From a Demoralized Activist, Part 2
Posted in Elections, General Topics, National Issues February 12th, 2010 by admin

Some time before the indefinite deferral of HB444 SD1, the Supreme Court of the United States handed down a devastating ruling on corporate financing of campaigns. The ruling confers rights to corporations under the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.

and 14th Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SCOTUS is able to confer these rights to corporations because, by reasoning devoid of understanding, corporations are people under the law. This recent insult is added to the injury they inflicted on the republic when they equated money to speech.

A quick google search came up with a report by American Constitution Society titled, Beyond Citizens United v. FEC: Re-Examining Corporate Rights. While the report was published prior to the SCOTUS decision, it is nonetheless insightful with regard to the consequences of the ruling:

[I]f the Court deems Congress and the states to be powerless to restrict corporate political expenditures, the piecemeal and unwarranted fabrication of a corporate rights doctrine that has gathered pace over the past three decades will have reached an extreme conclusion. Such a conclusion by the Court would not only be wildly out of touch with the realities of corporate power in contemporary American life, but would disregard the Court’s proper separation over 200 years of the constitutional rights of people from those claimed by corporations.

The ACLU, which I think is fantastic and with which I agree more often than not filed an amicus curiae brief partially supporting the position of Citizens United in the case. An excerpt from an otherwise lengthy brief, lays out its position:

The broad prohibition on “electioneering communications” set forth in § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)… violates the First Amendment, and the limiting construction adopted by this Court in WRTL is insufficient to save it….

This brief addresses only that question. It does not address the additional question raise by this Court’s reargument order: namely, whether Austin v. Michigan Chamber of Commerce…. should be overruled. However, if Austin is overruled and the ban on express advocacy by corporations and unions is struck down, then the ban on “electioneering communication” in § 203 would necessarily fall as a consequence.

So, while the ACLU brief only focuses on one aspect of the issue, it seems clear to me that they are at least tacitly supportive of the position argued by Citizens United.

That the ACLU is, to me, so clearly wrong-headed in its position that First Amendment rights should extend to corporations (and unions) makes me rethink renewing my membership with them in the future.

Unfortunately, since SCOTUS cannot be overruled by the President or Congress, nothing short of some sort of Constitutional Amendment will really set this straight.

While I am no legal scholar, to be sure, I would think language breaking the link between money and speech, as well as excluding corporations (and maybe other similar entities) from the legal definition of ‘person, would directly address the damage done by this court to our democracy.

I am also forced to point out what to me seems a glaring distinction between those here in Hawaii, who on the one hand decry the death of democracy at the State Capitol, while making no such similar clamoring at this SCOTUS ruling, which is has the potential to damage our democracy on such a larger and more devastating scale.


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