As you’ve no doubt heard by now, in an extraordinary escalation of tension between President Barack Obama and the sitting justices of the Supreme Court during last night’s State of the Union address, Justice Samuel Alito gave us this year’s “Joe Wilson moment” by shaking his head and mouthing “Not true…” in response to the following statement by the President:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.

Conservatives and progressives may argue this morning about whether President Obama should have criticized the Court and about the severity of Justice Alito’s breach of protocol, but Justice Alito faces a bigger problem:  Obama’s comment is true.

In fact, Obama’s carefully-phrased comment to the justices highlights two critical aspects of the majority’s decision in Citizens United v. FEC, both of which constitute dangerous and revolutionary shifts in long-settled law: Read more »

by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.  This piece is cross-posted at ACSblog, and is the third installment of a four-part debate hosted by ACSblog on the constitutional rights of corporations between Mr. Gans and Michael S. Greve of the American Enterprise Institute.  All posts from the debate are available here.

Last Thursday, in Citizens United v. FEC, the Supreme Court announced, for the first time in history, that corporations have the same rights as individuals to spend money on the electoral process, and corporate personhood was at the heart of the Court’s opinion. In Justice Kennedy’s view, corporations are simply “associations of citizens,” and therefore deserve the same constitution rights as living persons. The Court’s opinion interred a century of campaign finance law built on the idea that corporate participation in the electoral process must be strictly regulated for the sake of our democracy.

The Court’s conservative majority – including the Justices who repeatedly profess adherence to the Constitution’s original meaning – turned their back on our Constitution’s text and history, ignoring that the Constitution was written for and by “We the People,” and that from the framing on, it has been blackletter law that corporations are artificial creatures of the State, subject to government oversight to ensure that they do not abuse the special privileges granted to them to succeed in business. As Justice Stevens’ brilliant dissent put it, “the Framers took it as given that corporations could be comprehensively regulated in the public welfare.” Rather than own up to constitutional first principles, both Kennedy’s majority opinion and Justice Scalia’s concurrence blithely dismissed them. Both Kennedy and Scalia repeatedly relied on constitutional protection for the media in arguing that the Constitution gives the same rights to corporations and the people, ignoring that the press were the only private business given explicit constitutional protection in the Constitution. Justice Scalia even goes so far as to suggest that the framers would actually have liked modern corporations if they only they had the chance to see them in action. Those who take constitutional text and history seriously should be appalled that this is what passes for legitimate argument by the leading originalist on the Court.

In fact, Michael Greve’s initial take is more in line with Justice Stevens’ dissent than either Justice Kennedy’s majority opinion or Justice Scalia’s concurring opinion. It was Stevens’ dissent, not the 5-justice conservative majority, that adopted Greve’s “common sense” position: “corporations do not enjoy the same rights as individuals.” Kennedy’s majority opinion, on the other hand, rejected this “sensible” notion, treating corporations as nothing more than “associations of citizens” deserving equal rights as living persons. Read more »

by Doug Kendall, President & Founder, and Hannah McCrea, Online Communications Director, of Constitutional Accountability Center (CAC)

Over at Salon, Glenn Greenwald has been urging calm among progressives who are appalled and angry at the Supreme Court’s ruling last week in Citizens United v. FEC, and accusing progressive critics of the ruling of over-simplifying the law and under-respecting the First Amendment. But his own analysis is surprisingly shallow and his burden is pretty high when he is essentially saying that Justice Stevens’ brilliant and comprehensive 90 page dissent, joined in full by Justices Ginsburg, Breyer, and Sotomayor, gets the Constitution wrong, and the five conservatives on the Roberts Court got this one right.  He doesn’t come close to making that argument stick.

Greenwald, of course, is widely and appropriately respected among progressives for his aggressive defense of constitutional principles and their abuse in the execution of this country’s “War on Terror.”   Indeed, it is precisely because Greenwald has assumed a role as a leading authority on the Constitution within the progressive community that his recent defense of the Court’s decision in Citizens United is alarming, and warrants response.

Greenwald’s main beef with progressive critics of the ruling is that we are fighting issues such as “money is speech” and “corporate personhood,” which are not really front and center in the case.  To Greenwald – as to the majority – Citizens United is simply about the First Amendment and nothing else.  Greenwald writes:

I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.  Does anyone doubt that the facts that gave rise to this case — namely, the government’s banning the release of a critical film about Hillary Clinton by Citizens United — is exactly what the First Amendment was designed to avoid?  And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?

Whether one calls this an “absolutist” view or just an “overly simplistic” one is, perhaps, a matter of semantics, but Greenwald is missing the point.  Yes, individuals should have the right to form and express political views, whether as a voting bloc, an alliance of protestors, or a legally-recognized entity that collects individual donations to advance a political message.  If the Court had written a narrow opinion vindicating the speech of such groups, it is likely that we would have seen a unanimous opinion.  After all, at oral argument, Justice Stevens himself argued for precisely this result. Read more »

Progressives may have thought the victory of Scott Brown in Massachusetts earlier this week was bad news, but today’s Supreme Court 5-4 ruling in Citizens United v. FEC may ultimately prove far more devastating.

That is because today, the Court’s conservative majority re-wrote the Constitution to give corporations—never mentioned in the Constitution—the same right to influence the electoral process as ‘We the People.’  As the NYT’s Adam Liptak explains, “Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court … ruled that the government may not ban political spending by corporations in candidate elections.” The justices did what many progressives feared for months they would do:  hold that long-standing restrictions on corporate campaign spending violate the First Amendment.

The Court’s ruling could transform our electoral politics.  During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion.  With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.

As overwhelmingly demonstrated by Justice John Paul Stevens’ breathtaking dissent – read aloud from the bench and joined by Justices Ginsburg, Breyer, and Sotomayor — today’s ruling is startlingly activist and plainly contrary to constitutional text and history.  Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them.  Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone.   In a profoundly wrong interpretation of the First Amendment, the Court granted corporations the right to drown out the voices of individual Americans in our Nation’s elections. Read more »

by Xan White, Research & Special Projects Associate, Constitutional Accountability Center

There is already a vast amount of commentary on today’s revolutionary—and not in a good way—campaign finance ruling in Citizens United; here’s our statement on the case, and we will post our own analysis of the decision shortly.

For the moment we would like to highlight some of the best quotes from Justice Stevens’ remarkably powerful 90-page dissent.  Looking for classic Robertsian “judicial restraint”?  You won’t find it in the majority opinion or in the Chief Justice’s concurrence.  Principled originalism, a la Scalia and Thomas? Again, you won’t find it in the majority opinion that the self-professed “originalists” joined, but instead in Stevens’ dissent, which offers a tremendous quantity of evidence showing that American legislators since the Founding have regulated undue corporate influence on politics without running afoul of the First Amendment. The entire opinion is worth a read, but for those who can’t digest all 90 pages this afternoon, here are a few key highlights after the jump: Read more »

More soon:

WASHINGTON, DC — The Supreme Court today re-wrote the Constitution to give corporations—never mentioned in the Constitution—the same right to influence the electoral process as “We the People.”

The federal political process is the centerpiece of our constitutional democracy.  Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone. Two centuries ago, the Supreme Court under Chief Justice Marshall recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them.  But today, in the name of the First Amendment, the Court gives corporations the right to drown out the voices of individual Americans.

The Court’s ruling could transform our electoral politics.  During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion.  With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.

The Court’s decision today is startlingly activist and a sharp departure from constitutional text and history; our democracy will suffer for it.  We can only hope that the ruling is as short-lived as it is wrongly decided.

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Constitutional Accountability Center is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. CAC filed a brief in Citizen’s United on behalf of itself and the League of Women Voters.   CAC has also released a discussion draft of a forthcoming report, tentatively titled “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution, which fleshes out the main point of our brief: the argument that corporations do not have the same constitutional rights as individuals, particularly when it comes to influencing electoral politics in this country.

by David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center.  This piece is cross-posted at ACSblog, and opens an ACSblog debate on the constitutional rights of corporations between Mr. Gans and Michael S. Greve of the American Enterprise Institute.  Mr. Greve’s post is scheduled to appear on ACSblog tomorrow.

Citizens United v. FEC raises fundamental questions about our Constitution, and our democracy. It is with good reason that the Court’s failure to decide the case to date has received more press than most actual Supreme Court decisions receive. Citizens United argues that corporations have the same constitutional rights as the American people do to spend money on elections, and that the government may not limit corporate spending on elections. If the Court agrees, our democracy will suffer for it. Obama’s 2008 fundraising records could easily have been dwarfed by a single mega-corporation willing to divert a tiny fraction of its profits to the election of its preferred candidate.

If the Justices decide the case based on the Constitution’s text and history, Citizens United’s sweeping claim would certainly be rejected. In CAC’s forthcoming report, “A Capitalist Joker”: Corporations, Corporate Personhood, and the Constitution” (released as a discussion draft in December and available here), we show that, from the very beginnings of our Nation, the constitutional protections available to living persons and corporations have been fundamentally different. While James Madison wrote the Bill of Rights to protect the “great rights of mankind,” corporations did not have any right to exist, let alone the same fundamental rights as “We the People.” From the founding on, as Chief Justice Marshall explained, corporations were “artificial being[s], invisible, intangible, and existing only in the contemplation of law” and “possess[ing] only those properties which the charter of creation confer. . . . ” To be sure, corporations received a host of special privileges that enabled them to succeed in business and some limited constitutional protection for their property rights, but these corporate attributes subjected them to greater government regulation, not less. Read more »

by Doug Kendall, President & Founder, Constitutional Accountability Center

The retirement decisions by Senators Chris Dodd and Byron Dorgan last week gave pundits and analysts story leads, but a far more important announcement is coming, maybe as soon as tomorrow. The Supreme Court, with its five-justice conservative majority, is expected imminently to release its long-awaited decision in Citizens United v. FEC. The ruling could have a much greater influence on the prospects of progressives in 2010 than any individual candidate’s decision to run. Indeed, the Court could change electoral politics as we know it in America today by perverting the Constitution to bar the people and their elected representatives from limiting corporate political spending.

Citizens United involves a hit-job documentary called Hillary, The Movie, produced by David Bossie for Citizens United to coincide with the 2008 presidential primary season. The case began as a relatively insignificant, technical challenge to the Federal Election Commission’s decision to treat the film’s production and release as “corporate electioneering,” subject to regulation under the McCain-Feingold campaign finance law. It was transformed into a potential blockbuster last June when the Supreme Court ordered the parties to brief and argue the question of whether the law itself, which restricts the political use of corporate funds, is unconstitutional and whether prior cases upholding such restrictions should be overruled.

Citizens United is now arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would jettison a distinction that has been in place in our Constitution since it was written and in our statutory law since the Tillman Act of 1907. As a result, corporations would get a green light to spend unlimited amounts of money in elections. Read more »

Yesterday we learned that the parties in Pottawattamie County v. McGhee, which was argued before the Supreme Court on Nov. 4 and posed a challenge to the court-created doctrine of “absolute prosecutorial immunity,” settled the case and agreed to have the Court dismiss it.

Pottwattamie concerned two African-American men, Terry Harrington and Curtis McGhee, who each spent 25 years in prison for the 1977 murder of a white man before their convictions were overturned by the Iowa Supreme Court following the revelation that Pottawattamie County prosecutors had fabricated evidence against them. Harrington and McGhee then brought a civil rights action against the prosecutors, which made its way to the Supreme Court after the 8th Circuit ruled in favor of the two wrongly convicted men that the prosecutors did not have absolute immunity from liability for their misconduct.  As reported by SCOTUSBlog, the settlement of the case involves a total payment of $12 million to Harrington and McGhee.

More details about this case, and its implications for constitutional text and history, are available here.  As we’ve discussed, the doctrine of absolute prosecutorial immunity is both difficult to apply and contrary to constitutional text and history; thus, the settlement and dismissal of this case  means the Court will not have the opportunity, at least not this Term,  to clarify its immunity jurisprudence – or, more important, to recognize the error of absolute immunity.

However, the parties’ decision to drop the case does leave in place the 8th Circuit’s decision in favor of Harrington and McGhee, which held that in this instance, the prosecutors did not have absolute immunity because the misconduct at issue occurred when the prosecutors were acting as investigators, rather than performing “prosecutorial functions.”  The press release issued by Harrington’s counsel presents an eloquent depiction of the injustices wrought by flagrant prosecutorial misconduct and the need for the Supreme Court to modify its jurisprudence so that more prosecutors will be held to account for constitutional misconduct.

In recognition of the holidays and in light of the “snowcalypse” that has buried our offices and homes, Text & History is taking a little vacation until January 4, 2010. We wish readers a happy holiday season, and look forward to sharing with you more news and commentary on the progressive Constitution in the New Year!