State of the Union Attack on the Supreme Court Extremely Inappropriate

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

After watching the State of the Union address tonight, I notice not much has actually changed in a year. Fashion, for instance, remains a foreign concept in Congress. We were back to the standard assemblage of wretchedly dull red and blue ties for men, and uninspiring cliché shades of red and blue suits for women. One elected official sitting next to John McCain even tried to combine the standards by pairing a blue tie with a bright red vest. Unfortunately, the result was so appallingly garish that I cannot even given him token points for creativity. At least the politician uniform makes them easy to spot and avoid on the street. I suppose I should just be happy that the President chose to forgo the imperial purple he often wore during the campaign; it would have made his tone even more alarming.

Mr. Obama’s policies were also remarkably unchanged. As many other sources will discuss, he held firm to his ultra liberal commitments to impose cap and trade legislation, impose massive government intervention into the economy and financial sector, and remain firm in his efforts to impose a radical government takeover of healthcare.

Nonetheless, I must admit that the speech carried an appealingly strong tone of disgust with Washington, political games, backroom deals, and irresponsible spending. I might be more impressed if I were able to forget that Mr. Obama and the Democrats have controlled both the White House and Congress for over a year, now, and even held a super majority in the Senate until last week. If politics in Washington are a bit dodgy, one can hardly blame the Republicans or, after a year’s time, continue to whine about the old policies of Mr. Bush.

Perhaps the most amusing point in the speech came when Mr. Obama asserted that responsible budgeting and economics required that we do not reign in spending until we are actually in recovery, and until then we should pour more money into a stimulus bill, which we will now call a jobs bill. I was pleased to see I was not the only one unable to contain my laughter at this absurdity. The Republicans in the chamber all seemed to erupt into derisive chuckles. As the Republican response pointed out, the way to recovery is not through increasing government interference in the economy—not financial, not energy, and not healthcare. Nor is it to excessively spend or tax the wealthy, or increasingly grant loans which we then forgive after 20 years. Rather, it is to roll back government in general, lower taxes across the board, and allow the economy to function on its own, free of the favors or penalties of government.

Mr. Obama did mention a few positives. He seemed willing to talk about nuclear power and off shore drilling, for instance. However, if he intends to include these things as part of larger cap and trade legislation, then he poisons the well of energy before we even start drilling it. He also talked about granting gays equal treatment in the military. However, as commander in chief, he has the power to do this at the stroke of a pen. Whatever you may think of the idea, do not expect his talks with Congress and the Pentagon to produce any results on this matter. The Democrats love to assure GLBT people that they should be treated as equals while doing absolutely nothing to support that idea beyond giving speeches. His other prior work on ending torture and closing Guantanamo Bay, while laudable, was not mentioned at all. His utter lack of progress on that goal might have been a bit embarrassing, I suppose, as would his incomprehensible failure to understand how to properly balance an interest in basic human rights with the need to secure against terrorist enemy combatants. Treating them all as if they were domestic criminals is so profoundly foolish that I believe he was wise not to raise the subject.

Commentators seem to be overlooking the most disturbing aspect of Mr. Obama’s speech, though. He openly criticized the decision making of the Supreme Court and allowed the chamber to applaud his remarks on that subject. It is one thing to express disagreement with the Court on matters of policy in his role as the Chief Executive. It is another to publicly censure the decision making capabilities and the very competence of a Supreme Court decision during the State of the Union address. This was a direct attack on the credibility of the third branch of government, the branch that depends entirely upon the respect of the public for its authority. It was completely inappropriate for the President to make such remarks, and I cannot recall the last time a President made such an overt assault on the authority of a coequal branch of government. It may indeed have been FDR. I suppose I should not be surprised by yet another frightening similarity between the two. Coupled with his arrogant demand that Congress deliver a jobs bill to his desk, I am increasingly alarmed at the astonishing imperial attitude which seems to exude from Mr. Obama.

The only true change I spotted this evening was in the Republican response. Delivering the response in front of a live audience in the Virginia House of Delegates was a splendid change this year. Despite the fact that much of the speech was still pre written, it did respond to parts of the President’s address, and did a lovely job of contrasting the approach of the two parties to our national economic crisis: Democrats believe more government regulation with targeted tax incentives is the answer; Republicans believe government in general should be scaled back and taxes should be lowered across the board. Voters will decide in November which approach sounds more appealing. I have little doubt as to which option they will favor.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “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 may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.