FROM A NEW YORK TIMES PIECE OF LAST AUGUST by Timothy Egan (“Fifty Shades of Scalia,” Aug. 8), we are introduced to the Antonin Scalia of Citizens United v. the FEC, the Supreme Court decision that opened the floodgates of corporate money in elections and overturned more than a century of precedent.
This, we are assured, was not an “activist” decision; rather, it flowed, as seen by Scalia and other judicial conservatives, from an “originalist” interpretation of the Constitution. That is, from the result of pinning down the original intent of the founders. That prior courts had not located that original intent was, of course, a function of lacking the talent to reach back into the thought processes of those earlier statesmen — a complex problem indeed, though one easily overcome when armed with the probing mind of Antonin Scalia. And how, one might ask, are we to distinguish between the purity of an opinion that deftly pries original intent from the ambiguities involved, and the dreaded “activism” that by conservative writ must never darken our doorsteps or thoughts?
Asked by Piers Morgan on CNN about this decision and the 5-4 ruling that eliminated the last constraints on the very rich to dominate public discourse in the way they know best — by buying it — Scalia was unrepentant.
“I think Thomas Jefferson would have said, the more speech, the better,” Scalia said. “That’s what the First Amendment is all about, so long as people know where the speech is coming from.”
While I profess to no sophistication about the law, I am acquainted with some of Thomas Jefferson’s views, in particular his views on corporations, and I am having considerable difficulty in following the brilliance of Antonin Scalia down his chosen pathway. In a number of statements, Jefferson made clear his distaste — and that is far, far too mild a term — for the corporate mentality and world.
Jefferson: “I hope we shall take warning from the example and crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and to bid defiance to the laws of their country.”
Further, I have searched assiduously and can find no Jefferson statement equating money and speech. I think it clear that he would find that an obscene suggestion.
As noted by Adam Cohen before the Citizens United decision (New York Times, “A Century-Old Principle: Keep Corporate Money Out of Elections,” Aug. 11, 2009), “The origins of the actual 102-year-old ban overturned lie in the 1896 presidential race, which pitted the Republican William McKinley against William Jennings Bryan, the farm-belt populist. Bryan was a peerless orator, but McKinley had Mark Hanna — the premier political operative of his day — extracting so-called assessments from the nation’s biggest corporations and funneling them into a vast marketing campaign.
McKinley, who outspent Bryan by an estimated 10 to 1, won handily, proving Hanna’s famous dictum: “There are two things that are important in politics. The first is money, and I can’t remember what the second one is.”
Cohen adds, “The court’s conservative majority has been aggressively championing the rights of corporations, but overturning the contributions ban would take it to a new level. Corporations have enormous treasuries, and there are a lot of things they want from government, many of which clash with the public interest.
“If the conservative justices strike down the ban, they would be doing many things they disavow. They would be substituting their own views for the will of the people, expressed through Congress. They would be reading rights into the Constitution that are not expressly there, since the Constitution never mentions corporations or their right to speak. And they would be overturning the court’s own precedents.”
So much for the originalism of Scalia, Alito and Thomas.
Originalism depends for its validity, it appears to me, upon two propositions: first, that one can clearly discern the intent of the founders; and second — a far more difficult proposition with respect to the complex problems and issues with which we are faced today — that those founders would not have altered their views when confronted with new and incredibly different contexts, circumstances and realities.
Carl Pope (“Did Thomas Jefferson Think Corporations Were People?” Sept. 14, 2009) argues the following: “No, if you want to argue originalism, you must also throw out all the judge-made law of the last half of the 19th century, too. And it is the cases of that era — cases that established that corporations have rights like individuals — that Alito, Scalia and Thomas are relying on to make their case for throwing out congressional regulation of corporate political spending.
“The key decision came in 1886, in Santa Clara County vs. Southern Pacific Railway. At the start of the case, the Chief Justice announced that the Court would not even hear arguments about whether the 14th Amendment, guaranteed equal rights to all citizens, included corporations — the Court simply declared that it did. In doing to, it ignored the well-established legal doctrine that once a state gave a corporation a privilege it constituted a contract that must be honored, but also that the specific privileges granted came with its charter and did not extend beyond it.
“Now this was judge-made law with a vengeance. It utterly upset the small-holder character of the original Constitution, with its deeply ingrained mistrust of corporations and other large economic institutions. But even after these cases, the Courts continued to rule that Congress and the states had the right to regulate some corporate political spending.
“Now, what faced the Court in Citizens United v. the FEC was an effort to complete the judge-made revolution that begin in Santa Clara. Corporations (those mythical ‘persons’) would be granted not only the special privileges of their status (immortality, limited liability, protection from most criminal sanctions) but also the full range of political privileges of American citizens.”
For some crucial economic realities related to this decision, back to Timothy Egan’s powerful analysis:
“‘I think Thomas Jefferson would have said, the more speech, the better,’ Scalia said. ‘That’s what the First Amendment is all about, so long as people know where the speech is coming from.’
“Yes, of course: let’s imagine Jefferson, sitting in a hotel room in Steubenville, Ohio, this August of 2012, sipping a Virginia claret while trying to find some evidence of the clash of ideas in the great arena of free speech that is his flatscreen.
“What he sees, and endures, is not more speech — that would involve a diversity of thoughts and voices, a point and a counterpoint, an evidence-based conclusion every now and then. Who wouldn’t welcome that?
“Instead, what Jefferson hears is the same speech, from a tiny minority that can buy the biggest megaphone, compacted into 30 seconds by people who could sell sunglasses to a raccoon. And the sainted founder certainly would not know ‘where the speech is coming from,’ thanks to a modern hybrid of legal corruption, refined by the industrious Karl Rove, that shields big-money donors from public disclosure.
“The proof is in the numbers. Secretive donor money in federal elections went from 1 percent in 2006 to 44 percent in 2010, after the Supreme Court lifted restrictions, according to the ever-vigilant Center for Responsive Politics. Subsequent decisions, by a lower court and the Supremes in a Montana case, have further freed deep-pocketed influence-buyers to crowd out all others.
“That, Justice Scalia, is what Citizens United gave us — less speech, the few dominating the many with a very narrow message.
“To put it another way: so far this year a mere 26 billionaires have given $61 million to ‘super PACs’ (and these are the ones whose names have come out, through disclosure or journalistic ferreting). Those 26 billionaires have a net worth, according to the C.R.P., equal to 42 percent of all American households, about 50 million people. How could it possibly be good for a functioning democracy if a bit more than two dozen people have a voice equal or greater than 50 million?
“In the new post-Citizens world, money equals speech, as Scalia himself says with a benign smile. It follows that there is more speech only for those who can buy into the game.”
Jerome Page is a Benicia resident.
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Thanks Jerome for informing us how President Obama won re-election. Justice Scalia and the other members of the court awarded it to President Obama. Very interesting comment. I did not know you did not realize that.
Pinpoint support for that, Bobbie, please? Document it with exact quotation from Page’s article? Maybe I can’t read, but I didn’t see anything whatsoever stating or implying the USSC gave the election to Obama. You seem to live in some alien world, or you try to influence readers by warping the facts.
Mr. Page, thanks for this article. Two other Supreme Court cases that come to mind would be Buckley vs. Valeo, 1976 and Bush vs. Gore, 2000.
Your quote from Mr. Jefferson reminded me of two of my favorite quotes about the power of corporations.
“We may congratulate ourselves that this cruel war is nearing its end. It has cost a vast amount of treasure
and blood…but I see in the near future a crisis approaching that unnerves me and causes me to tremble
for the safety of my country. As a result of the war, corporations have been enthroned and an era of
corruption in high places will follow and the money power will endeavor to prolong its reign by working on
the prejudices of the people… until wealth is aggregated in a few hands and the Republic is destroyed.”
— Abraham Lincoln, 1864.
…——————————————————————————————————————————-
“The twentieth century has been characterized by three developments of great political importance: the
growth of democracy, the growth of corporate power, and the growth of corporate propaganda as a means
of protecting corporate power against democracy.”
–Source: Alex Carey. “Taking the Risk Out of Democracy: Corporate Propaganda versus Freedom and Liberty.” 1997.
Will was the power of the unions OK with you? A union endorsement meant plenty of money for the candidate. Was that OK with you? Is does appear Will you want it your way way. Very biased and not at all balanced. Just another way for the Liberals to call foul when it seems to now be balanced.
Do not talk about balance Bob. You don’t understand the meaning of the word.
Thank you Mr. Page for another excellent, insightful column.
Thank you DDL for the excellent source. Try reading it Real American.. I do believe you will now understand balance.
Anything from you or that fool is inherently unbalanced. But where is your attack on him for posting a link? Where’s the balance?
Where’s the balance?
Why is it that you seek only “balance” from one side and not the other?
Where is the balance in Mr. Page’s lengthy quotations from other columnists?
I’m addressing Bob’s disingenuous call for “balance.” Go write another 10th-grade book report.
I believe we all will just let you and Will Gregory write all the comments from now on. That is what you want. No challenege. No way will that happen. The true Americans will stand in your Socialist views way.
I’m addressing Bob’s disingenuous call for “balance
You are the definition of a lack of balance, far exceeding anything from Mr. Livesay.
Its a source of info not a biased left wing Socialist blog. That is the difference. You just will never learn.
Back to the bubble
Who spends more on elections corporations or unions? More information for the community to consider…
http://www.opensecrets.org/overview/blio.php
Will we just did consider it. Donations are split very enenly. Business 41/59 Rep.; Unions 91/9 Dems. You just made a fool of yourself Will. We have been saying this all along and of course you and RA were a sleep at the switch.
Union activity is absolutely okay when trade associations of business people are active and okay.
I would support Union donations for political purposes if all members were required to fill out a card to designate which political party their donations were to be directed towards (this would need to be subject to periodic audits).
Open secrets.org does an ecellent job of keeping people aware of where the money is going and where it is coming from.
14 of the top 25 contributors are Unions and virtually all of that money is going to the Democrats.
ecellent = excellent
More for the community to consider when contemplating our present circumstances…
“We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both.”
–Louis Brandeis
U.S. Supreme Court Justice (1856-1941)
We do now have both.. Its called opportunity.
Moron
Real American that is all you can do is name calling. No real ideas or thought. If we new your name or anything you wrote I am sure we all could make a better judgement on your politicasl knowledge. You say you are a writer and that is how you make a living. For all we know you are Will Gregory. It would be nice to know just who you are. Calling me a moron and then hiding behind a fake name I would say is cowardly.
Imbecile
Here comes the judge.
Idiot!
I agree Will on the significance of the Bush v Gore case. Thank goodness SCOTUS stepped in and prevented the Democrats from stealing that election. I shudder to think of what a “President Gore” would have done to this country.
Couldn’t have been worse than what the Commander in Thief did.
Had Gore been allowed full, due process and won, we would not have had the Iraq war nor failed before that to smash Bin Laden & Al Qaida in Torabora. Indeed, 9-11 may not even have happened.
Bobbie Shelby stated: Had Gore been allowed full, due process and won, we would not have had the Iraq war nor failed before that to smash Bin Laden & Al Qaida in Torabora. Indeed, 9-11 may not even have happened.
Pinpoint support for that, Bobbie, please? Document it with an exact quotation or reference. You seem to live in some alien world, or you try to influence readers by warping the facts.
I thought Mr. Page might appreciate this passage from Lewis Lapham’s book and the quotation from a great political thinker.
From the book:”Gag Rule: On the Suppression of Dissent and the Stifling of Democracy.” Penguin Books. 2004.
Mr. Lapham, states, that Thomas Paine, wouldn’t have much trouble recognizing the [George W.] Bush administration as Federalist in sentiment,” monarchical” and “aristocratical” in its actions, royalist in its mistrust of freedom, imperialist in the bluster of its military pretensions, evangelical in its worship of property. Mr. Lapham continues-‘In a White House we have a president appointed by the Supreme Court; at the Justice Department, an attorney general who believes that in America “there is no king but Jesus”;in both houses of Congress, a corpulent majority that votes its allegiance to class privilege and hereditary virtue. The natural tendency of such a government to collapse into the rubble of tyranny furnished Paine with the theme for which he found variations in all of his writing. From Paris in 1796, in an open letter to President George Washington that was published in a Philadelphia newspaper, he remarked on the fate likely to befall a republic bereft of both its principles and its senses:
” When we contemplate the fall of empires and the extinction of the nations of the Ancient World, we see but little to excite our regret than the mouldering ruins of pompous palaces, magnificent museums, lofty pyramids and walls and towers of the most costly workmanship; but when the empire of America shall fall, the subject for contemplative sorrow will be infinitely greater than crumbling brass and marble can inspire. It will not then be said,here stood a temple of vast antiquity; here rose a Babel of invisible height; or there a palace of sumptuous extravagance; but here, Ah, painful thought! The noblest work of human wisdom, the grandest scene of human glory, the fair cause of Freedom rose and fell.”
From the article:
“In the new post-Citizens world, [money equals speech,] as Scalia himself says with a benign smile. It follows that there is more speech only for those who can buy into the game.”
In the Orwellian world were money equals speech, (Buckley v. Valeo-1976) and corporations are considered the same as people (Santa Clara v. Southern Pacific Railroad-1886) and where men and women in black robes can steal elections (Gore v. Bush-2000); I’m reminded of the wise words of Supreme Court Justice William O. Douglas to ponder as we attempt to go forward into an uncertain future…
” As nightfall does not come all at once, neither does oppression.
In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a
twilight that we all must be most aware of change in the air–however slight–lest we become unwitting
victims of the darkness.”
Will, those quotations are as apt today as when they were written. Lincoln’s is prophetically timeless. We see it in action today.
Livesay writes as if he lives on Twinkies, chips and beer, which affects his thinking.
Robert Shelby just what do you live on? From what I have heard it is hand outs That is very nice of your followers to fortify you with sugar and coffee. What ever they serve you it has for sure had an issue with your thinking. Robert if I were you I would quit taking the hand outs and stick to the food stamps. Your chance of getting a good meal are better. But I do know the church dinner does meet your needs. The only problem with that Robert is you can only take so much home. It does appear you did not pay attention to the issue with food and how long it will last. Next time out pay attention to that detail it will help your thinking.
Whereas Livesay subsists only on the blood of newborn children. No minorities, please.
Thanks, again, Mr. Page. Your article is correct, timely and true in every detail. “Damn the torpedoes, full speed ahead!” And, “You may fire when ready, Gridley.” You demonstrate more learning and better research than ANY of the rest of us, who, comparatively, are mere pretenders.
As Obama’s group Organizing for America, continues his political campaign, and is selling of meetings with the President in exchange for a $500K donation, this article contains this little tid bit of information:
”That loophole is underscored by OFA’s apparently close relationship with the nation’s largest teachers’ union. The group’s office is located on the fourth floor the National Education Association’s Washington D.C. headquarters, in an office labeled “National Membership Strategy.”Source
Obama: bought off by the NEA