The Roberts Court’s Activism on CU v. FEC

Bill Moyers’ Journal reminds me of why I so dislike Floyd Abrams’ and his disingenuousness. His defense of Citizens United in the “First amendment” case which the Activist Judges at SCOTUS have decided to rehear this Wednesday, September 9^th, with an issue not raised on cert is most frightening for our “democracy.”

Here is the link to Moyers’ interviews on the issue and the consequences of the case on the Journal. You will note that it isn’t a Faux News interview. The interview is really quite informative. He also does a segment with Trevor Potter formerly of the FEC.

Now here is a comment that was posted at Economist’s view which I found very interesting:

A Corporation is an asset not a person, Justice Waite not withstanding. Corporations cannot go to jail for criminal behavior. Corporations cannot be executed for capital crimes. Corporations cannot be drafted for military service. Corporations do not have a natural mortality. They have zero native intelligence, and make no independent decisions. They are owned by their stockholders.

The people who own property in common ( through a corporation ) have their property rights, and it may be good English shorthand to refer to a Corporation's actions rather than a Corporation's Board's actions or a Corporation's Officer's actions, but it is not technically correct and should not be perceived as legally correct either.

BTW, if the 14th Amendment applies to Corporations as "persons", would the 13th also apply? Since stockholder persons "own" the corporation person isn't that "slavery"? Of course not, because obviously corporations are not persons with rights and freedom.

There are also many other thoughtful comments to the blog post.

And then we have E.J. Dionne of the WAPO who writes an excellent column on the subject:

President Obama's health-care speech on Wednesday will be only the second most consequential political moment of the week.

Judged by the standard of an event's potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.

This sounds melodramatic. It's not. The court is considering eviscerating laws that have been on the books since 1907 and 1947 -- in two separate cases -- banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.

The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word "radical" does not capture the extent to which the justices could turn our political system upside down. Will it use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?

Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.

Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday's big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns.

I don't have the space to cite all the precedents, dating to the 1976 Buckley campaign finance ruling, that the court would set aside if it were to throw out the prohibition on corporate money. Suffice it to say that there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

"I do think that it is a jolt to the legal system when you overrule a precedent," he said. "Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question."

This careful jurist continued: "And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments." He paraphrased Alexander Hamilton as saying in Federalist 78, "To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of "arbitrary discretion" to discard a well-established system whose construction began with the Tillman Act of 1907.

Read the whole column as this is indeed one of the most important threats to our democracy that the Roberts’ Activist Court has undertaken to date.

You need to be informed about this case and as usual Mr. Dionne does a very good job at informing!