Court vs. Court

I’ve been a lawyer for thirty-two years, and I’ve never read a judicial decision like the one that the Montana Supreme Court issued last December 30.

While every court in this country – from the lowest state court to the federal tribunals – sees its job as obeying the dictates of the United States Supreme Court, the Montana Supreme Court chose to obey the U.S. Constitution instead.

The bottom line: the Montana court refused to comply with the US Supreme Court’s infamous 2010 decision in Citizens United, which struck down legal limits on how much corporations could spend on electing politicians or passing ballot measures. The Supreme Court ruled that corporations have a First Amendment right to intervene and influence our democracy with cash. Spending money is a form of free speech, said five of the nine justices. And by that one vote majority, the United States Supreme Court made corporations more powerful than government, more powerful than human beings. The second anniversary of the Citizens United ruling sparked a day of national protest, as my colleague Marty Berg reports.

Like many states, Montana had strong campaign spending laws, including disclosure of campaign contributors and one that prohibits corporations from giving money directly to candidates for public office out of the company treasury. Instead, corporations that want to get involved in elections are required to set up a special fund that can receive donations from individual corporate employees or shareholders and use that money for gifts to politicians or political causes.

As the Montana opinion explains, a Colorado-based organization known as “Western Tradition Partnership” sued to invalidate Montana’s corporate campaign controls, saying they were unconstitutional under Citizens United. Now known as “American Tradition Partnership,” the organization’s supporters and funding are murky, but it’s views are clear: it is extremely anti-environment. The Montana Supreme Court described its purpose as “to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections. WTP seeks to make unlimited expenditures in Montana elections from these anonymous funding sources. WTP’s operation is premised on the fact, or at least the assumption, that its independent expenditures have a determinative influence on the outcome of elections in Montana.”

Lots of states have dealt with Citizens United by repealing or rewriting their campaign spending laws. Not Montana.

The Montana Supreme Court decision begins by discussing how in the late 1800s, big mining interests used money to back or bribe elected officials in Montana to take control of state government. The corruption got so bad that many citizens of the state lost their faith in government. “This naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law,” writes Montana Chief Justice Mike McGrath. Among the reforms: the initiative process, and, in 1912, the limits on corporate spending.

“The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did,” the Chief Justice writes. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

While the US Supreme Court justices saw no “compelling interest” in limiting corporate contributions, the Montana Supreme Court had a different view: “Montana has a clear interest in preserving the integrity of its electoral process”;  “it also has an interest in encouraging the full participation of the Montana electorate”; and “a continuing and compelling interest in, and a constitutional right to, an independent, fair and impartial judiciary,” one that is not subject to being bought by corporations who elect friendly judges.

Concluding that “the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens,” the Montana Supreme Court refused to apply Citizens United and upheld the state’s campaign 100 year old reform law.

But that was only the majority opinion. Wait till you hear what the two dissenting justices had to say:

The first, Justice Beth Baker: “The value of disclosure in preventing corruption cannot be understated.” But, she continues, “I believe it is our unflagging obligation, in keeping with the courts’ duty to safeguard the rule of law, to honor the decisions of our nation’s highest Court.”

Justice James Nelson gets the last word, and it’s a doozy.

He writes:

“I thoroughly disagree with the Supreme Court’s decision in Citizens United…. I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the exaggerated power to influence voters and elections….. In my view, Citizens United has turned the First Amendment’s 'open marketplace' of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business.”

“It defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate.”

“I absolutely do not agree that corporate money in the form of ‘independent expenditures’ expressly advocating the election or defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can. Even the most cursory review of decades of partisan campaigns and elections, whether state or federal, demonstrates this. Citizens United held that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption is one that is limited to quid pro quo corruption. This is simply smoke and mirrors.”

“Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections.”

“I am compelled to say something about corporate ‘personhood.’ While I recognize that this doctrine is firmly entrenched in the law… I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

Having explained, in the most vivid terms, why Citizens United was decided wrongly, Justice Nelson concludes: “I must return to the central point of this Dissent. Regardless of my disagreement with the views of the Citizens United majority, the fact remains that the Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-à-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling….Citizens United is the law of the land, and this Court is duty-bound to follow it.”

Students of the law know that courts are always disagreeing with each other. Like the majority of the Montana Supreme Court, judges seek to “distinguish” the circumstances of one case from the facts in another in order to rule a different way. But rarely do the cases involve issues so fundamentally important to the nation; rarely are the stakes so great and rarely are the differences so stark. My guess is we're going to be seeing more of this gentle judicial civil disobedience as the present US Supreme Court ventures ever farther into the realm of re-writing the Constitution.

All the Montana justices seemed to agree that the United States Supreme Court had made a terrible decision in Citizens United. It’s most vehement critic on the Montana court, certain of that as he was, nevertheless felt bound to obey a higher principle – to obey the law of the land. If only the five justices in Washington had felt the same way.

 

 

Citizens United / Harvey Column / Outrage / Supreme Court - 01/23/2012

Obama Visits the Nasty Neighbor

President Obama paid a call on the U.S. Chamber of Commerce a few days ago. No organization has done more to obstruct and derail the president's policy agenda: on behalf of the massive industries that fund its $200 million budget, the Chamber fiercely opposed health care reform, financial reform, the Consumer Financial Protection Bureau, environmental protection, and consumer access to the courts, often at the expense of small businesses.  Last year, it killed a bill in the Senate that would have stripped big business of tax breaks when they outsource American jobs to other countries. Its litigation shop, lavishly supported by a who's who of corporate defendants in civil and criminal matters, has been remarkably successful in protecting big business in cases before the U.S. Supreme Court.  The U.S. Chamber is a highly partisan operation that will never cede an inch of ground to the President or his party.

Still, it wasn’t so much that Obama went to Chamber, or what he said when he got there, that bothered me. It was that he walked there from the White House.

The Chamber's headquarters is only three tenths of a mile from 1600 Pennsylvania Avenue, a five minute stroll across Lafayette Park. Most Americans would never consider taking the car (except maybe Angelenos).

But when the President rolls, dozens of vehicles, from ambulances and TV trucks to communications and heavily armed Secret Service vans, go with him. It's spectacle, but, as President Reagan understood, the motorcade is a potent symbol of the power and majesty of the presidency.

Going on foot to the headquarters of corporate America, Obama surrendered not merely the trappings of power but, inescapably, a measure of the dignity of his office.

A year ago, Obama hoofed it back to the White House from a speech at the Chamber. That was right after his annual physical, and Obama joked that he needed to walk off some of his cholesterol. More importantly, that was before the mid-term elections, when the President’s party got walloped, thanks in no small part to the $31.7 million the Chamber spent around the nation, 93% of which went to elect Republicans.

His latest visit wasn't exactly "hat in hand," but by the President's own reckoning it was pretty close: “I'm here in the interest of being more neighborly," Obama told his hosts. "Maybe if we had brought over a fruitcake when I first moved in, we would have gotten off to a better start.”

"I'm going to make up for it," the President promised. Some of us think he's already done plenty for big business, and not quite so much for average Americans, most of whom are struggling to survive the aftermath of the debacle on Wall Street.

Mr. Obama was careful not to completely prostrate himself before the Chamber's bigwigs. But every remark that could be considered a point of disagreement was tempered with a nod to the Chamber’s ideology. The President defended health care reform, but instead of discussing the human toll of the private insurance mess, explained that it “made our entire economy less competitive.” He warned that “the perils of too much regulation are matched by the dangers of too little,” referring to the financial crisis, but did not discuss lost jobs or homes. Instead he said, “the absence of sound rules of the road was hardly good for business.” Invoking one of John F. Kennedy’s most memorable speeches, Obama said, “as we work with you to make America a better place to do business, ask yourselves what you can do for America.” But the man who appeared before the Chamber conceived of his job far differently than he did when he asked Americans for it in 2008:  “the final responsibility of government,” President Obama told the Chamber audience, is “breaking down barriers that stand in the way of your success.”

This week’s stroll was part of the President’s Chamber charm campaign, which began in earnest with the State of the Union speech in January, when the President seemed to declare the recession over because  “the stock market has come roaring back” and “corporate profits are up.”

For one in five Americans still out of work, for the one in four homeowners whose homes are worth less than the amount they owe on their mortgages, that was a painful moment reminiscent of George Bush’s “mission accomplished” speech back in 2003 about the Iraq War. Obama spent the rest of the State of the Union on a combination of platitudes and pandering to his opponents, pledging among other things to get rid of unnecessary government regulations - one of the Chamber's perennial priorities.

There are plenty of other places the president could have gone if he was in the mood for an outing. The national headquarters of the AFL-CIO is only a few steps away from the Chamber, but he has never made that trip, as the California Nurses Association pointed out. Sadly, that would not be as controversial a venue as the President might fear: the AFL issued a joint press release with the Chamber praising the president’s State of the Union speech. Still, a visit from the president would have made a statement to the nation about the role working women and men play in what is known as the "real" economy (as opposed to Wall Street and the Money Industry). A fairly straightforward jog down Pennsylvania Avenue would have taken Mr. Obama to Consumer Watchdog's office on Capitol Hill.

We'll be watching where the President wanders to next. If you know what you are doing, and are clear about where you want to go, navigating the nation's capital isn't hard. But for newcomers who don't, it's very easy to get lost in D.C.

Harvey Column / Outrage / Uncategorized - 02/11/2011

Phony Moderates, Real Power

Beware wolves dressed in moderates’ clothing.

Especially the “fresh thinking” as gussied up by the group calling itself “Third Way,” which tries to put a genteel, highbrow facade on its advocacy for increasing austerity and financial insecurity for the majority of Americans.

Digging beneath the sunny platitudes about promoting growth, you will find that the organization is chock full of high finance types and their political servants, so it’s no surprise that they’re more interested in rethinking what they like to belittle as entitlements and boosting too big-to fail banks than they are in raising questions about the financial system.

And they’re not laying down these proposals just to hear themselves talk.

These people have real power to set the terms of the debate and strongly influence decision-makers.

The most obvious example is President Obama’s new chief of staff, Bill Daley, the former top official of J.P. Morgan who sits on Third Way’s board.

He’s just the latest in a string of  bad appointments the president has made to oversee the nation's economy, from Tim Geithner and Larry Summers to Gene Sperling, the Goldman-Sachs alum who fought for financial deregulation in the Clinton White House, who was recently appointed to replace Summers on the Council of Economic Advisers. Then there's Jeffrey Immelt, GE’s CEO the outsourcing, plant-shutting ace who Obama put in charge of reducing the unemployment rate.

For his part, Daley seems to have earned his job as the president’s chief adviser by fighting against financial reform, especially from the Consumer Financial Protection Bureau.

The mainstream media has worked hard to foster the idea of centrism, with Third Way as a prime proponent of “moderate ideas.”

But there’s nothing moderate about the continuing unhealthy influence of corporate America over our political process, fostering policies that are turning us into something more like a Third World country polarized between haves and have nots than the land of opportunity for all.

There’s nothing moderate about the fear-driven wealth and power grab, otherwise known as the federal bailout, that entrenched the wealth built for a select few in the years of the bubble economy, while it increased economic insecurity for the rest of us. As Neil Barofsky, TARP’s inspector-general, pointed out in his most recent report, it also entrenched the political and financial clout of “too big to fail” financial institutions.

There’s nothing moderate about the austerity agenda of shared sacrifice which consists of cuts to Social Security, Medicare and education.

There’s nothing moderate about the attack on the economic system that was built in the wake of the Great Depression and World War II, which combined the power of the free market with a system of regulation and safety nets. That attack, with its intellectual underpinnings in the work of the economist Milton Friedman, was launched in the 1980s and has been carried forward by politicians of both parties.

Meanwhile, two of the most impassioned politicians standing up to that attack, from opposite ends of the spectrum, would probably be characterized by the mainstream media as extremist: Sen. Bernie Sanders, the independent socialist from Vermont, and Rep. Ron Paul, the libertarian from  Texas. Those two men, who would probably find much to disagree on, worked together to pass a bill to audit the highly secretive activities of the Federal Reserve during the bailout.

You may or may not agree with Sanders or Paul either, but they aren’t afraid to challenge a status quo which props up the powerful while undermining the powerless.

You can scour Third Way’s materials and you won’t find anything that challenges the risky practices of financial institutions that wrecked our economy. You won’t find anything that challenges the power equation that props up the status quo. Behind its rhetoric of moderation, Third Way knows which side it’s on.

Consumer Financial Protection Agency / Financial Reform Legislation / President Barack Obama - 02/08/2011

Around the Web: Declaring Independence on Consumer Protection

Read Reuters’ economic blogger Felix Salmon’s intriguing takeaway from the weekend’s depressing news that Repubs have rejected even Chris Dodd’s watered-down, weakened version of the financial consumer protection agency. Salmon’s prescription: the Dems should accept whatever the key Republican senators, Richard Shelby and Bob Corker, want. It won’t be that much worse than Dodd’s current “toothless” proposal is now.

Then, consumer advocate Elizabeth Warren should team up with a non-governmental organization like the Center for Responsible Lending and perform the function of a real independent consumer financial protection agency, warning people about particularly bad loans or institutions that are rip-offs, and commending good ones.

Are the Republicans really thwarting the Democrats? Or do Democrats not get anything done by design? Salon’s Glenn Greenwald tells you how and why the Democrats have perfected ineffectiveness and timidity into a high art. Read it and weep.

Meanwhile, the old dinosaur print media isn’t dead yet. New York Times’ columnist Gretchen Morgenstern has a scathing take on the naiveté of Fed chair Ben Bernanke’s takes on Goldman and their Greek default swaps. As for Bernanke’s “quaint” insight that the SEC will probably be interested in looking into the matter, Morgenstern writes: “If the past is prologue we might see a case or two emerge from the inquiry five years from now. The fact is that credit default swaps and other complex derivatives that have proved to be instruments of mass destruction still remain entrenched in our financial system three years after our financial system was almost brought to its knees.”

Around the Web / Consumer Financial Protection Agency / Derivatives / Federal Reserve - 03/01/2010