Thursday, January 28, 2010

This is for Adam and Steve

...and not Adam and Eve.

Your thoughts on Colbert's 'The Word' last night?

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  1. I for one will never object to John Roberts-bashing (the man who, according to Glenn Greenwald, "may be the greatest hypocrite to ever sit on the Supreme Court"). But he wasn't announcing some controversial new approach to precedent or anything. The Court's view of stare decisis has always been something like this: we follow precedent, unless five of us don't want to. The "liberals" do it too; Lawrence v. Texas overturned a decision that was less than twenty years old.

    If a decision is unanimous, it's generally considered more persuasive than a fractured decision. Also, constitutional decisions are generally more prone to being overturned than decisions that merely interpret a statute, on the rationale that Congress can more easily correct statutory misinterpretations than it can constitutional ones.

    Finally, Citizens United didn't introduce the idea that corporate entities have First Amendment rights; that's not too controversial.

    What bothers me is that corporations were not altogether prohibited from engaging in political speech under BCRA; they retained substantial leeway with respect to the exercise of their First Amendment rights. BCRA merely said that corporations and unions could not fund "electioneering communications" (i.e., ads endorsing or opposing specific candidates) just prior to an election using general corporate funds. Corporations could still (i) engage in such communications more than 30/60 days prior to a primary/general election, using general corporate funds; (ii) engage in such communications at any time, using corporate funds that had been specifically set aside for political purposes; and (iii) engage in "issue advocacy" (e.g., ads opposing bank regulation) using general corporate funds.

    In short, corporations still had plenty of freedom to engage in political speech under BCRA. There were simply limits on the use of general corporate funds to finance a specific kind of advertisement ("electioneering communication") at a specific time (just prior to an election). I think BCRA was consistent with the First Amendment.

  2. Loyd, sorry it has taken me so long to get around to responding to this. I will agree with all of Steve's thoughts and add my own.

    I think too much is being made out of the bare fact that this decision overturned a century of precedent restricting corporate political speech. Overturning precedent happens all the time, for which we ought to be thankful. It is, of course, how we got the end of segregation, and the legal recognition of interracial message, and one day, hopefully, gay marriage. The problem with the majority's approach in Citizens United is that it answered a question that nobody was asking. The petitioners (Citizens United- who wanted to show an anti-Hillary documentary) asked about whether they could use a particular method of video distribution to show the documentary. Instead, the five conservative justices chose to overturn a bunch of precedents on corporate political speech. Generally, the rule for judges is to decide a case on the most narrow constitutional grounds available (i.e. overturn as few precedents as possible to reach the decision you think is correct). This decision is an clear violation of that principle. The majority was clearly looking to accomplish this result, and this was the best opportunity that they were likely to be presented with in the near future.

  3. I'll also agree with Steve re the fact that the technical argument that corporations are persons with some constitutional rights is not controversial. The legal principle that a corporation is a "person" is actually quite useful. It is the means that we use to hang criminal liability on corporations for any number of acts. What seems to have escaped the majority is that everybody knows that the principle is a legal fiction, and not a moral truth. A corporation is a person, but clearly not a person in the same sense that you and I and Steve are persons, a point which gets brought out well in Justice Steven's dissent. We can't get rid of the fiction without disrupting the operation of a number of other laws, but we need justices that are honest enough to talk about the principle of corporate personhood for what it is (fiction) rather than what it is not (eternal moral truth).


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