A more perfect union...
I'm increasingly of the opinion that Akhil Amar's America's Constitution - A Biography is a book every American should read (and not just the ones that vote!). It has, for me at least, done an unthinkable thing.
Until recently, I was fairly convinced that once I started law school, I'd embark unequivocally down a path of international and comparative legal understanding that would at some point down the line jettison me into the political policy sphere where I could work to my heart's content on the legal and geopolitical issues that have so far kept me up at night (and occasionally barrage my friends' news feeds when I post them on my wall). I'd be able to combat the triumvirate of illegal arms dealing, narcotics trafficking and people smuggling or, more concisely, organized human wickedness. And I'd be able to do it from the summit of either the American or European (or perhaps some trans-Atlantic hybrid) policy mountaintop.
But reading about the history of one of the most important documents of the previous millennium, when held alongside my contemporary worries about the currently corrosive American political system, I've found myself increasingly interested in constitutional law and domestic affairs, something I swore would never happen.
One of the ways in which this book is currently impacting me is that it is showing me the absolutely lamentable ways we as contemporary America have bungled an amazingly visionary democratic ideal. The book has armored my patriotism to surprising effect, but it has also induced in me renewed, layered scorn for the political climate we now live in. For instance, everyone across the political spectrum agreed that George Washington should be the first President of the United States, and they believed this not just because of his impressive military background but also because of his restraint. When the Revolutionary War ended, he submitted his sword to Congress, a symbolic handover of power. When it became clear that he was the frontrunner for a third consecutive term, he went into retirement and invented another staple of American politics, the elder statesman. There are many other examples that I could point to, but I'll just say you should read that book. It also contains a full text of the American Constitution, which I don't think I've ever read in its entirety.
But, back to contemporaneous matters.
I'd, on the recommendation of a friend, recently added the SCOTUS blog to my daily blogroll, wondering the whole time why I hadn't done it sooner. It recently reignited my interest in the infamous Citizens United v. Federal Election Commission decision, which in January of 2010, allegedly opened the door to corporate sponsorship of candidates with no financial ceiling. Or, at least, that's how it was often described to me at the time. Friends spoke with ominous undertones about ads appearing with the tagline "So-and-So for President, sponsored by...Google" or Pepsi commercials where Britney Spears dances to a song about tax breaks for EVERYONE! and various other campaign promises, with the examples getting more and more apocalyptic. And I still hold to some of that now, which is in part why I find this line from the summary of the decision worthy of a smirk:
"Citizens argues that the Court should follow its ruling in Buckley v. Valeo, which stated that the right to freedom of speech and expression is not dependant on where the money for that expression was obtained. See Brief for Appellant at 30 (quoting Buckley, 424 U.S. 1, 49 (1976), reaffirmed in Davis v. FEC, 128 S. Ct. 2759, 2773 (2008)). Citizens points out that more than 99% of the funding for The Movie came from individuals and the fact that the rest came from for-profit sources should not affect the right to free speech. See id. at 33. Citizens further points to First Nat'l Bank of Boston v. Bellotti, where the Court determined that the mere fear that corporations may exert a lot of influence is not enough to justify suppressing their speech. See id. at 31 (quoting Bellotti, 435 U.S. 765, 789 (1978)). A wealthy individual could just as easily exert the same level of influence, tied even less to public support, as a corporation whose financial decisions involve more than one person. See id. Citizens further points out that contrary to the FEC's concern, since so much of the funding here actually came from the public, the documentary is quite reflective of public support. See id. at 32.
On the other hand, the FEC points out that Bellotti is irrelevant to the issue here, as that case specifically states that it does not imply any corporate rights to participate in political campaigns. See Brief for Appellee (quoting Bellotti, 435 U.S. 765, 788 (1978)). According to the FEC, Austin v. Mich. Chamber of Comm. is the controlling case, which holds that corporate financial support is too dangerous because it eliminates the tie between campaign finance and public support, and allows corporations with deep pockets to exert too much influence on the election and the public's perception of the candidates. See id. at 15 (quoting Austin, 494 U.S. 652, 660 (1990)). In addition, the FEC contends that Citizens' argument, which claims exemption from BCRA's restriction because individuals contributed its primary funds, lacks evidentiary support since it was not raised at the district court level. See id. at 30. Further, the FEC argues, even if the project was funded primarily by individuals, accepting any funding from a for-profit corporation is enough for the restriction to apply. See id. at 31 (quoting the bright line rule that no contributions can be from a for-profit organization). The FEC points out that mixing corporate funds with individual funds does not cure the problems associated with corporate funding because it is important that corporations who could not spend their funds directly on advocacy are not able to do so indirectly through smaller contributions. See id. at 32."
I think the fears alluded to in the aforementioned paragraphs are legitimate and find it surprising that, in defense of the decision, none of the supporters pointed to news papers or cable news syndicates as corporate entities exerting influence over political outcomes. It's true any direct linkages are taboo, as was made clear when Keith Olbermann was suspended for direct campaign contributions to several Democratic politicians.
Direct campaign contributions from corporate entities are still verboten, but the idea is now that companies that persuade us to do things like buy their stuff will now be able to persuade us to do thinks like...vote for this guy. And they'll have the resources of an entire Creative Department at their disposal.
Constitutional law scholar articulates my concerns almost perfectly here: This decision "marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent" and pointed out that "Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose." (Thank you, SCOTUSBlog!)
Most of the support for the decision focused on the First Amendment free-speech bit, and I found it interesting that minimal argumentative power was put into the newspapers angle. "But the newspapers do it all the time", I figured, would be the easiest, most convenient and maybe even one of the strongest positions to take in favor of the ruling.
And immediately, I tried to figure out why this felt wrong. News corporations are for-profit entities, but the goods and services they provide are, by definition, informative. Or, at least, they're meant to be. (Sidenote: David Simon testified here before the Senate Commerce Committee on the death of journalism at the hands of both intense media consolidation and a mishandling of new technology, if I interpreted correctly. And I fear his status as a modern-day Cassandra is cemented in that nothing may be done to effectively save high-end journalism, thus bringing my previous point to the verge of moot-dom.)
Ideally, news is the good that we pay for and ideally the service that provides the best news reaps the economic benefits. Ideally. But with the preeminence of "official" opinion and its efforts to fully subsume news coverage, we may not be long before the day when "why you should vote for this guy" makes it to the front page above the fold (If there are even front pages by then...).
Still, that is a fundamental difference between news entities and, say, car manufacturers. Imagine in that Chrysler Super Bowl commercial if Dave Bing or Kenneth Cockrel Jr. were driving that Chrysler instead of Eminem. A slew of issues erupt. Could the ad be, not only an endorsement for Chrysler ("your politicians drive our cars), but an endorsement for Detroit's automotive industry, a political hearkening to Detroit's Motor City days and a call for urban renewal? Was he paid to appear in that ad? Did he receive a complimentary car? The list of questions goes on and on and on and opens the door to all sorts of murkiness, a common thread when public service/interest/trust and commerce are wedded.
I won't pretend to have reached any sort of conclusion regarding my thoughts on the Citizens' United decision. I think the lift on what amounts to corporate sponsorship of political candidates is a huge step backward for the upholding of the First Amendment. (Corporations are not, in any way, semantic stand-ins for individuals.) But I agree Yale Law professor Heather Gerken's assertion that the "[real] damage mostly came earlier, with decisions that made less of a splash."
Additionally, I think this calls for a renewed examination of our newspapers and how our news is meant to function in our current world. Maybe if we're to learn how to deal with this new feature of unfettered corporate spending with the purpose of exerting potentially corrosive political influence, we need look no further than where it may already be happening.
David Simon (from testimony transcript: "...raw unencumbered capitalism is never the answer when a public trust or public mission is at issue."
I agree wholeheartedly.
Until recently, I was fairly convinced that once I started law school, I'd embark unequivocally down a path of international and comparative legal understanding that would at some point down the line jettison me into the political policy sphere where I could work to my heart's content on the legal and geopolitical issues that have so far kept me up at night (and occasionally barrage my friends' news feeds when I post them on my wall). I'd be able to combat the triumvirate of illegal arms dealing, narcotics trafficking and people smuggling or, more concisely, organized human wickedness. And I'd be able to do it from the summit of either the American or European (or perhaps some trans-Atlantic hybrid) policy mountaintop.
But reading about the history of one of the most important documents of the previous millennium, when held alongside my contemporary worries about the currently corrosive American political system, I've found myself increasingly interested in constitutional law and domestic affairs, something I swore would never happen.
One of the ways in which this book is currently impacting me is that it is showing me the absolutely lamentable ways we as contemporary America have bungled an amazingly visionary democratic ideal. The book has armored my patriotism to surprising effect, but it has also induced in me renewed, layered scorn for the political climate we now live in. For instance, everyone across the political spectrum agreed that George Washington should be the first President of the United States, and they believed this not just because of his impressive military background but also because of his restraint. When the Revolutionary War ended, he submitted his sword to Congress, a symbolic handover of power. When it became clear that he was the frontrunner for a third consecutive term, he went into retirement and invented another staple of American politics, the elder statesman. There are many other examples that I could point to, but I'll just say you should read that book. It also contains a full text of the American Constitution, which I don't think I've ever read in its entirety.
But, back to contemporaneous matters.
I'd, on the recommendation of a friend, recently added the SCOTUS blog to my daily blogroll, wondering the whole time why I hadn't done it sooner. It recently reignited my interest in the infamous Citizens United v. Federal Election Commission decision, which in January of 2010, allegedly opened the door to corporate sponsorship of candidates with no financial ceiling. Or, at least, that's how it was often described to me at the time. Friends spoke with ominous undertones about ads appearing with the tagline "So-and-So for President, sponsored by...Google" or Pepsi commercials where Britney Spears dances to a song about tax breaks for EVERYONE! and various other campaign promises, with the examples getting more and more apocalyptic. And I still hold to some of that now, which is in part why I find this line from the summary of the decision worthy of a smirk:
"Citizens argues that the Court should follow its ruling in Buckley v. Valeo, which stated that the right to freedom of speech and expression is not dependant on where the money for that expression was obtained. See Brief for Appellant at 30 (quoting Buckley, 424 U.S. 1, 49 (1976), reaffirmed in Davis v. FEC, 128 S. Ct. 2759, 2773 (2008)). Citizens points out that more than 99% of the funding for The Movie came from individuals and the fact that the rest came from for-profit sources should not affect the right to free speech. See id. at 33. Citizens further points to First Nat'l Bank of Boston v. Bellotti, where the Court determined that the mere fear that corporations may exert a lot of influence is not enough to justify suppressing their speech. See id. at 31 (quoting Bellotti, 435 U.S. 765, 789 (1978)). A wealthy individual could just as easily exert the same level of influence, tied even less to public support, as a corporation whose financial decisions involve more than one person. See id. Citizens further points out that contrary to the FEC's concern, since so much of the funding here actually came from the public, the documentary is quite reflective of public support. See id. at 32.
On the other hand, the FEC points out that Bellotti is irrelevant to the issue here, as that case specifically states that it does not imply any corporate rights to participate in political campaigns. See Brief for Appellee (quoting Bellotti, 435 U.S. 765, 788 (1978)). According to the FEC, Austin v. Mich. Chamber of Comm. is the controlling case, which holds that corporate financial support is too dangerous because it eliminates the tie between campaign finance and public support, and allows corporations with deep pockets to exert too much influence on the election and the public's perception of the candidates. See id. at 15 (quoting Austin, 494 U.S. 652, 660 (1990)). In addition, the FEC contends that Citizens' argument, which claims exemption from BCRA's restriction because individuals contributed its primary funds, lacks evidentiary support since it was not raised at the district court level. See id. at 30. Further, the FEC argues, even if the project was funded primarily by individuals, accepting any funding from a for-profit corporation is enough for the restriction to apply. See id. at 31 (quoting the bright line rule that no contributions can be from a for-profit organization). The FEC points out that mixing corporate funds with individual funds does not cure the problems associated with corporate funding because it is important that corporations who could not spend their funds directly on advocacy are not able to do so indirectly through smaller contributions. See id. at 32."
I think the fears alluded to in the aforementioned paragraphs are legitimate and find it surprising that, in defense of the decision, none of the supporters pointed to news papers or cable news syndicates as corporate entities exerting influence over political outcomes. It's true any direct linkages are taboo, as was made clear when Keith Olbermann was suspended for direct campaign contributions to several Democratic politicians.
Direct campaign contributions from corporate entities are still verboten, but the idea is now that companies that persuade us to do things like buy their stuff will now be able to persuade us to do thinks like...vote for this guy. And they'll have the resources of an entire Creative Department at their disposal.
Constitutional law scholar articulates my concerns almost perfectly here: This decision "marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent" and pointed out that "Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose." (Thank you, SCOTUSBlog!)
Most of the support for the decision focused on the First Amendment free-speech bit, and I found it interesting that minimal argumentative power was put into the newspapers angle. "But the newspapers do it all the time", I figured, would be the easiest, most convenient and maybe even one of the strongest positions to take in favor of the ruling.
And immediately, I tried to figure out why this felt wrong. News corporations are for-profit entities, but the goods and services they provide are, by definition, informative. Or, at least, they're meant to be. (Sidenote: David Simon testified here before the Senate Commerce Committee on the death of journalism at the hands of both intense media consolidation and a mishandling of new technology, if I interpreted correctly. And I fear his status as a modern-day Cassandra is cemented in that nothing may be done to effectively save high-end journalism, thus bringing my previous point to the verge of moot-dom.)
Ideally, news is the good that we pay for and ideally the service that provides the best news reaps the economic benefits. Ideally. But with the preeminence of "official" opinion and its efforts to fully subsume news coverage, we may not be long before the day when "why you should vote for this guy" makes it to the front page above the fold (If there are even front pages by then...).
Still, that is a fundamental difference between news entities and, say, car manufacturers. Imagine in that Chrysler Super Bowl commercial if Dave Bing or Kenneth Cockrel Jr. were driving that Chrysler instead of Eminem. A slew of issues erupt. Could the ad be, not only an endorsement for Chrysler ("your politicians drive our cars), but an endorsement for Detroit's automotive industry, a political hearkening to Detroit's Motor City days and a call for urban renewal? Was he paid to appear in that ad? Did he receive a complimentary car? The list of questions goes on and on and on and opens the door to all sorts of murkiness, a common thread when public service/interest/trust and commerce are wedded.
I won't pretend to have reached any sort of conclusion regarding my thoughts on the Citizens' United decision. I think the lift on what amounts to corporate sponsorship of political candidates is a huge step backward for the upholding of the First Amendment. (Corporations are not, in any way, semantic stand-ins for individuals.) But I agree Yale Law professor Heather Gerken's assertion that the "[real] damage mostly came earlier, with decisions that made less of a splash."
Additionally, I think this calls for a renewed examination of our newspapers and how our news is meant to function in our current world. Maybe if we're to learn how to deal with this new feature of unfettered corporate spending with the purpose of exerting potentially corrosive political influence, we need look no further than where it may already be happening.
David Simon (from testimony transcript: "...raw unencumbered capitalism is never the answer when a public trust or public mission is at issue."
I agree wholeheartedly.