Move to Amend’s Quick Guide to the Highlights and Low Points of the Court’s Decision

January 22, 2010
Move to Amend
This decision is about much more than campaign finance and soft money.  The majority opinion lays the groundwork for corporations to enjoy government protection against all kinds of democratic oversight in the long-term.  In the short-term, it lays the foundation for politicians and judges installed by corporations to reverse decades of rules protecting consumers from unsafe working conditions, unsafe products, harmful pollution, and other ills that would’ve run rampant for the past few decades if corporations had had the powers they were given this week by five unelected members of the Supreme Court.

Move to Amend has produced this quick guide to the Supreme Court’s 183-opinion in part because the five justices who rewrote the law obscured what they were doing.  And, as the dissenting opinion observes, it's incredible that the Court’s majority could fail to address the fundamental question that underlies its holding – the idea that corporations are a class of persons endowed with constitutional rights.  Move to Amend and its thousands of voices of real people disagree:  corporations are entitled to only the rights the people give to them—their charter is a privilege that doesn’t confer human rights.   And, it is absolutely outside the scope of the unelected Supreme Court’s role to make such a determination and usurp the power of the people in our democracy.

The Most Compelling Argument about the Illegitimacy of the Justice Kennedy’s ruling:

As the dissenters’ state:

“. . . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.  Corporations help structure and facilitate the activities of human beings, to be sure, and their 'personhood' often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

And, the dissent observes:  “The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it.”

On Cloaking Its Judicial Activism in the Disguise of “Judicial Restraint”:

The majority claims deciding the case on narrower grounds would not actually be “judicial restraint” or thus the majority asserts that its decision is not what would otherwise be called judicial activism, stating: “a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.”  However, the majority decision, by the addition of a single new appointee (Justice Alito in place of Justice O’Connor), bypasses the traditional rule against reaching constitutional questions and deferring to Congress and instead declares unconstitutional laws that were affirmed as constitutional as recently as six years ago.  

On the Assumption that Corporations Have Rights that Were “Chilled”:

The majority asserts that the reason it cannot simply resolve the narrower statutory issue and instead must reach the constitutional question is that it cannot decide the statutory issue “without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.”  In doing so, the Court makes the circular argument that because it thinks corporations have a right to spend unlimited money influencing elections that corporation’s speech has been chilled by the law limiting corporations from spending money to influence elections.  That argument/assumption is the heart of the flaws in the Court's decision.  This is the definition of a results-oriented judicial decision.

On the Claim the Case Is About Preferring Certain Speakers Over Others:

The majority says, “Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. . . .  the Government cannot restrict political speech based on the speaker’s corporate identity.”

But, the law has long distinguished between “corporate identity” and real people for decades and rightly so, in election law and other areas of the law.  The law did not prefer or favor particular viewpoints, such as suggesting that people could only speak out for a particular candidate or on a particular issue, such as the environment.   All corporations do not have the same viewpoint and so it is absurd to suggest that restricting corporate spending or regulating corporations was equivalent to depriving a “disadvantaged person or class” the right to speak.  It is a perversion of the law and reason to assert that corporations, the wealthiest entities in the nation, are a "disadvantaged person or class.”

The Supreme Court’s Claim that It Is Protecting Little Corporations from Big Ones:

The majority asserts that if the rules it struck down “were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures.”

We’re not buying it.  The net effect of the decision will be to the advantage of the companies with the greatest profits/treasury to draw on.  While smaller businesses and mega corporations do not always have the same interests, the idea that the court’s new rule levels the playing field for the little guy is a flight of fancy and actually misleading.

The Idea the Decision Will Not Cause People to Lose Faith in Democracy:

The majority asserts that the “appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. . . . The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse ‘to take part in democratic governance’ because of additional political speech made by a corporation or any other speaker.”

It is plain that allowing corporations free rein will undermine not only people’s confidence in our democracy but also our actual democracy.  The decision has already and immediately shaken the faith of the people in our very system of government.  And, the idea that these expenditures are truly independent is another legal fiction of the Court.  It may be true that President George W. Bush did not authorize or coordinate the Swiftboat attacks on his opponent John Kerry, but he undeniably benefited from them, which was absolutely the intent of that mudslinging.

And, while it is true that people will still be allowed to vote in elections, every one knows—including the politicians in robes on the Supreme Court—that negative campaigns work.  And, people running for office generally prefer not to get their hands dirty slinging the mud but to let groups do it for them.  With the infusion of corporate cash allowed by the Court, the power to "swiftboat" a candidate that a corporation opposes will be enhanced exponentially.  And, the "marketplace of ideas," so haled by the Court, will be flooded with negative advertising or feel-good promos that will effectively allow companies to buy the politicians they favor, just like what happened with the West Virginia Supreme Court.

The Dissent on Why the Law Distinguishes between Companies and People:

“In the context of election to public office, the distinction between corporate and human speakers is significant.  Although they make enormous contributions to our society, corporations are not actually members of it.  They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.  The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”

We agree.  Even if one were to assume that all people and all companies had the same rights to free speech (a proposition with which we disagree), under long-standing Supreme Court precedent a right can be regulated if there is a “compelling” reason for doing so.  The dissent describes key reasons why the people and our representatives have not just a compelling reason for distinguishing between companies and people but indeed a duty to make such a distinction for the protection of our very democracy.

On Why the 5-4 Decision Violates Precedent and Prudential Values:

As the dissent notes, concerns about judicial usurpation of the powers of the elected branches of government “are heightened when judges overrule settled doctrine upon which the legislature has relied.  The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.  The problem goes still deeper, for the Court does all of this on the basis of pure speculation.”

We agree—the majority’s decision is the embodiment of judicial activism.  And, it is the most extreme instance of such unwarranted judicial activism in our lifetime.

On the Lack of Facts Supporting the Assumptions of the 5-Vote Majority:

The dissent observes that “To the extent the majority is worried about this issue, it is important to keep in mind that we have no record to show how substantial the burden really is, just the majority’s own unsupported fact finding.  Like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form. The owners of a ‘mom & pop’ store can simply place ads in their own names, rather than the store’s.”

The dissent provides a strong response to the disingenuous assertion of the majority that its decision is necessitated by the need to help small businesses.

On the Idea that the Identity of the “Speaker” Is Irrelevant to the Law: 

The dissent notes that “If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans).  Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

Especially in this era of so-called too-big-to-fail multinational companies, the idea that a corporation that has a multitude of domestic and foreign interests should be accorded the same rights as citizens and actual people who live and work in the U.S. is repugnant.

On Why Corporations Have Historically Been Viewed as "Soulless":

As the dissent documents, “The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentrate the worst urges of whole groups of men”.  Thomas Jefferson famously fretted that corporations would subvert the Republic.  General incorporation statutes, and widespread acceptance of business corporations as socially useful actors, did not emerge until the 1800’s. . . .  The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.  While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.

While we do not believe the Founders were infallible (take the abomination of slavery for example), we do believe they got this issue right.  Unlike the right-wing extremists now holding a majority on the Supreme Court, the men who wrote the Constitution plainly feared the consolidation of power in interest groups such as corporations, whose primary objective is amassing fortune.  It’s clear that the Constitution intended free speech rights for actual human beings, not for companies.  As the dissent notes:  “whereas we have no evidence to support the notion that the Framers would have wanted corporations to have the same rights as natural persons in the electoral context, we have ample evidence to suggest that they would have been appalled by the evidence of corruption that Congress unearthed in developing [the campagin finance law] and that the Court today discounts to irrelevance. It is fair to say that ‘[t]he Framers were obsessed with corruption….’”

On Corruption:

The dissent comments that “The majority cavalierly ignores Congress’ factual findings and its constitutional judgment:  It acknowledges the validity of the interest in preventing corruption, but it effectively discounts the value of that interest to zero.  This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. It is the denial of Congress’ authority to regulate corporate spending on elections.

We agree.  But, we think the issue is much bigger than spending in elections.  It is about the power of people in our democracy to regulate corporations, which have run amok.

On the Question of “Who” Speaks When a Corporation Buys Ads or Movies:

The dissent suggests that “It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends.  Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful. It is entirely possible that the corporation’s electoral message will conflict with their personal convictions.”

The dissent’s observations are irrefutably accurate.  A corporation “speaks” for its bottom line and not necessarily on behalf of its owners (shareholders) or customers—just look at the debate over health care.  The insurance companies certainly are not speaking on behalf of their customers who yearn for reforms, for example, to require pre-existing conditions to be covered so they can get needed health care treatments.

On How Unrestrained Corporations Will Overwhelm Local Interests:

The dissent makes the point that “In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears ‘little or no correlation’ to the ideas of natural persons or to any broader notion of the public good.  The opinions of real people may be marginalized.”

The dilution of the power of the people in local elections through this decision is profoundly serious.  The Constitution preserves to the people and the states all powers not expressly granted to the federal government and local rule is essential to true democracy.  The Court’s decision willfully would allow national or multi-national interests to overpower local interests in elections.  The court’s embrace of the twisted golden rule that he with the most gold rules must be rejected to preserve home rule, democracy at the local level.

On the Devastating Consequences of the Majority’s Decision:

Here is the dissent’s appraisal of the consequences: “The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.”

The dissent is correct, but it understates the consequences.  The activist majority’s decision, in fact, does promote corporate power at the expense of the rights individual human beings.  And, in our view, it does so intentionally.  This is part of an ideological agenda that the five justices in the majority brought to the court and that they enacted at the earliest possible opportunity.  This is a radical decision that attempts to leave our democracy defenseless against the power of the corporate treasury, and we will not let it stand.

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