January 21, 2010

If John McCain Is Wise...

...He'll swallow and admit his lousy bill was already dead yesterday.

The Supreme Court -- narrowly and bitterly divided along the usual lines -- has finally put the nail in the heart of Sen John S. McCain's (R-AZ, 63%) worst and costliest error: the Bipartisan Campaign Reform Act of 2002, a.k.a. the BCRA, a.k.a. McCain-Feingold. Its core is now deader than a clam:

Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections....

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Justice John Paul Stevens read a long dissent from the bench. He said the majority had committed a grave error in treating corporate speech the same as that of human beings. His decision was joined by the other three members of the court’s liberal wing.

It's hard to imagine any response to the bolded quotation above from the majority opinion that doesn't depend upon the overt or implicit rejection of freedom of speech. I haven't read Justice Stevens' full dissent -- it's 90 pages -- but from what I have read, it's just a long-winded exercise in sleight of tongue, dancing around his core disagreement with the very idea of universal freedom of speech. It boils down to "free speech for me but not for thee."

You can find the opinions here; for your reading pleasure, here's the breakdown of authorship:

1. Justice Anthony Kennedy, writing for the majority: pp. 1-64 (of the pdf);
2. Chief Justice John Roberts: pp. 65-78;
3. Justice Antonin Scalia: pp. 79-87;
4. Justice John Paul Stevens, writing for the minority: pp. 88-177;
5. Justice Clarence Thomas: pp. 178-183.

Here is, I think, the crux of Stevens' dissent; in this and all quotations from the opinions, I omit all citations and references:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

But freedom of speech is not restricted to "eligible voters;" we've always considered it universal and fundamental (though not absolute, of course).

First , a liberty is only fundamental if it applies equally to all; otherwise it's a government-created privilege, revokable at will.

Second, we're not talking about a "corporation" broadcasting speech, some alien entity with no existence apart from a legal fiction for convenience. The corporation comprises its owners, each of whom is a legal person; it's not the corporation that speaks, its the all-too-human owners.

When the owners of a corporation -- or their representatives on the board of directors -- use corporate funds to pay for an advertisement saying "vote for Joe," it is functionally identical to the same people broadcasting the same advert, but paying for it out of their personal checking accounts. The only difference is legal, and it's a distinction that was created by previous laws and the judicial intepretation of those laws... it's not a natural or obvious distinction to ordinary people. If I incorporate and pay for this blogspace out of corporate funds, do I no longer enjoy freedom to say what I want here, without government looking over my shoulder?

It's preposterous to argue that these six guys have a fundamental right to speak if they pay for it out of the money in their home vault... but they can legally be silenced if they use funds of a corporation they own -- at least silenced in the final two months of a campaign, when political speech would be particularly effective.

If they can be so silenced, then we have no fundamental right to freedom of speech; we have a conditional right under the control of the federal government. Once freedom of speech is no longer fundamental, the feds can suppress it on almost any ground; see a previous post of ours about Geert Wilders, currently being criminally prosecuted in the Netherlands for insulting Islamism.

Stevens devotes a great many pages complaining about the "scope" of the decision (the majority should have decided the case on narrow, crabbed grounds), and singing paeans to "stare decisis," the principle that "settled doctrine" should be respected. He admits he's not an "absolutist" on that issue; indeed, it would be hard for a justice who supported the Hamdan decision, giving constitutional rights as a criminal defendant to an unlawful enemy combatant captured on the battlefield, to portray himself as anything but a judicial radical (yes, I include Anthony Kennedy).

So evidently, stare decisis applies only to precedents that Justice Stevens happens to like, such as Roe v. Wade (and McConnell v. FEC or Austin v. Michigan Chamber of Commerce, the cases the Court overturned today). Sadly, Stevens is actually the best of the usual suspects on the left side of the Court: I doubt that Justices Ruth Bader Ginsberg, Stephen Breyer, or Sonia Sotomayor would even bother pretending to respect judicial restraint or settled law, when precedent is confronted by their own revolutionary aspirations.

Roberts put the fundamentality of freedom of speech as starkly and clearly as I've ever seen in a Court opinion:

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful inexpressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations -- as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.

Or to put it into Saul Alinsky's terms, freedom of speech is universal: It applies not only to the "have-nots" (rather, their spokesmen) but to the "haves" as well. It's both a danger and a signal of American exceptionalism that until today, the law did not recognize that universality, instead advantaging the have-nots. Would any real American argue that if a rich man were arrested for a crime, he shouldn't be allowed to hire an attorney? That he can be forced to testify against himself? That he could be tortured into confessing, just because he has money? It's facially absurd.

Next, Roberts brilliantly disposes of Stevens' claim that today's decision was unnecessarily broad, that the majority should have decided the case more narrowly, rather than striking down the heart of the BCRA. Roberts first notes that, since the minority agreed with the circus court that Citizens United had no case, they must necessarily have found, as did the majority, that the "narrower" defenses put up by Citizens United were without merit.

Citizens United's attorneys did the usual good job: They argued a host of narrower issues -- such as the idea that the law wasn't meant to apply to a group like them, that the anti-Hillary Clinton movie wasn't "express advocacy," and so forth; and they also argued that the law itself was unconstitutional. Once the Court had disposed of the lesser, narrower defenses, it was duty-bound to consider the final defense as well: whether the BCRA itself violated the First Amendment.

Here's Roberts:

The dissent advocates an approach to addressing Citizens United’s claims that I find quite perplexing. It presumably agrees with the majority that Citizens United’s narrower statutory and constitutional arguments lack merit -- otherwise its conclusion that the group should lose this case would make no sense. Despite agreeing that these narrower arguments fail, however, the dissent argues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law. It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not "serious about judicial restraint."

This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that "[i]f it is not necessary to decide more, it is necessary not to decide more," sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are "indispensably necessary" to resolving the case at hand, "the court must meet and decide them." [Bold emphasis added]

Finally, Roberts knocks down the "stare decisis" red herring... Stevens' view that precedent should always be respected when he agrees with it:

Fidelity to precedent -- the policy of stare decisis -- is vital to the proper exercise of the judicial function. "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." For these reasons, we have long recognized that departures from precedent are inappropriate in the absence of a "special justification."

At the same time, stare decisis is neither an "inexorable command," nor "a mechanical formula of adherence to the latest decision," especially in constitutional cases. If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants....

Stare decisis is instead a "principle of policy." When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a "sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other."

In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion." Its greatest purpose is to serve a constitutional ideal -- the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.

But apart from the fundamental right, there is another here that the Court could not address, as it has nothing to do with the Constitution or the law per se. The fact is, McCain-Feingold has been a manifest failure from the very beginning.

Its avowed purpose was to get the money out of political campaigns; but more money is spent now than ever before. And the legal distinctions crafted by the BCRA merely spawned a labyrinth of newly created entities, such as "527s", whose sole purpose is to circumvent all the rules and regulations on political speech that Sens. McCain and Russell Feingold (D-WI, 100%) thought would "control" speech -- when that speech came from corporations, i.e., the "haves." Both McCain and Feingold, as well as most of the members of Congress who voted for it, and even the president who signed it, have pretensions to "populism;" they love nothing more than to bash the "privileged" on behalf of the masses. (I can say the same about the Obamacle's proposed tax on banks and punitive regulation of banking pay and practices.)

Critics of the decision say it will "open the floodgates" of campaign funding. Well what the heck did they see during the 2008 presidential election? Barack H. Obama alone spent more than half a billion dollars.

The idea that the BCRA would curtail spending was idiocy on stilts; and I hold it very much against McCain for writing it, and against George W. Bush for signing it. The only people really hurt by it were legitimate issue-advocacy groups, who had to lawyer up and waste money on defensive legal strategies, just to promote their own political issue without running afoul of some authoritarian tyrant at the Federal Elections Commission and his draconian interpretation of McCain-Feingold's "restrictions."

The BCRA is mostly gone; the Court upheld the reporting requirements and limits on direct contributions to political campaigns, but that much could probably have passed without controversy in 2002, or even today. On the call of the issue, Sen. Chuck Schumer (D-NY, 100%) is right: The ruling in Citizens United v. the FEC absolutely "guts" the free-speech restrictions that were at the heart of the controversy over the BCRA.

And I say good riddance to bad rubbish.

If John McCain has a functioning brain, he should put on his manly gown, gird his loins, and pull up his socks: He needs to admit the BCRA was a gross violation of liberty -- and a colossal failure to boot. If he does, my respect for him will grow; if instead he pounds the table and denounces the Court's majority as elitists and corporate apologists, he will lose a great deal of the good will I felt for him during the 2008 campaign.

As many have noted, this has been one heckuva week for anti-liberals:

• Scott Brown won in Massachuestts;
• Erroll Southers withdrew as the nominee to head the TSA;
• The U.N. finally admitted that the glaciers in the Himalayas are not about to vanish anytime soon, as they had claimed for years;
• ObamaCare appears to be dead, at least for the forseeable future;
• Air America filed for Chapter 7 bankruptcy;
• And now McCain-Feingold bites the dust.

So what will we do for excitement next week?

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 21, 2010, at the time of 6:20 PM

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