Supreme Court opens the floodgates to corporate and union money in elections

This is huge, folks.  The Supreme Court today, by the totally predictable 5-4 vote, overruled a 20-year old case and held, instead, that corporations and unions may use money from their treasuries to make independent election-related expenditures.  The ruling removes the need for corporate and union interests to set up separate PACs or Action Funds.  The money can now come right out of the till.  All the opinions are here.

The Court did uphold disclosure and disclaimer regulations providing for a limited degree of transparency.

The opinion is really long, as is Justice Stevens’ dissent.  I haven’t read either yet.  The two places you should go for analysis are the always-reliable SCOTUSblog and Rick Hasen’s excellent Election Law Blog.  Both are likely to have useful posts up later today.

UPDATE: There is a new group called “Free Speech For People” that has announced a campaign to overturn today’s decision by amending the Constitution to clarify that corporations don’t have free speech rights.  One proposal:

Amendment XXVIII

Section 1    The sovereign right of the people to govern being essential to a free democracy, no corporation, limited liability entity, or other corporate entity created by state or federal law or the law of another nation shall enjoy the rights of free speech and expression protected for the people by the First Amendment.

Section 2   Congress and the States may regulate the expenditure of funds by any corporation, limited liability company, or other corporate entity in public election activity.

Section 3.  Nothing contained in this Article shall be construed to abridge the freedom of the press.

Will be interesting to see if this gets any traction.

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35 Comments . Leave a comment below.
  1. The dollar rules,

    as usual. Can we expect legislators to openly sell their votes to the highest bidder? Will we see them wearing corporate logos, or changing their titles - "The TD Banknorth Junior Senator from Massachusetts?"

  2. Yikes, get something into the Democratic platform, pass resolutions, organize, do not take this lightly

    http://www.freespeechforpeople...

    The above already started up, and I am sure there will be other groups like it.  

  3. OK, so we're slipping further down this crazy slope of granting $quot;citizenship$quot; to corporations...

    So David, as our resident legal scholar, and this is a serious question and the serious answer depends on what the majority opinion says, but could this lead to stronger criminal sanctions against companies and executives that break the law?  

    Instead of the usual fines and civil penalties, now that corporations are granted the same rights as people (as absurd as that sounds) it seems they should face similar penalties people face when we break the laws society creates.  So instead of Exxon paying a fine of $100 million for breaking the law, the chairman of the board does six months in jail...or the company is sentenced to one month of not being able to conduct business in the jurisdiction where the law as broken?  Yes, these are crazy thoughts, but no crazier than this ruling.

    • I am not a lawyer...but...

      Instead of the usual fines and civil penalties, now that corporations are granted the same rights as people (as absurd as that sounds) it seems they should face similar penalties people face when we break the laws society creates.

      Having read only the syllabus, as yet, I gather that the ruling says less about corporations as citizens than it does about supposed poor reasoning on the part of previous Supremes when they crafted the initial rule. The logic goes like this (as far as I can tell):

      -- Citizens have free speech rights

      -- 'Compelling state interests' trump free speech rights but laws that interfere with free speech can only do so in a way narrowly tailored to further only the 'compelling state interest'.

      -- Corporations are citizens

      -- Therefore corporations have free speech rights

      -- In Austin v. Michigan Chamber of Commerce the court said the free speech rights of the corporations could be curtailed because of "the corrosive and distorting effects of immense aggregations of [corporate] wealth"

      -- Today, in Citizens United v FEC the present Supremes say that logic of Austin is unsound and further that immense aggregations of wealth aren't, per se, corrupt or corrupting: merely having big piles of money and spending it on politics doesn't amount to corruption and therefore fighting the 'corrosive and distorting effects of immense aggregations of [corporate] wealth' is not (enough of) a 'compelling state interest' to justify the law.

      The syllabus, at least, is rather hand-wavy and doesn't connect the dots well.  So I'll have to wade through Kennedy's 57 page decision to see if it's any tighter logically than it sounds at first blush.  

      • Yes, and it's that $quot;Corporations are citizens$quot; aspect that I'm focusing on...

        ...as absurd as that concept is to me.

        If a corporation is a citizen and therefore given one constitutional right, I assume they would be given others--like even the right to vote!

        But would that not have the same obligations and face that same penalties as citizens?  So when they break a law--like tax evasion--the judge would sentence the corporation to six months in jail.  And given that the shareholders are in fact the corporation, shouldn't a judge be able to sentence all the shareholders to six months in jail?  Again, an absurd concept, but maybe the result of an absurd ruling.

        • right...

          Yes, and it's that "Corporations are citizens" aspect that I'm focusing on...

          And my point was that the Supremes were, in this instance, taking that aspect entirely as given: as far as I can tell yet, they neither amended  the definition nor recognized any heretofore unseen implications.  So to answer your question (posit'd above...):  

          Could this lead to stronger criminal sanctions against companies and executives that break the law?

          No. Not directly. This, in fact removes some criminal sanctions in place and accepts no further implications of corporate citizenship... as far as I can tell.  Tho', I would expect that sort of thing to be in the dissents, which I haven't read yet (I always save the dissents for dessert...)  

  4. There you see the consequences of George Bush again,

    and the feeble efforts to oppose his appointments. The result was Roberts and Alito, and this ruling is the consequence. More percussions to follow as this judicial bomb continues to explode.

    I think the rule of campaign donations should be short and brief - if you can vote, you can donate. Businesses can't register and vote, therefore, no donations allowed. Unions, organizations, pacs, etc can't register and vote, again, no donations allowed. No one is stopping their members, employees, or owners from making donations.

    • I haven't heard George Bush blamed for anything in 24 hours.

      Thanks for doing your loyal democratic duty of blaming him for something. I wonder if Obama will have the brains to NOT blame President Bush for anything in this State of the Union.

      • He nominated 40% of the affirmative votes on the SCOTUS...

        he would seem to have 40% of the blame if, in fact, the SCOTUS made an inappropriate ruling.

        It's also possible that they made the right ruling, but that we have the wrong US Constitution.  After all, it wouldn't be much different than the IA or MA courts observing that the state constitutions had made gay marriage legal.

        Don't like it?  Change the rules.

        • $quot;Change the rules.$quot;

          See the update in my post.

        • We have the right Constitution

          The problem is that we have had 3 very bad court decisions:

          Trustees of Dartmouth College v. Woodward

          Society for the Propagation of the Gospel in Foreign Parts v. Town of Pawlet

          Santa Clara County v. Southern Pacific Railroad Company

      • Not reality-based

        Just taunting.

        Hence the zero.

  5. Let's go one step further

    How about an amendment that states, definitively, that a corporation is not a person?  

    • It would have to be a long amendment...

      Article 1: An automobile is not a person. Article 2: A bologna and cheese sandwich is not a person Article 3: The Statue of Liberty is not a person Article 4: A corporation is not a person Article 5: A rock is not a person Article 6: A labor union is not a person Article 7: A parking meter is not a person Etc., etc. .... Would it be easier to just try to define a person?

  6. Time, Place and Manner

    I haven't read the full opinion, but my take is that it requires corporations to be treated the same way as individuals are.  What concerns me the most in some ways are the astroturf groups that set out to mislead voters about their funding and affiliation.  

    Short of a constitutional amendment, could a state require all political advertisers to post on-line their sources of funding-or require instant full disclosure of the officers, directors, and major donors when advertisers book political ads?  I'm not sure exactly how this might work, but as Brandeis once noted, "Sunshine is the best disinfectant."  The sponsor-funder relationships of all political ads should be available to all, contemporaneously with the airing of the advertisements.  I think this would be legal under the new decision(at least until the SC decides the Washington petition case).  

  7. Interesting

    Like David, I haven't waded through the opinions yet--just the syllabus. I think it's important to note that the First Amendment provides simply that "Congress shall make no law ... abridging the freedom of speech," while the Fourteenth Amendment prohibits the states from depriving "any person of life, liberty, or property without due process of law." Note that the First Amendment doesn't use the word "person" at all, and in fact, some First Amendment cases focus more on the importance of the public having access to the speech than on the right of the speaker.

    The First Amendment applies to the states only because of incorporation via the Fourteenth Amendment. So since the law in question in this case is a federal law, it seems to me there is a textual reason basis for deciding this case without taking a position one way or the other on whether a corporation is a "person", let alone a "citizen."

    This is all off the cuff, so have at it if you think this is way off-base.

    TedF

  8. Should't the 4-vote minority be allowed to filibuster this decision to death?

      If that doesn't work, someone, maybe the president, maybe someone in congress, should make a personal isssue of this.  Demand that one or more of the 5 vote majority resign.  Point out the conflicts that exist, introduce legislation or hold hearings on the justices' conduct--in short to make the connection between the economic disaster that corportations are causing and the judges who want to extend the power of those corporations.   It's not a hard case to make.

  9. Judicial Activism

    This is yet more proof that conservative courts are capable of being at least as "activist" as liberal courts. "No policy-making by the courts!!" "Let the people vote!!!!"

    Hah, I guess not.

  10. Lawrence Lessig weighs in

  11. What is it about $quot;Congress shall make no law$quot;

    that you lefties don't understand?

  12. To be honest...

    ...I've never been completely comfortable with the restrictions.  Why shouldn't a union, business, or non-profit spend their own money to buy air time to say "Vote for John Doe for Senate because he will..."?  Sources for money would of course need to be disclosed and a website should be provided so people can get more information about the funding source.

    • Sources should NOT be disclosed

      Look at what has happened with Prop 8 in CA.  We have people running around threatening people and businesses for their POLITICAL speech.  So you do this you are certainly supporting a law that violates the first amendment and restricts free speech by making people hesitant to speak. See Thomas' partial dissent. Remember this river flows both ways. See the law of unintended consequences, kharma and Ted Kennedy beggin for laws to be changed to benefit Democrats when President Kerry was elected. Ted Kennedy gave us the laws that allowed Scott Brown's election and the destruction of his lifelong dream and his party.

      Kharma.  She's a bitch.  

      • $quot;See Thomas' partial dissent.$quot;

        Oh please.  Even on as extreme a Court as the one we have now, Thomas's zany views got only one vote -- his own.  Even Scalia and Alito, the second- and third-most conservative Justices, voted to uphold the disclosure provisions.  

      • Then you protect people from retaliation.

        Voting per se is a fundamental right and the secrecy thereof must be protected.  However, if I see an ad saying vote for John Doe because he believes in sensible resource management, "paid for by Citizens for Sound Environmental Policy" then I want to know exactly who's behind CSEP.  Even currently the way these frontgroups work is they throw out terms like "sensible resource management" and adopt names that on their face seem very unobjectionable.  Then it turns out that they don't mean it at all and their major funding is from ExxonMobil or its executives.  That speaks to credibility and is valuable information for a voter to have.

  13. In 1816, Thomas Jefferson wrote:

     "I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country."

    This ruling is just the culmination of two centuries of corporate accumulation of power after Jefferson's warning.  We shouldn't be surprised.  The lesson is that we should be working to diminish corporate power in a broader way.   And strengthen popular democracy in a broader way, so we don't keep ending up with candidates who can be bought.

    • If that is the case..

      Why didn't you support Scott Brown?  His money was from small donations.  Coakley's was from Health and Pharma lobbyists and unions!  The you hafta ask yourselves why did these guys support Martha and ZeroCare?  Maybe Martha and Obama are the choice of the really big corporations?

      • Brown's money also came from PACs that are front for corporate or extremist interests.

        Don't kid yourself that he was a grassroots candidate.

  14. wicked easy solution

    pack the court. the threat alone struck fear in the hearts of the righty wingnuts in FDR's time... maybe it'll do the same today. And if it doesn't, follow through with the threat. Give Obama 2 new picks and see what Roberts can do then...

    • Sadly, TOO easy

      It hasn't ever worked. Supreme Court justices are notoriously unpredictable. Just ask George H. W. Bush about David Souter or Dwight Eisenhower about Earl Warren.

      In my view, the proposed amendment is a far better solution.

      • I don't disagree,

        but why tie ourselves to only one tactic? It could take years to change the constitution, some of which the full force of this decision will be in place so corporations pour in cash to prevent the change (a much easier thing to do than even change simple law).

        A threat to pack the court could get some changes, could force some retirements and, if all else fails, we could actually pack it with the most liberal sure-fire votes we can find... from the ACLU, colleges, etc. etc. etc.

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Fri 31 Oct 4:42 PM