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Justice Thomas' Reasoning -- Dangerous for Democracy
The normally closed Supreme Court opened a crack last week, as Clarence Thomas defended the 5-4 decision clearing away limits on corporate spending to influence elections.
"If 10 of you got together and decided to speak, just as a group," he said, "you'd say you have First Amendment rights to speak and the First Amendment right of association." And "if all of you formed a partnership," it would be the same.
Then he asks rhetorically, "But what if you put yourself in corporate form?" He implies the answer would not change. "It's wrong," he argues, to make any distinction. The "ultimate precedent is the Constitution."
But, Justice Thomas, democracy itself depends on our making distinctions about who can influence political decisions, as the Court has done for many decades. (What about the 1933 Hatch Act curtailing political activity by government employees?)
And the most critical distinctions?
If I speak out as a citizen, or join with others and decide "to speak, just as a group," I am choosing to further democratic decision making by adding my voice. Democracy's foundation is the belief that citizens are able to deliberate and choose what is best for society as a whole. And indeed Americans often vote with this goal foremost--voting what they think is right, not necessarily in their narrow self-interest.
But if I form a corporation, or own shares in one, my purpose is utterly different. Partly, I seek to shield myself against personal financial liability and to enjoy other legal advantages for financial gain. These very different purposes and protections are among the reasons a corporation is not a citizen, nor is it a group of citizens; and why it cannot vote or sit on a jury, for example.
How can democracy permit an entity that cannot itself vote to have the power to sway voters and power over what a candidate might dare to say without risking a billion-dollar backlash?
You argue the Constitution is the "ultimate precedent." But the Constitution doesn't mention corporations, at the time they didn't exist as independent entities. Within a few decades many founders, including Thomas Jefferson began to see how corporate power could subvert democracy. "I hope [that] we shall crush in its birth the aristocracy of our monied corporations," Jefferson said, "which dare already to challenge our government to a trial by strength and [to] bid defiance to the laws of our country." It seems inconceivable that founders would approve the corporate influence in elections that you have just approved.
You suggest that the Supreme Court majority is expanding freedom and core democratic values.
No.
The Court's decision threatens my freedom to know that my purchases and investments don't fund a corporation's political speech to defeat my values. But this is the least of my freedoms lost.
The decision undermines my choice to be part of a democracy in which each of us can be heard, a voice not overwhelmed by entities whose resources rival those of whole nations, and whose interests lie not in a healthy democracy but in enhancing their markets. The Court's decision also helps to deprive me of the freedom to choose among a range of political candidates far wider than those favored by our society's vast concentrations of wealth. In a word, it deprives me of the very essence of democracy itself--effective voice and choice.
Citizens stunned by this assault on democracy are devising a range of response. Listening to them, Rep. Michael Capuano (D-MA), for example, is pursuing legislation to require broad consent by shareholders before a corporation can engage in political spending
Many Americans feel powerless in the face of such loss. We are not. One immediate step we can take right now step is to ensure passage of the bipartisan Fair Elections Now Act--S.752, H.R.1826. It establishes a workable system of small donations combined with voluntary public financing for congressional races. It builds on an approach that's already proven itself in three states. (Watch this inspiring example of its impact.) The Fair Elections approach has not been blocked by the Supreme Court. While it can't avert all the threats embodied in the Count's decision, it enables a candidate to run for office without becoming beholden to corporate money.
That is huge.
So let's not allow the Justices' dangerous logic to undermine democratic decision making America needs now more than ever. We can commit to choosing elected leaders who grasp what we've lost and would seat justices eager to reclaim the long precedent shielding us from this travesty. Right now, we can press our representatives to support the Fair Elections Now Act. We can back the excellent work, for example, of Change Congress Now, YouStreet, and Publiccampaign.org.
25 Comments so far
Show All-"But the Constitution doesn't mention corporations, at the time they didn't exist as independent entities"
No, but the constitution doesn't say as Obama/Nixon (the unitary executive war president) says: "if the president does it, it is legal" and the supremes are fine and dandy with that so...
reasoning with your current supreme court is a waste of time, they are drunk on power and will interpret, whatever is or isn't in the constitution, anyway they like. You need to elect politicians that respond to your needs and who will appoint justices that respect the law.
REASON? There is No REASON! Only more imperious Manifest INSANITY.
If one ignores the difference between the right to speech and the right to effective speech, as the court does in refusing to acknowledge the way flood speech of corporations can drown out the speech of others, it becomes difficult to argue that Soviet citizens, citizens of Nazi Germany, or citizens under any other purported totalitarian regime did not possess free speech rights, for they all surely had the unfettered ability to engage in certain forms of ineffective speech, such as inaudibly muttering their objections when no one was around.
Too late, Democracy(TM) is merely a public relations management tool.
If I am a stockholder in a company that is considering endorsing or smearing a particular individual running for office and I have to vote for this companies decision isn't that the same as having 2 votes and what if I am a shareholder in several companies doing the same thing. Am I entitled to as many votes as my stock portfolio has investments? What about the voters who do not have investments? Still only one vote? Why does this whole idea of a corporation as an individual with the right to 'free speech' rub the wrong way? If a corporation was founded on the principles of fairness and decency for all it might be a different story but I sincerely doubt that the mission statement of any corporation spells out any lofty ideals but offers up the promise to investors of profit, profits and more profits, not equal anything.
Thomas' bullshit is based entirely on the premise that spending money is a form of personal expression. It is not.
q
Uncle Thomas' reasoning is just what Scalia tells him. I can't recall any significant case where Thomas voted differently than Scalia.
Lappe: "if I form a corporation... my purpose is... to enjoy ...legal advantages for financial gain."
This really cuts to the heart of the matter. Think about it: we all need money (or value) to survive, so we go about getting it. One way to get it is to steal it from those around us. Wham! Right there, RIGHT there, a system of law (and enforcement) is necessitated and created IN OPPOSITION TO our natural desire for money/food/clothing/ etc. NOT in accordance with, in opposition TO.
Capitalism and Democracy are natural opponents. Democracy creates a system of laws that, in essense, TELL Capitalism what it cannot do (don't kill, don't steal, don't pollute). So, from the very start, there is nothing in a capitalist entity, like a corporation, that is sympathetic to democracy, or any government. And this is not because they are 'inherently evil'. Its because they, and we, have to make a living, and have a natural tendency to try to make one the easiest way possible.
The Supreme's think they found a way, the First Amendment, to give a capitalist entity backdoor control of our government, by which to throw off the very natural controls the government has put in their way of making money (for the simple reason that 'we the people' want to live in a liveable society).
But this ruling is a travesty, and shows all Americans how deeply, deeply corrupted every branch of government has been by money. Money has its place. Its place is NOT in the fabric of laws that protect the weak from the worst deprivations of the strong.
A functioning democracy would never have put a buffoon like Clarence Thomas on the top court of the land.
A person is a living being that bleeds when cut.
A group of people can all get the same cold when sharing germs.
Can a corporation die of an illness if it doesn't have health care?
There's an upcoming set of marches for campaign finance reform to be coordinated in all 50 states. No final date is set yet. For details and to join in, see
http://ourstodecide.org/
This is a chance to get out and protest the Court ruling!
These Corporations are like Koshchey the Deathless - mere mortals don't have a chance against them.
""So let's not allow the Justices' dangerous logic to undermine democratic decision making America needs now more than ever.""
This is not logic of the justices, this is pure criminal bribery of the justices to change precedent that will now favor the aristocracy which means that the bribery is the lobbyist's moving in to influence the supreme court for their owner's sake and benefit.
I wish this reality of definition would become more and more prevalent that lobbying is CRIMINAL BRIBERY and calling it that every time lobbying or lobbyists are mentioned, may just be like 'repeating a lie enough will make it true' then calling lobbying CRIMINAL BRIBERY all the time will reveal it for just that, and that is more than just wishful thinking.
First, congratulations to the writer, a well defined, clear and sensible argument. I agree in total with the logic and the response recommendations. I believe this ruling will ignite change in a way that will move the Spirit of this Nation. The Lie of this Nation has been revealed in its deepest member.
It's been revealed a thousand times before. And each time a few ripples appear on the surface of the water--and then quickly disappear. I can't even begin to imagine anymore how something like this would actually spur real change. It's too late. The populace is effectively lobotomized.
dionski
Just a thought on Change and a perception of how it happens:
Change first begins with that feeling of uncertainty, which moves people to act. No one individual coalesces the array of force that brings change. Change results from a collective consciousness that old ways won't do. Change requires abandonment that is more than just a mere releasing, old ways must be consciously denied. There is a Time and Event that unalterably seperates us from that which we can no longer endure and we must go. Whether our going is our will or whether we go upon the wings of fate, we go. The process is inexorable.
I believe our Nation is approaching that tipping point.
Justice Thomas (R-nut) misses the point of his own twisted reasoning.
If I form a group, and then this group speaks, those in the group are being spoken for.
However, a Corporation 'group' does not 'speak' for those in the Corporation 'group.' Employees and shareholders are not asked whether they agree or not with the 'group's' decision to, say, run attack ads the night before an election.
Now, if we want to play this game, then all Corporations must have agreement from all members of the 'group' before 'speaking' for that 'group.' Only then would the Corporation 'group' and my little 'stop f**king us over' group be on the same field...
The accession of Clarence Thomas to the US Supreme Court has turned into one of the biggest calamities to ever hit America, as his presence facilitated Dubya being selected president & Citizens United vs. FEC, amongst other horrors. Shame forever to those Senators who did not believe Anita Hill.
I have some questions. Sure, Thomas doesn't make sense in equating a corporation with a person. But the First Amendment protects freedom of the press. At the time the amendment was adopted, evidently the press was nothing like what we now have. It seems that everyone agrees that big corporate news media (often just adjuncts to entertainment businesses) are free to spend as much as they want expressing their views. Is anyone arguing that Fox News isn't allowed by the First Amendment to be the mouthpiece of the Republican Party? The major newspapers and news magazines dominate news. I can't even get a letter to the editor printed in them. Is that freedom of speech? They can't vote, hold office, or be put in jail, right? Yet the First Amendment protects them.
Then we have the fabulously, unbelievably rich – Gates, Buffet, etc. All, or nearly all, members of Congress are millionaires. Many of them have obtained their money from corporations, often as compensation for services to them. The super rich and congresspersons can get a hearing in the major media any day. His/her money gives him/her that power. I can't even get people to read my comments on CD. Is that freedom of speech?
This idea of "effective" voice or speech is important. Kivals makes an interesting point. I just don't know to where it leads. Those of us without money have the freedom to mutter to ourselves. It reminds me of the statement of Rousseau, often attributed to Queen Marie Antoinette – "Let them eat cake," referring to peasants complaining about not having bread. Must we be advised to become media moguls, or extremely wealthy, if we complain about our speech being ineffective?
The Press is a product of Equity. Equity is an extension of labor and must be afforded rights consistent with constitutional guarantees concerning property. The Authors' point regarding the difference between a Corporation and a Person for me completes the argument. The lie begins here.
Freedom of the press... for anybody who owns one.
the title of the piece is misleading and a falsehood.
"justice thomas' reasoning?"
justice thomas lacks reasoning.
he is however capable of echoing roberts and scalia.
sort of like a myna bird.
but then again myna birds can probably reason on a somewhat lower level.
The supercourt justasses are acting in desperate cooperation with the rest of the USan elite establishment to consolidate, and try and preserve, the imperial juggernaut's waning momentum in the face of rising global rivals, namely China. They have no idea how to build a great society. They are "just good" to have a beer with, ehh? As long as the petro-opiates flow, foolishness will prevail, at the voting booth, and in public office, until the collapse.
The mendacity just drives you crazy. Eldridge Cleaver in "Soul On Ice" (which has a whole new meaning with the then unknown cocaine derivative emergence) said something to the effect that when he robs you he sticks a gun in your face and demands your money. So you really know what has gone down.
But not our modern highwaymen, no they have to shake us down to a Mr. Rogers tune of "Welcome to my neighborhood". "I'll just dust off your coat and hang it up for you." Later you realize your life savings have vanished, along with your birth certificate and wedding ring.
Wouldn't it be refreshing if goldman sacks and their buy-a-judge Thomas (and the rest) would just state categorically that they will not rest until complete corporate feudalism has taken down the middle class (and with it the constitution) to such a debased state that we will gladly lay face down in muddied puddles so the elite's won't soil their pastel puma's.
These people have such a greedy crutch itch for money and power that they make Tiger Woods libido seems like a twelve year old's flirtation.
Excellent article and comments as well. I'd like to add to a couple of points made. One, is there is a full court press in corporate media to attack the left as being ignorant and unAmerican. For my money-speech, I think the comments here are quite American. I've been reading The Unknown American Revolution by Gary B. Nash, which is about the founding of our country from the viewpoint of ordinary or underclass Americans. The battle lines drawn then are still being fought at today.
Battles were waged then between the monied elite fighting for liberty and the poor who were fighting not only for their liberty, but fighting the elite for equal rights at the same time. The more conservative founders of the country wanted to wrest control from the European elite, in some cases, just to claim it for themselves. They didn't really want the unwashed masses to achieve radical reforms of representation and equality. When you read about the battle over the idea of unpropertied men having a vote, you realize how much the fight for liberty was a class war.
Even the checks and balances of having a senate and house were about those two interest groups. Ordinary people were supposed to be kept in check by the Senate, our version of the House of Lords, but to share power in having a House of Representatives to represent the common people. The Supreme Court now claims the Constitution doesn't want commoners to have even that watered down political right. In enshrining the rights of money, they plead blindness to the harm money - whether aristocratic or corporate - does to those without.
So when you hear the newly invigorated conservatives railing about democracy being "mob rule," be sure and ask them if it was ever intended for the "mob" ruling us to to be Money. Although there were then and still now are those who would say "yes," the last Revolution said "no." And up until every aspect of our government was corrupted by bribery, the system functioned to protect us from the Monied Mob as much as from a citizenry suddenly run amok, voting itself largess.