By Danny Adkison
— “You lie!” Remember that?
Do you remember the name
of the man who uttered those
words? Maybe it would help if
you had a hint: he was a member
of the U.S. Supreme Court.
Does that help?
OK, it was Joe Wilson, a Republican
House member, who
yelled the exact phrase “You lie”
to President Obama when he
gave his major speech to a joint
session of Congress on health
care earlier in the year.
Apparently, though, calling
the president a liar is becoming
business as usual when he appears
before a joint session of
Congress.
About a week ago, the president
gave his first State of the
Union Address (the message is
required by the Constitution).
Since the Supreme Court just recently
struck down portions of
federal law regulating corporate
political spending, the president
saw fit to criticize the 5-4 ruling.
His speech was delivered before
a joint session of Congress,
but his Cabinet, the diplomatic
corps, and Supreme Court justices
are also invited. Although
the president spent only two
sentences of the entire speech on
the court’s opinion (Citizens
United v. FEC), it was too much
for Justice Alito (sitting among
several other Supreme Court
justices). The camera caught
him wincing and mouthing the
words “not true”— twice. The
other justices sat (as they did all
night) sat stone faced.
While Alito’s reaction got
some media attention, much of
the reaction focused on President
Obama publically criticizing
a Supreme Court ruling. One
“legal expert” quoted by the
Washington Post noted that he
could not recall a president
doing such a thing. Ouch.
Actually, even a quick historical
search would show that not
only has it happened, but it is
not that rare. Several modern era
presidents (beginning with FDR
and including others such as
Eisenhower and Reagan) went
public with their criticisms of
court decisions.
If you care to wade through
the recent case you’ll have to
read about 100 pages written by
Justice Kennedy (the swing
vote) and supported by four of
the most conservative justices
and another 100 pages written
by Justice Stevens leading the
liberal bloc (Kennedy was the
swing vote).
Stevens admits (there is no
denying it) that the court has for
a long time granted constitutional
protection to corporations
(they ruled in 1886 that when
the 14th Amendment referred to
a “person,” this covered corporations).
What the conservatives
did with that old case was to
combine it with a cliché, and
using logical analysis they concluded
that it was unconstitutional
to prevent corporations
from using their profits for political
advertisements.
Here is how they reasoned:
Money talks; talk is speech;
speech is protected by the first
amendment; and, therefore, the
portion of federal law restricting
such corporate spending is unconstitutional.
While this reasoning
raises many questions,
let’s focus on two.
First, it was the Fuller Court
which ruled that corporations
were “persons” (in the constitutional
sense). During that time
there were about 12 major monopolies
in the United States.
By 1905 that number had increased
to around 300.
Furthermore, the Fuller Court
didn’t stop with just providing
constitutional protection for corporations,
it all but halted Congress
from regulating them. In
1895 it ruled that the Sherman
Anti-Trust Act (outlawing monopolies)
did
not apply to
the E.C.
K n i g h t
C o m p a n y
(which refined
sugar),
in spite of
the fact that
the company
controlled
98 percent of
sugar prod
u c t i o n !
When the
state of New York passed a law
(unanimously) regulating unsanitary
and unsafe working
conditions in bakeries, the
Supreme Court struck that down
on dubious constitutional
grounds.
In other words the Fuller
Court was not acting out of fairness,
it was demonstrating a
clear corporate bias, which is
why many of its decisions were
subsequently overruled.
Secondly, the logic of treating
campaign contributions as
speech is based on a cliché,
which some would argue is by
definition false. Americans
(conservatives, liberals, whatever)
should demand more from
their highest court than clichéd
thinking. But, even accepting
the assumption that spending is
speech, the court does not allow
all speech.
If individuals can be limited
in what they say, corporations
should also be subject to limitations.
Accepting this, the only
question is not if corporations
can be regulated, but how?
That, however, was not the approach
taken by the five justices
in the recent decision.
Finally, the court had, at least
three times prior to its latest
case, upheld restrictions on such
corporate spending. It had ruled
that while it is speech, it has
been trumped by corruption in
financing campaigns (or the appearance
of corruption). Of the
16 different Supreme Court justices
who ruled on campaign finance
reform laws, 11 of those
support the restrictions, the five
voted recently to strike down.
Most justices have correctly
taken the position that if we
have a problem with corporations
and political spending, it is
the inordinate influence corporations
have on elections, not
too many unjust restrictions on
corporate behavior.
Danny M. Adkison teaches constitutional
law at Oklahoma State University.
