Justice John Paul Stevens’ dissent in Citizens United v. Federal Election Commission
Edited excerpts by Carolyn Bennett
“We are free today substantially but the day will come when our Republic will be an impossibility,”said the fourth president of the United States, James Madison. “Wealth will be concentrated in the hands of a few. And when the day comes when the wealth of the nation will be in the hands of the few then we must rely on the best elements in the country to readjust the laws of the nation to the changed conditions.”
Some of the best elements in America have tried to readjust laws to minimize the potential for corporations to use their vast financial resources to purchase political influence. Unfortunately, Scalia, Roberts, Kennedy, Alito and Thomas have ensured that government of the corporation, by the corporation, and for the corporation will cause government of the people, by the people and for the people to perish from the earth. Pravda’s legal editor David Hoffman today was building his case against the U.S. Supreme Court.
Current justices Scalia, Kennedy and Thomas and former Associate Justice Sandra Day O’Connor and Chief Justice William Hubbs Rehnquist “bloodied their hands … when they supported the coup of 2000 in the case of Bush v. Gore,” he said. However, dissatisfied with partial destruction of democracy wrought by Bush v. Gore, Scalia, Kennedy and Thomas joined Alito and Roberts to obliterate democracy ─ and the Bill of Rights ─ in Citizens United v. Federal Election Commission.
The ruling last week “strikes down laws that once limited the amount of money corporations could contribute to political campaigns. Now corporations are free to buy and sell politicians like trading cards; and since corporations control the bulk of the ‘mainstream’ media, they can also ensure that any political messages contrary to their perceived interests are silenced. Freedom now only belongs to those [entities] wealthy enough to afford it. Politicians genuinely devoted to serving the public interest will either succumb to the whims of “their corporate masters” or find limitless amounts of money bolstering their political opponents.
In much stronger language, Hoffman accused these men of being at counter purposes to “America’s democracy and its fundamental freedoms.” They “operate in shadowy black disguises,” he said. They are the “conservative bloc” of the United States Supreme Court: Chief Justice John G. Roberts Jr., associate justices Samuel A Alito Jr., Anthony McLeod Kennedy, Antonin Scalia, and Clarence Thomas.
Hoffman directs powerful punches but we need not give up yet on this estate ─ so long as there is at least one powerful dissenter; and we have that. Not all members of the “Roberts” court succumbed to the lopsided majority.
Justice John Paul Stevens’ dissent in Citizens United v. Federal Election Commission should not go without notice because in that dissent he upholds the prerogatives of the Congress, the genius of the People, the distinction between corporations and people, and the purpose, and for whom, was written and ratified First Amendment of the U.S. Constitution. In affirming the judgment of the (lower) District Court, this is part of what Justice Stevens said in his dissent ─Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been ‘banned’… All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period.…
“The real issue, in this case, concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast
“The majority cavalierly ignores Congress’ factual findings and its constitutional judgment: It acknowledges the validity of the interest in preventing corruption, but it effectively discounts the value of that interest to zero. This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. It is the denial of Congress’ authority to regulate corporate spending on elections.…
“The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it [omits it, suppresses it, leaves it out of consideration]. Austin set forth some of the basic differences.
“Unlike natural persons, corporations have ‘limited liability’ for their owners and managers, ‘perpetual life,’ separation of ownership and control, ‘and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.’
“Unlike voters in U. S. elections, corporations may be foreign controlled. Unlike other interest groups, business corporations have been ‘effectively delegated responsibility for ensuring society’s economic welfare’; they inescapably structure the life of every citizen. “‘[T]he resources in the treasury of a business corporation,’” furthermore, “‘are not an indication of popular support for the corporation’s political ideas.’” …
“‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’”
“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.
“These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on that electioneering are less likely to encroach upon First Amendment freedoms. One fundamental concern of the First Amendment is to “protec[t] the individual’s interest in self-expression.
“In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate ‘domination’ of electioneering … can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election, and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders ‘call the tune’ and a reduced ‘willingness of voters to take part in democratic governance.’…
“Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to ‘hold officials accountable to the people … and disserve the goal of a public debate that is ‘uninhibited, robust, and wide-open’. … [A] Legislature is entitled to credit these concerns and to take tailored measures in response.
’“The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ ‘war chests’ and their special may translate into special advantages in the market for legislation.
“When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, ‘provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation.’ … Corporations, that is, are uniquely equipped to seek laws that favor their owners, not simply because they have a lot of money but because of their legal and organizational structure. Remove all restrictions on their electioneering, and the door may be opened to a type of rent seeking that is ‘far more destructive’ than what noncorporations are capable of. It is for reasons such as these that our campaign finance jurisprudence has long appreciated that the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process.
“The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleagues ridicule the idea of regulating expenditures based on ‘nothing more’ than a fear that corporations have a special ‘ability to persuade,’ as if corporations were our society’s ablest debaters and viewpoint-neutral laws such as §203 were created to suppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignore the fundamental concerns of the Austin Court and the legislatures that have passed laws like §203: to safeguard the integrity, competitiveness, and democratic responsiveness of the electoral process. All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech’…
“Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.
“In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle ‘elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.’ … At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
Sources and notes
“The Greatest Threat to America” (David R. Hoffman, Legal Editor of Pravda.Ru), January 27, 2010, http://english.pravda.ru/opinion/columnists/111884-greatest_threat-0 © 1999-2009. «PRAVDA.Ru». When reproducing our materials in whole or in part, hyperlink to PRAVDA.Ru should be made. The opinions and views of the authors do not always coincide with the point of view of PRAVDA.Ru's editors.
CITIZENS UNITED v. FEDERAL ELECTIONCOMMISSION, APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––Decided January 21, 2010,
Cite as: 558 U. S. ____ (2010) Opinion of STEVENS, J. , SUPREME COURT OF THE UNITED STATES , No. 08–205, CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA , [January 21, 2010] , JUSTICE STEVENS, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part. http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf
“The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it [omits it, suppresses it, leaves it out of consideration]. Austin set forth some of the basic differences.
“Unlike natural persons, corporations have ‘limited liability’ for their owners and managers, ‘perpetual life,’ separation of ownership and control, ‘and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.’
“Unlike voters in U. S. elections, corporations may be foreign controlled. Unlike other interest groups, business corporations have been ‘effectively delegated responsibility for ensuring society’s economic welfare’; they inescapably structure the life of every citizen. “‘[T]he resources in the treasury of a business corporation,’” furthermore, “‘are not an indication of popular support for the corporation’s political ideas.’” …
“‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’”
“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.
“These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on that electioneering are less likely to encroach upon First Amendment freedoms. One fundamental concern of the First Amendment is to “protec[t] the individual’s interest in self-expression.
“In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate ‘domination’ of electioneering … can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election, and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders ‘call the tune’ and a reduced ‘willingness of voters to take part in democratic governance.’…
“Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to ‘hold officials accountable to the people … and disserve the goal of a public debate that is ‘uninhibited, robust, and wide-open’. … [A] Legislature is entitled to credit these concerns and to take tailored measures in response.
’“The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ ‘war chests’ and their special may translate into special advantages in the market for legislation.
“When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, ‘provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation.’ … Corporations, that is, are uniquely equipped to seek laws that favor their owners, not simply because they have a lot of money but because of their legal and organizational structure. Remove all restrictions on their electioneering, and the door may be opened to a type of rent seeking that is ‘far more destructive’ than what noncorporations are capable of. It is for reasons such as these that our campaign finance jurisprudence has long appreciated that the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process.
“The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleagues ridicule the idea of regulating expenditures based on ‘nothing more’ than a fear that corporations have a special ‘ability to persuade,’ as if corporations were our society’s ablest debaters and viewpoint-neutral laws such as §203 were created to suppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignore the fundamental concerns of the Austin Court and the legislatures that have passed laws like §203: to safeguard the integrity, competitiveness, and democratic responsiveness of the electoral process. All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech’…
“Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.
“In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle ‘elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.’ … At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
Sources and notes
“The Greatest Threat to America” (David R. Hoffman, Legal Editor of Pravda.Ru), January 27, 2010, http://english.pravda.ru/opinion/columnists/111884-greatest_threat-0 © 1999-2009. «PRAVDA.Ru». When reproducing our materials in whole or in part, hyperlink to PRAVDA.Ru should be made. The opinions and views of the authors do not always coincide with the point of view of PRAVDA.Ru's editors.
CITIZENS UNITED v. FEDERAL ELECTIONCOMMISSION, APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––Decided January 21, 2010,
Cite as: 558 U. S. ____ (2010) Opinion of STEVENS, J. , SUPREME COURT OF THE UNITED STATES , No. 08–205, CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA , [January 21, 2010] , JUSTICE STEVENS, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part. http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf
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