Holte's corner

101 reasons continued...

2. Dishonest arguments in the reasoning with regard to the precedents they were overturning:

the court holds that:

(c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post-Austin line permitting them. Neither Austin’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47.

Stevens points out that this argument is false. The court, prior to Austin, held that corporations could be regulated in their speech. Any speech that involves a quid pro quo exchange of support in return for special consideration has always been considered bribery. The laws defined in §441b were created because it is often difficult to prove quid pro quo, or extortion, even when it is blatently obviously present. The court lied in its rationale and misrepresented what they were doing.

As the court notes (contradicting) itself:

"The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here."

The reason why the government passed BCRA is that direct contributions, indirect contributions, and advocacy, not only have been demonstrated to often involve bribery and obvious efforts to get contracts and business, but advocacy directly is aimed at influencing legislation. If it is bribery to pay a Congressman to do something, how is it not effectively the same thing to pay a news station to run ads asking for that same thing, and simultaneously advocate for the election or non election of that official? It has proven impossible to guess what people are thinking -- which is why corporations, which don't really have a single independent thought anyway -- were forbidden to engage in advocacy where it might influence elections! What the Supreme Court has done is to legalize bribery, extortion and propaganda. Not that corporations weren't already doing these things through laundered means (such as "Swift Boats for Justice" as just one example.

Indeed Stevens notes in his dissent:

"On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an “‘undue influence on an officeholder’s judgment’” and from creating “‘the appearance of such influence,’” beyond the sphere of quid pro quo relationships. Id., at 150; see also, e.g., id., at 143–144, 152–154; Colorado II, 533 U. S., at 441; Shrink Missouri, 528 U. S., at 389. Corruption can take many forms."

Indeed those who think that corporations can do no wrong while chiding the concentration of power in the Federal Government needed to push back against corporate tyranny, are blind to all the forms of tyranny that corporations have traditionally exercised: Monopoly over local communications; They cite local newspapers as if they were the exception that proved the rule, but the fact is that local newspapers often have a monopoly over local news which keeps locals ignorant of their own local politics. All forms of monopoly of power, whether they are local, regional, or national; are subject to abuse.

Stripping the federal Government of power and giving that power to monopolies and oligarchies won't make the country any more fair as a whole. A hundred years ago child labor, immigrant sweat shops, abusive prisons where people were worked to death, monopoly towns where the corporation owned everything in the town. Workers were paid barely enough to eat with, forced to pay company rents higher than their wages and to get into debt until they were legally slaves to the company. In those towns the tyranny was so complete that when workers protested, the police, who also worked for the corporations, were brought in to kill them. It seems the court wants a return to those "good old days."

"Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improperinfluences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that stands asa remarkable testament to the energy and ingenuity withwhich corporations, unions, lobbyists, and politicians maygo about scratching each other’s backs—and which amply supported Congress’ determination to target a limited setof especially destructive practices."

In the courts wisdom, they have now determined that when a corporation engages in bribery, coercion, vote buying, influence pedaling, etc... it is speech.

....The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s anti distortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.

And this is false for the simple reason that people working for corporations have a perfect right to be members of, say; the Chambers of Commerce; and donating their own money all they want to. These bands extend to people using "other people's money" in ways that those other people might not agree with.

Indeed Austin was decided the way it was because:

Austin found a compelling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660; see id., at 659 (citing MCFL, 479 U. S., at 257; NCPAC, 470 U. S., at 500–501)."

In other words, because the courts found fact that corporations were misusing their wealth to use political advertising to leverage public money. Bribing officials to give a 30 million dollar contract is a money saver because just a few thousand dollars is all it usually takes -- much cheaper than buying new tools or retooling. Political corporate influence need not even be explicit for this to be the case. The FAA was forced to use Vacumn tubes for years because they were made in a powerful Congressman's home district. The mere presence of that corporation in his district exerted massive influence.

And Austin was not the only precedent they over-ruled. Stevens writes:

Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981)."

And case law going back even further.

George Will and other Corporatist liars say things like:

Wrong. Corporate contributions to candidates' campaigns remain proscribed.

However the text of the decision over-rules Austin, over-rules all suppression of corporate speech, and expressly so:

Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section203, but also 2 U. S. C. 441b’s prohibition on the use of corporate treasury funds for express advocacy.”

Express advocacy means any kind of advocacy whatsoever. BCRA was not only over-ruled but completely destroyed.

Along with it the integrity of the constitution.

Posted by cholte at January 29, 2010 09:15 PM