Corporate vs.Iindividual Speech, Part II

(Editor's note: This is the second of two parts examining the Supreme Court's Citizens United decision.)


              “The Democrats have the ultimate super PAC, it is called the mainstream media.”
                             -- Marco Rubio, CNBC Republican Debate, Oct. 28.

In Part I of this piece, I discussed what the U. S. Supreme Court in Citizens United said about the political speech rights of individuals vs. corporations. In Part II I discuss what the Court said about political speech rights of ordinary corporations vs. media corporations.
In the case, the court began by setting out the law:

"Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited -- and still does prohibit -- corporations and unions from using 'general treasury funds' to make (1) direct contributions to candidates, or (2) independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections."

BCRA amended federal law "to prohibit any electioneering communication' as well. ... An electioneering communication is ... 'any broadcast, cable, or satellite communication' that 'refers to a clearly identified candidate for Federal office' and is made within 30 days of a primary or 60 days of a general election."

In Citizens United, the court recognized that while ordinary corporations, large and small, were barred from political speech" while giant (as well as "small")  media corporations were universally recognized as possessing that right. NBC, CBS, ABC, CNN and the New York Times, etc., have it within their power to campaign day after day, right up to the day of the election, against McDonald's serving unhealthy fried foods, and to call for the passage of laws prohibiting the sale of Big Macs right up until election day. At the same time under the campaign reform act, as amended, the McDonald Corp. would face fines or imprisonment if it paid for ads on TV opposing the election of a candidate promising to implement the NY Times' views.

So, should media corporations have a monopoly on political speech, or should ordinary corporations and labor unions -- both of which are "associations of citizens" --- have the same right to protect and/or advance their interests?

Consider the following: On Oct. 28, CNBC "moderated" the third Republican debate.

Given the questions asked, I was expecting the moderators to eventually ask, "Why are you still beating your wife?" The questions themselves were either intended to assassinate the candidates (regardless of the answers given), or to cause Republican candidates to eviscerate each other, while keeping the moderators hands seemingly blood-free. Did you hear a single open-ended question such as, "How exactly are illegal immigrants harming the country?"

Under the BCRA, no ordinary corporation could expend its corporate funds to rebut the perceived harm done to its favorite candidate by the CNBC moderators.

What happened on CNBC conclusively demonstrates that every corporation and union -- that is, every "association of citizens" (including Republicans and Democrats associations ) has to have the same right to engage in political speech possessed by media corporations and conglomerates, and that Citizens United was providently decided.

The court in Citizens United saw that the BCRA "interferes with the 'open marketplace' of ideas protected by the First Amendment.... It permits the Government to ban the political speech of millions of associations of citizens. ... Most of these are small corporations without large amounts of wealth.

"By suppressing the speech of [many] corporations, both for-profit and nonprofit, 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'” The Federalist No. 10, p. 130 (J. Madison). Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false."

In America  all individual and "associations of individuals" need to be able to engage in political speech. As stated in Part I, the Citizens United court did not create PACS. It merely struck down the provisions of the BCRA that gave a monopoly on political speech to the PACs and to the media corporation, so as to put all corporations, unions and PACs on equal footing.

In taking a second look at it, the Citizens United court saw the real and inherent danger in its earlier Austin decision. The court saw the lurking danger of the Austin holding to America's free press -- to its media corporations:

"The chilling endpoint of the [Austin] Court’s reasoning is not difficult to foresee: outright regulation of the press. ... Media corporations have 'immense aggregations of wealth,' and the views expressed by media corporations often have little or no correlation to the public’s support for those views. ... Thus, under the Government’s ['antidistortion'] reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment."

Simply put, if the political speech of some corporations can be barred, why not that of the media corporations?

Posted: Saturday, November 14, 2015 12:00 am. QCOnline.com

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Corporate vs. Individual Speech, Part I

(Editor's note: This is the first of  two-parts examining the Supreme Court's Citizens United decision.)


"An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment." 
                                       Justice Hugo Black, concurring opinion,  New York Times Co. v. U.S.

Bill Gates is a wealthy individual. His net worth was $79.2 billion as of Nov. 2. Gates can use his entire $79.2 billion, anytime and anywhere, to engage in political speech -- that is, to create political ads for or against causes and candidates. And if you and your friends disagree with what Gates is saying, you can pool your individual resources to engage in counter-speech. But could you set up a not-for-profit corporation and use its corporate funds to engage Gates in political speech?

Before, the U.S. Supreme Court decided the Citizens United case, the answer was an unequivocal "NO!" In the court's words, "Wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. ... Yet certain disfavored associations of citizens -- those that have taken on the corporate form -- are penalized for engaging in the same political speech."

The court saw a problem with that because whatever else a corporation is, it is an "association of citizens." The Citizens United court then criticized its own earlier decision in the Austin Case.
"The Austin majority undertook to distinguish wealthy individuals from corporations on the ground that '[s]tate law grants corporations special advantages -- such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.' ... This does not suffice, however, to allow laws prohibiting speech. 'It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.'”

So, what associations of citizens do you think should be allowed to engage in political speech to influence elections in America? All associations? Or, only some associations? Should citizens who have associated to form National Rifle Association prohibited from expending NRA corporate funds (general treasury funds)  to create political ads to defeat a candidate who campaigns on a platform of abolishing the 2nd Amendment and confiscating all guns?

Should Planned Parenthood be prohibited from placing TV ads on behalf of pro-choice candidates? Should a movie maker be prohibited from showing his film on a cable channel if the film places the entire blame for the Benghazi fiasco on Hillary Clinton? Should the Catholic or Baptist churches be prohibited from airing on TV political ads supporting candidates who support traditional marriage, or oppose abortion?

All of these are associations of citizens, and all, because they were corporations, prior to the Citizens United decision of the U. S. Supreme Court, were barred, under the threat of criminal prosecution by the provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), from using their corporate funds to engage in the sorts of political speech enumerated above.
That same BCRA, however, and not the Supreme Court, created what we have come to know in America as PACS -- political action committees. (Those who blame the court for creating them are simply uninformed and wrong.)

In the BCRA, Congress also forbade ordinary corporations (excluding media corporation) and labor unions from using their general treasury funds to engage in political speech for or against political causes and/or candidates, during certain time periods preceding primary and general elections (e.g., buy radio and TV ads, or make movies, etc.).

The BCRA, however, at the same time authorized corporations, unions and others to set up new entities -- PACs,  to use “separate segregated funds," and to raise and expend those funds to engage in political speech for or against the political causes and/or candidates, without any time constraints. That which was forbidden to corporations and unions, was permitted to the PACs.

But in the Citizens United decision of the U.S. Supreme Court, the court explained the problem of being required to set up PACs in order to engage in political speech.

"As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC [Federal Election Commission] enforcement must ask a governmental agency for prior permission to speak. ... These onerous restrictions thus function as the equivalent of 'prior restraint'  by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England -- laws and governmental practices of the sort that the First Amendment was drawn to prohibit."

Recent history shows that if the IRS can be used to silence tea party organizations who apply for tax-exempt status, there is no reason to believe that tea party organizations who ask the FEC to "speak" will receive any better treatment.

For those willing to take time to read  Citizens United, the issue is no more complicated than this:
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.

Posted: Friday, November 13, 2015 12:00 am. QCOnline.com

By John Donald O'Shea  

Copyright 2015
John Donald O'Shea 

We Must Heed the Lessons of Nixon's Watergate

Would you ever believe it? The mainstream Republicans are longing for those halcyon days when Richard M. Nixon was president! They list his accomplishments and tell us that but for one “monumental blunder,” Mr. Nixon might be regarded as one of the best presidents of the 20th  century.


“If only Dick Nixon were here today!”

Back in 1974, about the time I was first elected judge (thanks in large part to President Nixon’s Watergate problems), attorney Frank Wallace told me that “without integrity, a candidate for judge might have the finest legal mind, and the best judicial temperament and still be utterly unfit to serve as a judge.

Frank nailed it.

The same is true of presidents and candidates for president.

LBJ said our ships were attacked in the Tonkin Gulf; war followed and Americans were killed.  When Presidents Clinton and Bush told us that Saddam Hussein had weapons of mass destruction, I believed them. So did a great many other Americans -- in and out of Congress. And more Americans were killed and maimed.

For those who are too young to recall, President Nixon did not make a “monumental blunder.” He flat-out lied to the American public, not to protect the nation from its enemies, but rather to save his own neck.

“People have got to know whether or not their President is a crook. Well, I’m not a crook.”
Perhaps not, but he approved the cover up of a burglary at Democratic Headquarters at Washington’s Watergate complex on June 17, 1972, to bug Democrat offices.

Mr. Nixon at first downplayed the scandal, calling it “mere politics.” He labeled news stories linking the White House to the burglary as  “biased and misleading.” He was lying.

But, then, White House aide, Alexander Butterfield, revealed to Congress that Mr. Nixon had a secret taping system in the Oval Office that recorded all his phone calls and conversations. Mr. Nixon provided transcripts of the tapes, but refused to give the actual tapes to Special Prosecutor Archibald Cox, claiming executive privilege.

When Cox refused to back down, the president fired him. Eventually, Mr. Nixon’s lawyers turned over the audio tape, but it contained an 18½ minute gap! The president’s personal secretary claimed she accidentally erased that portion of the tape.

Throughout the affair, President Nixon claimed he had no prior knowledge of the burglary, and knew nothing of a cover up. But then, in early 1973, Mr. Nixon’s defense crumbled. A “new tape,” recorded not long after the break-in came, to light showing Nixon had been told of the White House’s connection to the Watergate burglaries soon after they had taken place, and that he had approved plans to thwart the investigation. When congressional leaders told him he would be impeached and convicted, President Nixon resigned.

To call his actions a “monumental blunder” is to convert President Nixon’s course of lies, deceit, and intentional misconduct into a mere mistake of judgment. Nixon was about to be impeached not for some mere lapse of judgment, but rather for intentionally lying to the American people and obstructing justice.

And now it’s happening again. A candidate for president has a secret -- non-official -- email system. When Congress demands to see her Benghazi emails, she labels the investigation “the biggest fairy tale I have ever seen” and rhetorically asks, “What difference does it make?”
When Congress asks for her emails, it is told they were all personal and have been erased, and then she tells the public, “’I think it’s pretty clear ... they ended up becoming a partisan arm of the Republican National Committee.”

Mrs. Clinton is using Nixon’s playbook. Both labeled the congressional investigations partisan politics. Nixon (or an aide) erased minutes from a tape and withheld other tapes. Mrs. Clinton has deleted thousands of emails, and withheld thousands of others from Congress for nearly four years! Mr. Nixon lied to cover up a “third-rate burglary.” Mrs. Clinton lies to keep the public in the dark as to what the American government was doing in Benghazi. All that is presently lacking is her connection to a crime -- such as the Watergate break-in.

But what if it turns out that Ambassador Stevens was, in violation of the law, engaged in smuggling Libyan weapons to the Syrian rebels? Remember the Iran/Contra affair? What if it turns out that the FBI determines that she has lied under oath to Congress, or under oath has intentionally mislead Congress? Isn’t perjuring yourself before Congress a felony?

If Mrs. Clinton intentionally lied to Congress and the people, does that “make a difference?” Shouldn’t our leaders tell us the truth? Or have Democrats forgotten their catchy little jingle, “Bush lied, soldiers died?” Or, is integrity required only of Republicans?

Democrats say the Benghazi hearings have gone on too long. I would suggest that they  would have been over three and a half years ago had Mrs. Clinton simply given Congress her emails when first asked. There would have been no problems for Mrs. Clinton, had the president, Mrs. Clinton or Susan Rice simply told the truth about what our ambassador was doing in Benghazi, rather than inanely blaming an obscure “Internet video.”

Mrs. Clinton’s 11:12 p.m., Sept. 11, 2012 email to her daughter -- the night of the Benghazi attacks — conclusively proves that Mrs. Clinton knew the attack was a terrorist attack, and not video inspired: “Two of our young officers were killed in Benghazi by an al-Qaida-like group.”

If mainstream Republican are really longing for the days of good old Richard Nixon, all they have to do is switch parties and vote for Mrs. Clinton -- the second-coming of President Nixon.

 Posted: Wednesday, November 4, 2015 12:00 am. QCOnline.com

By John Donald O'Shea

Copyright 2015

John Donald O'Shea