Monday, January 25, 2010

Absent History

[Note: Yes, still roiled up over the Citizens United Thing]

One of the more striking aspects of the Corporate Liberation Act passed and enacted by the majority of the Supreme Court last week is the nearly complete absence of any historical context for Campaign Finance Reform measures in the first place, nor even the briefest acknowledgement of the pre-1886 Santa Clara County v Southern Pacific Railroad corporate status vis a vis the 14th Amendment and elections.

How is it that the history is simply not there?

From the actions of the Court in modifying the matter before them and their pretzel logic in rendering their decision, it's plain to see that the Court majority manipulated the situation and the law in order to produce the outcome they wanted, consistent with their ideology.

However, how we got to this point is unknown, at least from the evidence and argument in the decision itself (and notably in the dissent as well).

It's as if this is all sui generis unrelated to anything else, out of Zeus's Brow as it were.

Of course there is a history, and it goes much farther back than the Nixon administration -- which is as far back as any of the justices and appellants chose to go.

On this note, I'd just point out that the ACLU's amicus brief in the matter is strictly concerned with First Amendment issues; it is not in any way concerned with the underlying issues of corporate personhood and it does not directly touch on the sensitive issue of "money=speech" (although that has long been an ACLU touchstone.) Indeed, the ACLU brief does not seriously contemplate what the Court actually did in its reversal of over a century of Campaign Finance law and precedent. While celebrating their First Amendment victory in the case, you would think the ACLU would recognize not only the destabilizing factors in the ruling itself, but the radical and reactionary nature of what the Court has done and the danger it intrinsically represents to the issue of the First Amendment and freedom of political speech the ACLU was ostensibly so deeply concerned about.

To a significant degree, the case the Supreme Court created for itself was not legitimately a First Amendment case at all, it was a Radical Corporate Liberationist case. What the ACLU was arguing for on First Amendment grounds was actually not what the Court had before it after they massaged the matter to their liking.

But they decided it on First Amendment grounds, so the ACLU is popping champagne corks and its acolytes and functionaries wonder, stupefied, why everyone else isn't cheering along.

We all love the First Amendment, don't we?

Huh. At times, lawyers can be idiots. And the law, as Dickens noted, can be "a ass."

To return to the history here. The premise of Corporate Personhood which is at the core of the dispute and the central factor in the Court's ruling came about through an almost casual indifference. Or rather apparent indifference.

The matter of whether Corporations were protected by the 14th Amendment and entitled to all the benefits of the "equal protection clause" as "persons" has never actually been before the Court. Rather, in a ruling on a different matter altogether, the infamous Santa Clara County v Southern Pacific Railroad Company (118 U.S. 394), 1886, the Chief Justice announced prior to argument and the court reporter (who apparently was a former employee of the Southern Pacific) inserted into the obiter dictum the statement that:

"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

And it was done.


Rights and privileges guaranteed to natural persons were thereby extended to legal entities/fictional persons, ie: corporations.

And ever since, the courts have behaved as if the matter is settled law.

Of course, that legal premise -- and many would say, that legal fiction that judicial "accident", as it were -- lies at the root of the present ruling. If corporations are "persons" under the meaning of the 14th Amendment then their First Amendment rights to free speech cannot be abridged by acts of Congress to any different degree than those of natural persons. It is the Black Letter of the Law and the Constitution; bow down.

Well, except...

The Santa Clara County v Southern Pacific Railroad Company is instructive on its own merits, regardless of the judicial "accident" that gave currency to the notion of absolute Corporate Personhood. For it is an example of hundreds of suits that demonstrated the unequal position of Corporations vis a vis The People and The Government at the time. That is to say, Corporations, by virtue of their market power and their gross corruption of democratic institutions, had a dominant position vis a vis The People and The Government. In essence, they owned it. All of it.

Against which the interests of The People through their democratic institutions and representatives were feeble at best. At issue in the Santa Clara County case was the refusal of the Southern Pacific Railroad to pay taxes on the assessed value of their properties as determined by the California State Constitution of 1879 and the Assessors of Santa Clara and Fresno Counties. Got that? The Corporation refused to pay property taxes as determined by the Constitution of the state and the County Assessor. Their refusal wound up in the Supreme Court, which ruled very narrowly on the issue of fences, not the constitutional issue of corporate taxation. The Railroad argued that they should be exempt from property taxation to the extent that their mortgages reduced the monetary value of their properties, as was the case under California law at the time for individuals and other entities, but not for railroads. Oh, and their fences were improperly included in assessments and should be excluded.

Lower courts had ruled that fences were improperly included in assessments, but did not rule on the issue of corporate taxation; the Supreme Court upheld lower court rulings on fences. And the Court Reporter included a passing statement by the Chief Justice that as far as the members of the court were concerned, the 14th Amendment applied to corporations as well as individuals. But the matter was not under litigation.

Later on, during Teddy Roosevelt's Trust Busting era, the issue of reforming campaign financing came to the fore. The problem was obvious: that corporations -- such as the Southern Pacific Railroad -- were quite openly buying and selling candidates and elections, and there was little or nothing standing in the way of their doing so. It was corrupt on its face, and that corruption ensured that The People and the Public Interest could not be heard or acted upon unless the "owners" of the Government and its officials deemed it to be in their interests.

That was the situation that led to the first federal and many state campaign finance reform acts. And that is essentially the situation the Supreme Court has reverted the nation and states to.

By the Court's sweeping ruling, much of campaign finance regulation since 1907 when the first federal regulations were put in place, and an undetermined number of state campaign finance regulations have been thrown in the Dumpster. To a significant degree, CFR is back where it was prior to 1907.

That is not to say that the campaign finance reform legislation that was in force prior to the ruling last week was all that effective or even that it was Constitutional. But the Court had many options besides reversing pretty much all of campaign finance regulation. The dissent (starting on page 88) goes through some of those options. Rather than acting "conservatively", the Court acted radically.

This should be a red flag to everyone who supposedly favors judicial restraint, but of course it is not. Instead, they celebrate.

Something's not right here...

There is much more history involved, but my posts have become tiresome. I shall retreat to my chamber anon...

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