News Intelligence Analysis
Two New York Times Must-Read Editorials:
1: A Threat to
Fair Elections
September 8, 2009
September 22, 2009
[We also recommend two of Katherine Yurica's essays: First, "Has Judge Alito Violated His Oath of Office? And Is There a Legal Tie-in Between Abortion and Corporate Power in the U.S.?" This essay delves into the faulty reasoning behind the desire to grant corporations human constitutional rights. Secondly, we recommend "The Late Great Supreme Court, An Examination of the Dead Constitution Heresy and Why It Is Causing the Court to Die a Slow and Painful Unconstitutional Death," which examines the growth and development of the doctrine adopted by the conservative majority on the Supreme Court and reveals why and how the doctrine violates the judicial code of ethics.
A Threat to
Fair Elections
September 8, 2009
The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.
The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window.
Corporations and unions have been prohibited from spending their money on federal campaigns since 1947, and corporate contributions have been barred since 1907. States have barred corporate expenditures since the late 1800s. These laws are very much needed today. In the 2008 election cycle, Fortune 100 companies alone had combined revenues of $13.1 trillion and profits of $605 billion. That dwarfs the $1.5 billion that Federal Election Commission-registered political parties spent during the same election period, or the $1.2 billion spent by federal political action committees.
The Supreme Court has repeatedly upheld the limitations on corporate campaign expenditures. In 1990, in Austin v. Michigan Chamber of Commerce, and again in 2003, in McConnell v. Federal Election Commission, it made clear that Congress was acting within its authority and that the restrictions are consistent with the First Amendment.
In late June, the court directed the parties to address whether Austin and McConnell should be overruled. It gave the parties in Citizens United v. Federal Election Commission a month to write legal briefs on a question of extraordinary complexity and importance, and it scheduled arguments during the court’s vacation.
All of this is disturbing on many levels. Normally, the court tries not to decide cases on constitutional grounds if they can be resolved more simply. Here the court is reaching out to decide a constitutional issue that could change the direction of American democracy.
The court usually shows great respect for its own precedents, a point Chief Justice John Roberts made at his confirmation hearings. Now the court appears ready, without any particular need, to overturn important precedents and decades of federal and state law.
The scheduling is enormously troubling. There is no rush to address the constitutionality of the corporate expenditures limit. But the court is racing to do that in a poorly chosen case with no factual record on the critical question, making careful deliberation impossible.
Most disturbing, though, is the substance of what the court seems poised to do. If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics.
Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.
The conservative majority on the court likes to present itself as deferential to the elected branches of government and as minimalists about the role of judges. Chief Justice Roberts promised the Senate that if confirmed he would remember that it’s his “job to call balls and strikes and not to pitch or bat.”
If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.
The Rights
of Corporations
September 22, 2009
The question at the heart of one of the biggest Supreme Court
cases this year is simple: What constitutional rights should
corporations have? To us, as well as many legal scholars, former
justices and, indeed, drafters of the Constitution, the answer
is that their rights should be quite limited — far less
than those of people.
This Supreme Court, the John Roberts court, seems to be having trouble with that. It has been on a campaign to increase corporations’ legal rights — based on the conviction of some conservative justices that businesses are, at least legally, not much different than people.
Now the court is considering what should be a fairly narrow campaign finance case, involving whether Citizens United, a nonprofit corporation, had the right to air a slashing movie about Hillary Rodham Clinton during the Democratic primary season. There is a real danger that the case will expand corporations’ rights in ways that would undermine the election system.
The legal doctrine underlying this debate is known as “corporate personhood.”
The courts have long treated corporations as persons in limited ways for some legal purposes. They may own property and have limited rights to free speech. They can sue and be sued. They have the right to enter into contracts and advertise their products. But corporations cannot and should not be allowed to vote, run for office or bear arms. Since 1907, Congress has banned them from contributing to federal political campaigns — a ban the Supreme Court has repeatedly upheld.
In an exchange this month with Chief Justice Roberts, the solicitor general, Elena Kagan, argued against expanding that narrowly defined personhood. “Few of us are only our economic interests,” she said. “We have beliefs. We have convictions.” Corporations, “engage the political process in an entirely different way, and this is what makes them so much more damaging,” she said.
Chief Justice Roberts disagreed: “A large corporation, just like an individual, has many diverse interests.” Justice Antonin Scalia said most corporations are “indistinguishable from the individual who owns them.”
The Constitution mentions the rights of the people frequently but does not cite corporations. Indeed, many of the founders were skeptical of corporate influence.
John Marshall, the nation’s greatest chief justice, saw a corporation as “an artificial being, invisible, intangible,” he wrote in 1819. “Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.”
That does not mean that corporations should have no rights. It is in society’s interest that they are allowed to speak about their products and policies and that they are able to go to court when another company steals their patents. It makes sense that they can be sued, as a person would be, when they pollute or violate labor laws.
The law also gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth. Their influence would be overwhelming with the full array of rights that people have.
One of the main areas where corporations’ rights have long been limited is politics. Polls suggest that Americans are worried about the influence that corporations already have with elected officials. The drive to give corporations more rights is coming from the court’s conservative bloc — a curious position given their often-proclaimed devotion to the text of the Constitution.
The founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings. The court should stick to that line.
Copyright 2009 The New York Times Company
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Has Judge Alito Violated
His Oath of Office?
And Is There a Legal Tie-in
Between
Abortion and Corporate Power in the U.S.?
By Katherine Yurica.
November 11, 2005
In 1995 Jonathan Harr published his legal thriller,
A Civil Action, which quickly shot up to bestseller
status as readers agreed with John Grisham’s
statement on the book: He found it to be the most
compelling chronicle of litigation he had ever read.
However, this was not a Grisham thriller, the events
in the book were real. In 1999, John Travolta played
the part of Jan Schlichtmann, the courageous lawyer
who took on the Beatrice Foods and W. R. Grace
companies for allegedly dumping poisonous chemicals
into the drinking water of a small Massachusetts town.
If you read the book or saw the movie, the Woburn
case
is almost impossible to forget.
The Late Great Supreme Court
An Examination of the “Dead
Constitution”
Heresy and Why It Is Causing the Court to
Die a Slow and Painful Unconstitutional Death
By Katherine Yurica
July 26, 2009
Chief Justice John Roberts acknowledged
the "unparalleled
ability" to prove guilt or innocence using DNA evidence
but
in a stunning and appalling 5 to 4 decision, the Supreme
Court's conservative majority threw out significant due process
claims and denied the right of a prisoner to obtain post-
conviction DNA testing that might prove his innocence.
The court sided with Alaska, the only state in the nation
with no known case of a prisoner receiving DNA testing.
The New York Times wrote, Roberts treated the DNA
breakthrough "more as an irritant than an opportunity."
The question is why? Yurica examines the ideological
grounds behind the decision and asks why Antonin Scalia
did not recuse himself from participating. Read all about it here.
A Misguided Decision and the Path Forward
By Nina Morrison, Staff Attorney, The Innocence Project
In an already much-criticized
decision, the U.S. Supreme Court
ruled 5-4 last week that Innocence Project client William Osborne
could not use the federal civil rights law to obtain DNA testing
for the purpose of proving his innocence of the rape for which
he was convicted and
sent to prison in 1994.
God’s Justice and
Ours
May 2002
by Antonin
Scalia
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