five justices of the United States Supreme Court today said they do not care. They do not care about the facts.”)

“In the bigger scheme of things, the Montana case may have been the more significant decision that week, since corporate influence over a raft of key issues, including health care reform, was hanging in the balance.”

(My inserted note: Which we just saw in the Hobby-Lobby case (5-4).

“In the Montana case, the Supreme Court had the chance to revisit its deeply flawed 2010 decision in Citizens United. But despite the urgings of members of the Court itself and a public shell-shocked by the recent torrent of unregulated corporate expenditures, the Court chose instead to double down and reaffirm the conclusion of Citizens United that corporations are people, at least as far as the First Amendment is concerned.”

“As a legal decision, the Citizens United opinion was remarkable in many ways — in its willingness to overturn a century of jurisprudence, in its choice to issue as broad a ruling as possible rather than as narrow as the case and Constitution required, and in its reliance on minority or concurring views in prior decisions rather than the prevailing opinions in those same cases.”

“As Justice Stevens pointed out in a striking dissent, nothing had really changed since prior controlling case law except the composition of the Court itself. So much for stare decisis.”

(My inserted note: Stare decisis is Latin for “to stand by things decided.” In short, it means the doctrine of precedent, which is when the Court cites stare decisis it is saying, essence, the issue has been previously brought to the court and a ruling already issued. Note: Generally, courts will adhere to the previous ruling, though this is not universally true, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).

“But what stood out most about Citizens United was not the Court's legal reasoning, but its staggering naiveté. As the Court confidently declared, "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." And for skeptics who thought otherwise, the Court provided this additional assurance: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

“Well, glad that's settled. Unfortunately, the five Justices who joined this opinion must be the last five Americans to feel that way. Certainly none of the evidence before the Court in Citizens United or the Montana case compelled a conclusion so at odds with reality.”

More at the links, the original post begins from here:

What follows is from my personal archives with data gleaned from Mother Jones and the Washington Post. It felt a good review was needed now as we move into high gear for the upcoming 2014 midterms. And, by some accounts some would say, getting ready for the 2016 dash for the White House. Reflection is good for the soul they say (whoever "they" is), and I'd had to say that the awful Citizens United ruling and the couple that have followed since (more on those below in this blog) have been great for a lot of bottom line folks.

Here we go: As predicted, campaign Ads that would previously had been illegal are airing in key midterm election races all across the country (e.g.,. we saw over $1.5 million spent by Karl Rove Ads in this district just recently in the hotly-contested GOP primary - they were all negative as expected). 

A little background first: The players and their Ads since Citizens United are not all from the sources you might have expected for a number of reasons. As it turns out some of the first groups to exploit the Citizens United ruling were not big corporations, but are labor unions.

One Ad example: Union Ad against a candidate by name, which was a no-no before Citizens Untied: “Sen. Blanche Lincoln packed up and left us years ago. Maybe it’s time for us to send her packing, for good.”

These new kinds of Ads are in the category of “express advocacy.”  

Now the twist is that they can tell the public directly to vote for or against a specific candidate, whereas before the Citizens United ruling, Corporations, Unions, and other Independent groups could only run express advocacy Ads if they were funded by political action committees, which are restricted to $5,000 donations each year from individuals — a category known as hard money, but now those groups can use any funds for these campaign efforts — an unrestricted category called soft money.

Now, that rule is passé. Groups can have far more soft money than hard money and thus they are able to blast candidates or incumbents by name in their attack Ads at will. Worse, one knows where the money comes from, or whose interests are at stake and for what reason. And, boy are they happy, with many of them saying openly: “We couldn’t say a lot of things before this ruling, but now we can and with lots of different money.”

As far as the so-called “Independent groups and their money,” um… they previously had been allowed to run issue-based Ads using unrestricted funds, but were required to tie those Ads to a specific piece of legislation or other concrete proposal, urging voters and say things like: “Call Congress” (note: could not advocate for or against a named candidate or incumbent). That is now passé, too.

One of the GOP’s strongest supporters, the Chamber of Commerce, said that they plan to spend $50 million on the 2010 election alone after the ruling. That would be twice as much as they did in 2006. Thus far in 2010, political expenditures overall had topped $2 billion in 2010. Further, the Washington Post says that “about two-thirds of expected group expenditures will come from conservative-leaning organizations> (charts below reinforce this point).  

Labor unions also planned to spend record amounts. For example, AFSCME and the AFL-CIO devoted some $100 million combined in 2010 after the ruling. 

There are several graphic illustrations to show the growth in 4 short years since the ruling (one is posted above). Six more make excellent points and all posted here.

The so-called bottom line: Outside spending is 25 times higher than it was at this point in 2006. Welcome to the future of American elections. It will get worse.” Hang on tight.

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