Common Sense in Free Speech (continued)

Previously, I identified three problems in the American electoral system that seemed paramount as needing repair:

  1. Follow the example of the United Kingdom, and limit the amount of time campaigns are allowed to go.
  2. Overturn SCOTUS rulings that have broadened “free speech” far beyond the intent of those who wrote the Bill of Rights.
  3. Overturn the SCOTUS ruling that define corporations as being people.

In my previous post, I analyzed the first two. Today, here my thoughts on the third. First, some background.

The concept of “corporations as people” came from the SCOTUS ruling Santa Clara County v. Southern Pacific Railroad Company (1886) and, frankly, it was necessary. Without the ruling, corporations would have no legal standing in the courts. This should be welcomed by people of all parts of the political spectrum; for instance, it guaranteed that corporate investments could be done with appropriate legal protection, and it guaranteed that corporations could be sued for environmental damage or other harms. So, how did we get from this sensible ruling to our current dilemma, a dilemma that is the closest thing yet to a unifying factor in current politics?

As much as I am loath to attack anyone who is recently, deceased, the primary blame rests squarely at the feet of the late Justice Antonin Scalia. He led SCOTUS in a leap of illogical thought that would rival the world’s record for the long jump.

Justice Scalia was a brilliant man and, by all accounts, extraordinarily charming and charismatic. During his time on the bench, he was frequently called upon to write majority opinions and even his concurring opinions carried great weight in guiding fellow justices. Unfortunately, he behaved hypocritically in two vital areas.

The first was that he proclaimed his philosophy to be based on upholding the original intent of the Constitution; however, in striking down the McCain-Feingold Act and then siding with Citizens United, he was totally behaving like a judicial activist. Apparently, judicial restraint was to be argued only when it supported Scalia’s opinions.

This brings us to the second hypocrisy, the concept that judges, especially Supreme Court justices, were to set their politics aside when taking the bench (ironically, SCOTUS is the only level in the federal judiciary that lacks written guidelines for ethical behavior, largely because no one ever suspected that anyone on the high court would need them.) Now, this is not to say that having political views should disqualify someone from serving on the SCOTUS; former President William Taft and former California governor Earl Warren were both successful Chief Justices. But Scalia was quite open about his continued political activism; he openly maintained his membership in the Federalist Society and other partisan think tanks, and gave numerous speeches that foreshadowed how he believed that SCOTUS should rule in pending cases. With his intellect and charisma, he would have been a terrific senator, even president, but he had no business behaving this way as a member of SCOTUS.

And so, he proceeded to take the precedent of Santa Clara County and stretched it further and further until we ended up with the designation of corporations as being people. Here is an analogy. In 2015,  national polling showed that 97% of Americans felt that animals needed legal protection, with almost 2/3 favoring stricter criminal penalties for those who abuse animals. I think of my beloved canine and feline companions and am in complete agreement; however, I don’t think that this means that my dog has now turned into a human being.

The good news is that we may be closer to overturning Citizens United than seemed possible. Most people believed that the election of Clinton to the presidency would guarantee the appointment of a justice who would join the original four dissenters in reversing the case. But, there is a distinct possibility that this could still happen under a Trump presidency. Looking at Trump’s list of potential appointees, even the most right-leaning candidates have shown that they disdain political activism and, given that Citizens United is a direct slap in the face to the populists who elected him, it is difficult to imagine Trump appointing someone who would support the ruling. The question, then, is whether the justice appointed would feel bound enough by stare decisis that she or he would be reluctant to reverse the previous ruling.

Frankly, the greatest danger to overturning Citizens United comes from the U.S. Senate, where senators from both parties have benefited from the contributions now legal. Will they vote according to their consciences on the nominee? Will they see the anger that Americans have shown toward “business as usual?”

FOOTNOTE: The Citizens United  case originated from a propaganda film aimed at demonizing Hillary Clinton. If overturned, this would also boost the broadening of free speech to allow virtually no controls on slander and libel against political candidates, earlier addressed as item #2 on the list of possible remedies. And, lest anyone starts feeling smug, there are a number of slanderous websites attacking Donald Trump, as well.



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