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Thursday, January 21, 2010

Good News, Crazy Bad News

Quite a day. First the positive. After two months of negotiation, Mrs. TMcD and I appear to have bought ourselves a new house, about 50% bigger and only a few blocks from campus. If you're curious, shoot me an e-mail and I'll send you a link.

Hmm. . . what else? Oh, it appears that only a day after the Democrats decided to strip themselves naked, castrate themselves with a rusty spoon, and then run around singing Beck's "Loser" at the top of their lungs, the Supreme Court has decided that our pesky little experiment with democracy is officially over. Citizens' United v. FEC will certainly go down in infamy as one of the most toxic decisions in American history. Its arrogance is as staggering as its consequences are devastating. Less than a decade after canceling a presidential election to install George Bush via judicial coup, the same 5-4 majority (the same 5 seats on the court) decided that the greatest injustice of American electoral politics is the insufficient ability of corporations to influence, nay control, our political institutions. Its as if they decided that, after a year of Obama, Democrats should never be allowed to hold power again, unless that is, they become just one more species of Republican. Ralph Nader will have proved prophet not madman. Brrrrrr.

Dems should turn this into an opportunity to raise holy hell. But then these are the same guys who defer to the GOP majority of 41 in the Senate with nary a peep. I'll comment more later once I've had time to reflect. At the moment, however, I fear for our future.


At 1:13 AM, Blogger Frances said...

Congratulations on the new home!! That's the only good news I've seen all week. Pls do send the link!

Agreed on the potentially frightening implications of the Citizens United case. I'm less concerned about what it means for presidential elections, where there are vast sums in the system on both sides, than for congressional races. A corporation can sweep in to take down a particular member, bringing far more money to bear than is available through hard money donations for the candidates themselves.

With the limits on what parties can do in elections, doesn't this make corporations more free of regulation than political parties? This is not an area of the law I know well, but I fear that this might be the case.

As if Congress weren't afraid enough of corporate interests as it is.

At 10:38 AM, Blogger Gina said...


Ditto on the congrats on the new home! Please send me the link as well. The country, the economy, the university, and the workplace are all going to hell at the same time. It's nice to see some happiness going on.

At 10:14 AM, Blogger fronesis said...

Congrats on the house!

TMcD's thoughts here echo my initial gut reaction. Glenn Greenwald's take is very interesting. Curious to know what others think about it:

At 10:54 AM, Blogger tenaciousmcd said...

That Greenwald piece is crap. I read it yesterday, and it reminded me of why I so often question his judgment. It's like he doesn't know anything a@out the law. (Which he clearly does, a former prosecutor.) "It's all simple: either the 1st prohi@ts something or it doesn't."

Ummm. No. The first amendment is not explicit. That's why judges rely on history, precedent, logic, and circumstance to make prudential judgments. And it's why they defer to Congress in many cases where the trade offs are toughest and the results are fundamentally "political." In this case the trade off exists w/ expanded "speech" on one had and expanded corruption on the other. The corruption angle is pretty clear and compelling. The speech issue is not. The key entity is a corporation, hence a legal entity created under state regs, even if there is some precedent for equating corporations and individuals (though the original SCt "decision" from Santa Clara wasn't a decision at all, just errant dicta inserted y the court reporter). Still, corporations have never had full status as "individuals" under the law, the longstanding allowance for @ans on certain kinds of advertising as a key example. When has "speech" ever @een all or nothing? To me this is a classic example of the "rights talk" Mary Ann Glendon critiques so effectively. Americans lose themselves in a rhetoric of a@solutism that actually has no reality in the historical application of law itself (nor could it).

[Ever try to post w/o a couple of keys on a key@oard? Fun!

At 7:02 PM, Blogger Wilson said...

"Congress shall make no law..." -- nothing in there about individuals or the source of the speech. That said, I get the compelling state interest thing, but this is political speech we're talking about here--the very crux of the first amendment's speech protection. It better be a heckuva compelling interest.

Moreover, it's not like this changes much. Before, corporations just had to establish PACs, or find another indirect way to influence things. It is not as though McCain-Feingold has decreased the amount of money flying around during the elections in this country. This just removes a procedural hurdle.

If you're mad because Greenwald isn't reflexively anti-corporate enough for you, try this one too:

And let's not forget that this amazing law was being used to restrain a non-profit corporation from airing an anti-Hillary Clinton documentary! If that's not protected speech, what is? The ACLU urged overturning McConnell in their brief, so this isn't some conservative hack job here.

At least grant that it is conceivable that the Constitution says something that you disagree with, that it places some meaningful constraints on Congress.

At 9:03 PM, Blogger tenaciousmcd said...

Wilson, you raise a couple of interesting issues here, so let me make my case more precise. I'm not quarreling with the specific outcome with regard to Hillary: the Movie. As numerous commentators have pointed out, the court easily could have upheld CU's right to run that movie on demand (as it was run) on narrow grounds that did not open the door to unlimited corporate spending. Yet they went out of their way to invalidate the entire system of corporate spending restrictions in a way that also overturned a century of law and decades of SCt precedent.

As for PACs, you are right that corporations already exert an influence. Indeed, it is a great one. Yet that only underscores how "reasonable" Congress' restrictions have been w/ regard to corporate speech. There is no blanket ban, just a set of conditions that corporations (artificial entities, often wielding great power) must meet in order to spend money on campaigns. PACs have contribution limits, verifiable disclosure, and revenue sources independent of corporate general funds. All of which are reasonable measures to prevent them from dominating the system while allowing them a voice. Where then is the injustice being righted here? Poor little corporate America? Was Ayn Rand right that the capitalists are our true "persecuted minority"?

Part of the problem is the money = speech formula. They are related but they are not the same. If they were identical, bribery would be a 1st Am. right, which it is not. Previous decisions (buckley) recognize this, CU does not.

I will grant that the constitution says things with which I disagree. (I dislike both lifetime judicial tenure and equal state rep in the Senate, for example.) I just fail to see where unlimited corporate campaign spending is entailed in the 1st amendment. Representation free from corruption seems to be a compelling constitutional purpose as well, one given little if any weight here.


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