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Tuesday, January 26, 2010

Conservative Judicial Activism

08-205 Citizens United v. Federal Election Comm'n (01/21/10)
"Activist" in the judicial context has come to connote an epithet aimed at a judicial decision one disagrees with. Although some try to pin this label and its pejorative underpinnings exclusively upon jurists of a generally more liberal ideology, the fact is that it applies to those at all points of the political spectrum. An "activist" decision is generally understood as one that looks beyond the law or the issues presented in an effort to accomplish a broader goal or a decision that relies upon policy reasons rather than deep-seeded principles of law. In this regard, there has not been a more activist decision of the Supreme Court in recent years than its recent decision in Citizens United v. Federal Election Commission. In this decision, the Court (1) went beyond the issues the parties presented (going so far as to resurrect, entirely on its own initiative, a claim that had been abandoned by the plaintiff years earlier), (2) proceeded in the complete absence of a factual record and thus was forced to base its decision upon supposition and bias, (3) insulted the reasoned judgment of its co-equal branches of government, and (4) overturned a long-standing precedent for no other reason than a make-up of the Court had shifted and thus there were now five Justices who disagreed with the conclusion in a prior case.

But aside from fitting within the "activist" label, the Court's decision in Citizens United represents a dramatic reversal in how corporations are viewed in the United States and lays the groundwork to entirely eviscerate basic electoral safeguards that have been in place for over a century.

The law at issue in Citizens United prohibited a very narrow type of corporate actions: corporations (or unions) were prohibited from using general corporate funds to support a message disseminated via broadcast, cable, or satellite communications, capable of reaching at least 50,000 persons, within 30 days of a primary or 60 days before a general election and that could be seen only as a vote for or against a specific candidate. Outside of these time, place, and manner restrictions, a corporation could do as it pleased. But even within these time periods, contrary to the conclusion of five Supreme Court Justices, there was far from an outright ban on corporate speech. A corporation remained able to speak as it saw fit; it simply had to do so through an independent political action committee which was not funded from the corporation's general treasury and instead funded by the donations of individuals.

The fundamental flaw in the Court's reasoning is the entirely misguided belief that when it comes to First Amendment Free Speech protections in the context of political speech, a corporation is, in every way, equivalent to an individual.

As we all know, the Constitution begins, We the People of the United States . . . . Corporations are not mentioned in the Constitution, which is not surprising because they scarcely existed at the time of the founding. At the time of the founding, corporations were disfavored and there was profound concern that corporations would undermine the values upon which the nation was founded. Thomas Jefferson famously stated, "I hope we shall . . . crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strengthand bid defiance to the laws of our country."

Corporations are artificial legal creations. Unlike natural persons corporations generally exist in perpetuity, are endowed with unique legal rights such as limited liability, and are given favorable treatment regarding the accumulation and distribution of assets. However, the rights and privileges of a corporation, unlike individuals, are not inherent and inalienable. As entities created entirely by state law, a corporation has only the rights that the state chooses to bestow upon them.

In an effort to make these artificial entities fit within a pre-existing legal framework built upon the rights and responsibilities of individual persons, there has developed the legal fiction of regarding corporations as "persons." This legal fiction makes sense in certain contexts; for example, it permits the corporation to sue or be sued without it being necessary to name every stockholder in a complaint. In the constitutional context, corporations are entitled to certain constitutional protections on account of their status as artificial "persons." Again, certain of these expansions make sense. For example, a corporation can be held criminally liable for its actions, and thus it obviously follows that a corporation should be entitled to due process, a right to a jury trial, and all concomitant rights. 

However, a corporation is not entirely constitutionally equivalent with a natural person. Corporations cannot vote nor run for office. They are not counted in the census to determine representation in Congress or in the Electoral College.

In the political speech context, the fact that a corporation is an artificial person without the right to vote is significant. The Court's ruling not only adds to the political discourse the voice of an entity without the right to vote, it also adds a voice that has the unique ability to drown out all others, including not only the voices of the electorate but candidates themselves.

Although maxims such as "there is no such thing as too much free speech," might work on a bumper sticker, when it comes to the reality of speech during a finite amount of time, there is certainly a maximum on the amount of speech. In the crunch time before an election, which the law regarded as the 30 days before a primary or 60 days before a general election, when most voters are making up their minds, there is a finite amount of time and space for political speech. But more importantly, a voter has the patience and capacity to absorb so much. Thus, an opponent may be successful not only by convincing a voter of his viewpoint but also by simply drowning out the other side.

Despite the fact that a corporation cannot vote, a bare majority Supreme Court held that corporations should nonetheless be vested with constitutional protection to be able to participate in the electoral process through the spending of unlimited amounts of money from their corporate treasuries to support or attack a candidate for office. For the first time in the century plus history of such laws and reversing two decades of precedent, the Court regarded this as a First Amendment right of corporations, holding that there was no legitimate basis to subject corporations to restrictions that individuals were not.

In an effort to support its dramatic departure from precedent, a majority of the Court repeatedly referred to a right of individuals to band together and to exercise their right to free speech collectively. This right is undisputed; in fact, it is implied within the First Amendment in its recognition of the right to peaceful assembly. But it is entirely disingenuous to contend that a corporation represents nothing more than an association of individuals. Rather, the fact that a corporation has an identity and existence entirely separate of the individual constituents (whether the executives, officers, or shareholders) is precisely what makes incorporation so attractive.

The Court's conclusion rests upon the entirely false assumption that a corporation represents the collective views of individuals. Individuals banding together through a non-profit charitable association with a dedicated mission to achieve certain goals and funded by the donations of like-minded individuals is entirely distinguishable from a traditional for-profit corporation. A corporation's voice is not merely the sum total of the voices of its executives, employees, stock holders, or customers. Rather, it is a distinct voice that may be grossly out of touch with the populace but nonetheless has the ability to drown out all other voices as a result of its capitalistic accumulation of wealth.

Not even a corporation's CEO may utilize a corporation's assets to further his personal views. Rather, all corporate officers owe a fiduciary duty to act in the interest of the corporation. This fiduciary duty precludes him from using corporate assets to further his personal views but also means that he must do actions that are in the best interest of the corporation even if they may be diametrically opposed to his personal views. As Justice Stevens noted in his dissent, which was joined by Justices Ginsburg, Breyer, and Sotomayor, "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

The Supreme Court has given legal fictions that have no constitutional right to even exist the right to utilize their immense assets to crush candidates who take positions contrary to the goals of the corporation.

Even with the opportunity for corporations to participate unfettered in the realm of political speech, naturally, the voters remain the ones who ultimately decide who will win an election. Although a voter conscientiously evaluating candidate positions and qualifications to determine his vote is certainly an ideal, study after study demonstrates that such rational decision making is rare in the electorate. The reason that deceptive attack ads proliferate seemingly exponentially each election season is because they prove effective. In Wisconsin, you need only look to Justice Michael Gableman's grossly deceptive attack of then-Justice Louis Butler to recognize the harm that an entity willing to stoop under ethical bars to win an election can cause.

With the Supreme Court's ruling, every elected official will now be forced to perform her duty always cognizant that a single wrong move, a single vote that might be in the best interest of her constituents but contrary to the interests of a powerful corporation, might upset the sleeping corporate giant and motivate an re-election war where the collective power the official's individual supporters are no match for massive corporation.

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