A bad, but inevitable, decision

[drwex]

SCOTUS's decision this week (Citizens United v FEC) to overturn McCain-Feingold and remove limits on how large group entities(*) can buy politicians is a bad decision. However, it's not bad because it's bad legal decision-making. To be honest, I'm surprised it was as close as 5-4. It's bad because the decision rests on two fundamentally broken principles that have been worked into American jurisprudence for decades; the fatal collision we're now witnessing was inevitable.

1. In our law, corporations (and by extension certain other groupings) are people, with the rights of individuals including those First Amendment rights of free (which is to say, unfettered) speech.

2. Money is considered speech rather than property.

#1 is ridiculous on the face of it. Why are some forms of association (corporations) granted rights that other forms of association (glee clubs) are not? Why do associations get the rights of personhood without the liabilities? Corporations do not go to jail. You can sue or criminally charge a union, but your remedies are limited to the assets held by that union. If you want to go after the crooked president of the union you have to go a separate route.

#2 is less evidently wrong, but it's still wrong. Speech has a very strong set of protected rights in our system; property also has rights but they're more limited. If money is speech then a richer person has more right to speak than you or I, which breaks some basic notion of equality.

If you put 1 + 2 together it makes total sense that corporations should be allowed to spend their money just as individuals do, in the form of donations to politicians or buying political ads or producing Swift Boat smear campaigns, or telling people it's OK to chop down forests or any of the other excesses that McCain-Feingold was trying to rein in. The law makes no sense in light of those two principles, even though the law has a noble intent (reduce corruption in politics). For a law to make sense it would have to establish an overriding interest that the government has in abrogating the principles in 1 + 2. I haven't read the dissent in Citizens yet, but I'm pretty sure that's the line the dissenting justices took. (ETA: I've now skimmed it a bit and yes this is their argument; I'm also somewhat surprised that the majority reached out to overturn other precedents, but not really that shocked.)

To fix this it's not possible just to tinker around the edges. These principles will need to be overturned. One possible way that might be done (talk about your long shots) is by an amendment to the US Constitution. And lo and behold someone's actually trying to do that: http://www.movetoamend.org/we-corporations

In theory it's possible that you could constitute a SCOTUS that would recognize past error and overturn the precedents that Citizens rests on, but I rate that an even longer shot. Even grotesque scandals such as the Abramoff mess haven't motivated any fundamental changes, and both parties are quite thoroughly guilty of sucking down the dollars, giving them no motivation to change things. One reason McCain-Feingold got as far as it did was that the two main authors were both mavericks within their parties who could still command respect. In the end, though, it doesn't really matter. We get the politics and politicians we deserve - we throw out a few bad apples now and then but mostly watch idly as the cost of elections skyrockets and more and more money gets used to finance less and less real change.

(*) The most popular members of this category are indeed corporations, but this also applies to unions, PACs, special-interest groups like the NRA or AAA, sports teams, and similar groups.

Comments

[stevie-stever.livejournal.com]

It wasn't merely McCain-Feingold that got overturned. The broad ruling effectively undoes almost all of the legislation relating to limiting big donor money in politics. Simple interpretations are even stripping a few of the states stricter restrictions on campaign donations and such.

Nor do I think it was inevitable(except perhaps, with THIS court). Justice Kennedy however truly disappoints me. And if no legislation deals with this prior to the midterm elections, there's a fair chance it may never be toppled.

[feste-sylvain.livejournal.com]

I am not at all surprised by Justice Kennedy, given how this opinion was framed. He has frequently taken the "free speech" side of arguments many Court-watchers expected him to decide the other way.

Corporate law has been requiring an overhaul for quite some time now; this may be the proverbial straw which gets the issue addressed (after the Wall Street bail-out debacle).

[dpolicar]

Yeah, that's more or less my take on it too.

[thorn]

You've basically hit the nail on the head with this commentary. I understand the purpose of corporations to limit liability, etc. While they are considered fictitious persons, I believe, there is no way they should receive full rights of an actual individual. What's next? Giving them the right to actually vote? Might as well, with this decision.

If voting could make a difference

[drwex]

it would be outlawed.

(Yes, I'm in full-on cynical bastard mode.)