Thursday, January 28, 2010

Everybody's talkin', Part 1

"We know now that government by organized money is just as dangerous as government by organized mob." - Franklin Delano Roosevelt, October 11, 1936.

Something that has a lot of virtual tongues wagging of late is the Supreme Court decision in Citizens United v. Federal Election Commission, in which the Court both ignored precedent and went beyond the parameters of the arguments of the two sides to throw out over a century of law and jurisprudence preventing corporations from directly funding political campaigns.

Much of the reaction lines up the way you would expect it to: corporations and the right, i.e., the people with the money, are delighted, while clean government activists and the left are anything from upset to outraged.

While there may well be more than this, I'm aware to two exceptions to that pattern, two people normally thought of as being at least generally on the left who supported the decision on the grounds of being First Amendment absolutists: Jonathan Turley and Glenn Greenwald. As much respect as I have for each of them, I think in this case they are flat out wrong and their concerns severely misguided.

It is Greenwald's argument I'll address both because I think it falls well short of its goal of justifying the Court's decision and, more significantly, I was offended by the condescending arrogance with which he advanced it. (While I think Turley was equally wrong in his conclusion, he seemed both more concerned about the implications and less convinced of the unassailable righteousness of his position.)

The shorter and probably clearer way of doing this is not to go through both of Greenwald's columns on the decision via the quote-response route but just to discuss where I think he went wrong. So rather than include lengthy quotes from the columns, I'll say you can find the first here and the second here and leave it to you to read them if you suspect what I say here lacks proper context.

Greenwald pretty much divides up opponents of the decision into two overlapping camps: those who say it "will produce very bad outcomes" and those who say corporations are not people and should not be afforded the same rights.

In dealing with his arguments against the first group, let me say at the top that there is one important point on which I do agree with Greenwald: While I think the direct results of the decision will be bad, I don't think those results will be nearly as bad as some people fear precisely because corporations already wield enormous influence over our political process and the difference between a corporation being able to say, as someone (I can't remember who) said, "Ask Senator X why he kills puppies" and "Vote for Senator Y because Senator X is a puppy-killer" is not itself going to determine if democracy lives or dies. No, the problem with the decision, the danger of it, is not the immediate effect but its existence as precedent and the longer-term impact of the philosophy contained in it, one under which putting any restrictions on money in politics becomes an untenable limit on free speech.

Which is why, incidentally, Greenwald's proposed solution of public financing of elections is a pointless fantasy: If you have it, either you have public financing plus all that other money, which hardly reduces the influence of money (which means, of course, the influence of those that have the money), or you have public financing with restrictions on what other funding candidates can use, at which point some corporation represented by some well-heeled right-wing legal outfit says "Wait a minute! Are you telling me I can't give money to support Candidate So-and-So because they took public financing? That's a denial of my free speech!" Based on what the Court said here, who could object? Certainly not Glenn Greenwald.

Getting to the meat of it, Greenwald's reply to the "bad outcomes" group is to airily dismiss the point as irrelevant.
Either the First Amendment allows these speech restrictions or it doesn't[, he said]. ...

The "rule of law" means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like. ... If the Constitution or other laws bar the government action in question, then that's the end of the inquiry; whether those actions produce good results is really not germane.
In fact, he describes the argument as "irrational" and equates it with what the right-wing "often" does. (Such equations appear several more times in the course of his arguments.)

Leaving aside for the moment the unnecessary slam, what strikes me as irrational is claiming that outcomes are irrelevant. We're not talking here about whether individuals "like" or "dislike" the law, we're not talking about personal preferences, we're talking about a potential harm done to the society as a whole, to the political process itself. For Greenwald to openly acknowledge - indeed tout his awareness of - that risk yet to say in effect that we're Constitutionally helpless to address it seems to me - to use another word he wields against those who disagree with his view - bizarre.

And in a general sense, if outcomes don't matter, if impact is "not germane," then how are slander and libel, how is child pornography, how is shouting "Fire!" in a crowded theater, not free speech? How are laws against false advertising not unconstitutional? Please don't try to say it's because those laws aim to limit harm, that's exactly what the restrictions on corporate money in political campaigns are intended to do: limit harm to the political process. And please don't try to say that the protections of the First Amendment apply only to "expressly political" speech; that idea - popularized by Robert Bork - got shot down long ago.

Greenwald does admit there is a First Amendment-related argument to be made, that of a "compelling state interest" in limiting "speech" as defined as money in political campaigns. However, as in the "outcomes" argument, he doesn't actually deal with it but raises it only to immediately mock it with another of those equations.
Those who want to restrict free speech always argue that there's a compelling reason to do so ("we must ban the Communist Party because they pose a danger to the country"; "we must ban hate speech because it sparks violence and causes a climate of intimidation"; "we must ban radical Muslim websites because they provoke Terrorism").
So disagree with the majority of the Court (and Greenwald) and you're the same as people who would deny free speech to whoever is politically unpopular at the moment - and, it can be assumed by extension, support free speech only for those with who you agree.

Put another way, what Greenwald is saying is "If you disagree with me, you don't support the First Amendment like I do."

You think I'm overstating the arrogance, the condescension? Consider this, where he says that Bushites charged those who objected to Shrub's policies on legal and Constitutional grounds with being
caught up in "legalisms," absolutism and dogmatic purity at the expense of addressing a "real-world" crisis: the threat of Terrorism. "People are trying to KILL US and you're worried about due process." Those same name-calling accusations were made frequently ... last night about those who think the First Amendment actually means what it says and can't be violated in the name of good results ("your absolutism and legalistic purity ignores the real-world problem of corporate influence").
So again: Disagree with me and you're just the same as the people who justified torture, illegal wiretapping, warrantless searches, and denial of due process.

Then there was this:
When a court invalidates Law X or Government Action Y on constitutional grounds, it's always so striking how one's views about the validity of the court's ruling track one's beliefs about the desirability of Law X/Action Y on policy grounds.... Campaign finance laws are popular with readers here, and thus a court decision striking down those laws inevitably will be unpopular (though the public at large - including 2/3 of Democrats - overwhelmingly agrees with the Court's ruling).
Translation: It is just so common that people can't tell the difference between what they want and what's Constitutional. Not like me! "Arrogant" hardly begins to do justice to this.

While we're at it, that reference to the public "overwhelmingly" agreeing with the Court is, let's call it for the moment, problematic.

First, they didn't "agree with the Court's ruling." They couldn't have: The survey was conducted this past October. Next, it was 62% of Democrats, closer to three-fifths than two-thirds, but I suppose that's just some run-of-the-mill overstatement and not really important. What's important is that he didn't say what the rest of the poll said.
Fifty-seven percent of Americans consider campaign donations to be a protected form of free speech, and 55% say corporate and union donations should be treated the same way under the law as donations from individuals are. At the same time, the majority think it is more important to limit campaign donations than to protect this free-speech right. [Emphasis added.]
Indeed, majorities of Democrats and Independents and even a plurality of Republicans - 52% overall - said limiting donations was the higher priority.
More specifically, 61% of Americans think the government should be able to limit the amount of money individuals can contribute to candidates and 76% think it should be able to limit the amount corporations or unions can give.
For Greenwald to pluck out that one number, how many Democrats in hypothetical principle approved the decision, while ignoring the rest of the findings is more than problematic - it's bluntly dishonest.

There's another area where his argument, I say, is dishonest: his treatment of stare decisis (literally, "to stand by decided matters" - that is, to follow precedent). After calling the discussion of the point "intellectually confused," Greenwald allows as how
[i]t's absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions.
But, he insisted, that's another irrelevancy because the Court has overturned precedents to the approval of liberals, citing Brown v. Board of Education and how that overturned Plessy v. Ferguson (1896). But contrary to Greenwald's implication, there was nothing cavalier about the Court's decision in Brown. It directly addressed Plessy and what was wrong with it: Plessy had declared that segregated ("separate") facilities were Constitutional so long as they were essentially the same ("equal"). As applied to public education, the issue before it, the Court in Brown specifically rejected that contention in so many words:
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
Equating that with the sort of "oh, never mind all that" dismissal given to precedent by the Roberts Court is worse than ridiculous, it's deceptive.

I am deeply distressed and the more so the more I think about it. And I haven't even gotten to the issue of corporate personhood. But it's late, I'm tired, and it deserves a better treatment than I can give it now, so that's going to have to wait until later. For now, there will be this and one other post, already written.

First Footnote: Greenwald later posted a podcast interview with ACLU Executive Director Anthony Romero,
where he explains how these laws burden the ability of advocacy groups like the ACLU to have their views heard and why they find these laws so constitutionally troubling.
Apparently Greenwald missed the news that as a result of the Citizens United decision, the ACLU is considering revising its position on campaign finance laws.

Second Footnote: In discussing why he maintains that the decision will have little real impact because of the ineffectiveness of current campaign finance laws, he wrote that
[c]ampaign finance laws are a bit like gun control statutes: actual criminals continue to possess large stockpiles of weapons, but law-abiding citizens are disarmed.
Oh, puke! Did he really say that? What a pile of unmitigated crap.

Not only are "law-abiding citizens" not "disarmed," not with over a third of households owning their share of over 200 million guns, non-fatal gun crimes dropped by more than half between 1993 and 2005 while gun homicides dropped by over 40% over that same time.

Wow. Just - wow.

1 comment:

danps said...

Good post, Larry, and thanks for pointing me to it.

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