The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson
Wednesday, February 24, 2010
Poverty, Rather Than Anti-Anything Ideology, Is the Common Thread
Joseph Stack is not a terrorist in the sense that we apply this word to operatives for al-Qaida and other groups and he certainly is not a Tea Party terrorist. The same is true for Terry Hoskins. However, both these men provide useful illustrations of the link between economic distress and terrorism.
Stack, of course, is the Austin Texas software engineer who last week set fire to his house and then flew his single-engine Piper Cherokee airplane into the Ecehelon building, housing government tax workers. Friends in Austin called him a straight-laced, quiet person who struck them as incapable of such carnage. However, those who knew him longer said Stack had great animosity for the IRS.
Back in the 1980s and 1900s, two entrepreneurial ventures started by Stack ultimately were put out of business by California’s Franchise Tax Board. The first was suspended for non-payment of back taxes totaling $1,153. The second was suspended for failure to file a tax return. Stack acknowledged his errors but was apparently driven over the edge by the federal government’s bailout last year of various troubled banks and auto companies.
Stack wrote that a little guy like him making little mistakes was ultimately hounded by the government in disputes that cost him his marriage, more than $40,000, and “ten years of my life.” Yet when the companies were deemed too big to fail, Stack wondered, “Why is it that a handful of thugs and plunderers can commit unthinkable atrocities . . . and when it's time for their gravy train to crash under the weight of their gluttony and overwhelming stupidity, the force of the full federal government has no difficulty coming to their aid within days if not hours?”
Terry Hoskins probably is not known to most but in my hometown of Cincinnati he was making headlines locally at about the same time as Stack was making them nationally. Hoskins is a successful businessman. Several years ago, he built himself a sprawling, luxurious $350,000 home, complete with swimming pool and tennis courts. Over the years, he got into several payment disputes with RiverHills Bank, which holds the mortgage on his property.
When his brother and former business partner sued Hoskins, the IRS placed liens on his commercial properties. The bank promptly claimed his home as collateral. Hoskins asserts he eventually found someone else to loan him the $160,000 he needed to pay off the mortgage but the bank refused, saying it could get more from selling the house in foreclosure.
“When I see I owe $160,000 on a home valued at $350,000, and someone decides they want to take it – no, I wasn't going to stand for that,” Hoskins said. So two weeks before he was due to turn the property over to the bank, Hoskins rented a bulldozer and turned his dream house into rubble. His business is scheduled to go up for auction on March 2 and Hoskins says he is considering leveling that building too.
Stack and Hoskins clearly committed acts of violence and wanton destruction but are they terrorists?
In response to Stack crashing his plane, Democratic Representative Lloyd Doggett of Texas released a statement calling it “a cowardly act of domestic terrorism.” Austin Police Chief Art Acevedo said he preferred to describe it as “a criminal act by a lone individual.” Jonathan Capehart of the Washington Post reports that caused an acquaintance of his to wryly observe, “If a white Texas guy flies into a government building, it is a contained criminal act.”
Democrats seem eager to depict Stack as a terrorist and none too coyly point out some striking similarities between his list of complaints and the sorts of things sometimes said/yelled at Tea Party gatherings. Republicans call this nonsense, insisting there is no equivalence – ideologically or in results – between Stack’s plane crash versus the men who crashed four commercial jet airliners into the Pentagon, World Trade Center, and a Pennsylvania field, killing thousands.
I have to agree that neither Stack nor Hoskins were likely inspired to their acts by Tea Party rhetoric, even if it turns out they attended or closely followed the events. While these gatherings attract their share of fringe individuals, they are far too loosely organized to be called an anti-government group. Nor is it fair to characterize Tea Partiers as exclusively Republicans, even if they generally trend toward conservatism.
Moreover, as Stack’s suicide note/manifesto, posted on the Internet hours before his death, reveals, the same individual can mix hatred toward big government, big business, and even big religion in equal measures.
However, I think it is a mistake not to consider the presence of distinctly terrorist elements in Stack’s and Hoskins’s mental states and actions. Robert Wright observes in today’s New York Times that, like other terrorists, Stack “saw himself as part of a cause, as one in a long line of fighters against tyranny.” More than a few Americans identify with that cause, even finding a heroic component in Stack’s desperation. Hoskins has received similar expressions of support.
Mark Potok, a Director at the Southern Poverty Law Center, which tracks hate groups, say that extreme and violent acts of rebellion, such as those committed by Stack and Hoskins, “[tap] into a very deep vein of rage against the government.”
Also like other terrorists, Stack had a message to get out and was willing to foster fear through violence until his grievances were addressed. “Sadly,” he wrote, “though I spent my entire life trying to believe it wasn’t so, violence not only is the answer, it is the only answer . . . Nothing changes unless there is a body count.”
Likewise, Hoskins hopes banks view his act of destruction as a kind of veiled threat, leading to a desired end. He told reporters he hoped to “make banks think twice before they try to take someone's home, and if they are going to take it wrongly, the end result will be them tearing their house down like I did mine.”
When a crazed olive-skinned Muslim Army psychiatrist goes on shooting rampage at Fort Hood and/or crazed black-skinned Muslim student attempts to blow up an airplane with an underwear bomb, conservatives accused the Obama Administration as being soft on terror and decried resistance to wide scale profiling of Muslim males as “political correctness.” Yet when the attackers are white, middle-class males, these same conservatives are quick to dismiss them as unconnected lone crazies. It seems a tad inconsistent.
Yet in one sense, they may have a point. Wright and others think the term “terrorist” has become overused and ought to be dropped. I sympathize with their frustration. Terrorists” have come to connote all-powerful super-villains, so evil and so impossible to contain that our ordinary system of laws is powerless against them and citizens should gladly sacrifice basic rights for safety.
However, assuming we keep the term, Stack and Hoskins nicely demonstrate how economic distress can turn to terrorism. Granted, they are/were not Third World impoverished peasants. Both are/were affluent, educated, middle-class men who took advantage of numerous opportunities afforded them and made some foolish choices along the way that came back to haunt them.
Yet if the sudden loss of affluence – and perhaps more important, a sudden sense of no longer being in control – could drive these educated, middle-class men to acts of violent desperation, consider how a life of abject poverty with no hope of advancement might affect Third World Muslims or create guilt in Muslims living in Western democracies.
Radical Muslim clerics do not create the violent hatred that fuels terrorism anymore than Tea Party organizers; they simply use it constructively or destructively toward their own ends. The roots of terrorism and violence lie in poverty and hopelessness.
That is something to think about as we consider the current economic distress sweeping across this country and debate the best ways to address it. We are faced with a situation where more and more middle class are quietly drifting in desperation into an underclass.
If we do not address how to create employment and stem the bleeding of jobs overseas, if we do not address how to reduce the spiraling costs resulting from continued reliance on non-renewable energy sources, if we do not address how to reduce the spiraling costs from out-of-control healthcare and health insurance industries, we are heading for a reckoning.
Failure to deviate from the status quo means that the anti-government and anti-business activists of the near future will not need to poke about the fringes of society to find a few extreme individuals driven to desperation, such as Stack and Hoskins. Instead, their potential converts will be legion.
Monday, February 22, 2010
The Senator’s Frustration is Understandable but He Is Also Part of the Problem
Democratic Senator Evan Bayh of Indiana plans to retire from the Senate because, in his own words, he does “not love Congress.” For a Midwesterner and a moderate, those are pretty inflammatory words. Specifically, Bayh is frustrated with the Senate as an institution because he says political bickering renders it impossible to get anything done and makes going to work a horror rather than an honor.
“There is too much partisanship and not enough progress [in Congress] – too much narrow ideology and not enough practical problem-solving . . . The vast majority [of Congress] are good, decent people who are trapped in a system that does not let that goodness and decency translate itself into legislative accomplishments . . . [Congress must change] so that sensible people can get the job done.”
Presumably, Bayh defines “sensible” as thinking the way he thinks. “The extremes of both Parties have to be willing to accept compromises,” he admonished.
Bayh may be slinking away from the Senate but he assures the same is not true of his commitment to public service. “I simply reached a conclusion that I could get more done to help my state and the American people by doing something in the private sector,” Bayh explained on ABC's Good Morning America, suggesting he might like running a university or charity, maybe even become a corporate CEO.
His fellow Democrats are inclined to believe Bayh’s reasons for packing it in – this is all the fault of Republican obstructionism, they say – but dubious about his proposed solution. “I don't understand how you make things better from the outside,” wondered Democratic Representative Barney Frank of Massachusetts. “I share the frustration, but I would have hoped he would have stayed around.” For most liberals, Bayh is a craven in a high-stakes, ongoing war.
Republicans think Bayh is a craven too but for reasons of their own.
“The fact of the matter is Bayh and moderate Democrats across the country are running for the hills because they sold out their constituents and don't want to face them at the ballot box,” declared RNC Chairman Michael Steele in a written statement. Bayh’s departure is “merely the latest sign” in “the failure once again of liberal governance,” crows a Wall Street Journal editorial.
Today in the Washington Post, Charles Krauthammer confidently asserts, “a President with extensive executive experience, good political skills, and an ideological compass in tune with the public,” would make all these frustrations go away.
Political analysts and pundits are advancing conspiracy theories left and right on the real reason Bayh is leaving. Their conjectures include a feud with President Obama that began when he was passed over for Vice-President in favor of Joe Biden, his desire to run for President himself in the future, a cozy deal within the lobbying industry just like so many other former high-visibility politicians, or maybe even serve as a kind of unofficial spokesperson à la Sarah Palin.
I am willing to take Bayh at his word, more or less – that he is frustrated by an essentially nonproductive situation within the Beltway that shows no sign of easing any time in the near future, despite a looming threat of intense voter dissatisfaction. However, I do believe he is suffering from a couple of misconceptions in his rationale for leaving, no matter how sincere.
First, when Bayh speaks about “moderation,” I believe he is referring to a political process in which pragmatists cut and paste together seemingly irreconcilable partisan views/policies until a compromise is reached in which everybody is happy or at least nobody is terribly unhappy. That is the traditional view of moderates within Congress and they accumulated power and had some legitimate bragging rights to actual accomplishments by following this process.
However, “moderation” in Congress today is less a process for reconciling conflicting principles and become more its own set obstinately held centrist principles. Bayh says, and may actually even think, he is frustrated because vicious partisans will not let him and others of like mind perform their useful function. In truth, he is frustrated because he and others of like mind are now themselves every bit as viciously partisan. Instead of solving problems, they have become part of the problem.
After all, Democratic Senate moderates are every bit as much culpable for helping to derail meaningful healthcare reform, with incessant demands to water it down, as the Democratic House liberals who originally wrote it splendid isolation.
Katrina van den Heuvel, editor of The Nation, recognized this when she wrote in reaction to Bayh’s retirement as a blow to bipartisanship, “the country would be better off with a lot less bipartisanship, in any form, right now . . . Bayh’s idea of bipartisanship, it would seem, was to call oneself a Democrat in the caucus while promoting center-right policies in the chamber.”
Second, far more important than Bayh’s frustration with government is where he plans to go to “make a difference.” Some bewail that a dedicated public servant would find more opportunities to do good for his fellow citizens in the private sector. Other, more skeptical, observers insist that government is no different than it ever was and Bayh’s motivations are entirely self-serving.
Let us assume this is absolutely correct and Bayh is the most power-hungry, self-centered individual in Congress. It is still significant that such a Machiavellian would pursue power not in the U.S. Senate but at the head of a foundation, corporation, or lobbying firm.
As Bayh wrote this past weekend in an op-ed piece for the New York Times, “In my father’s time there was a saying – A Senator legislates for four years and campaigns for two. Because of the incessant need to raise campaign cash, we now have perpetual campaigns. If fund-raising is constantly on members’ minds, it’s difficult for policy compromise to trump political calculation.”
Sure, individuals and interest groups have long poured money into Washington and politicians have accepted it as a necessary evil to finance their campaigns. However, donors were motivated to pay that money because it was understood Representatives and Senators had the power and influence to actualize the things they desired. Today, government servants, especially bipartisan enablers like Bayh, have become unnecessary middlemen.
The role once played by our elected officials is increasingly being outsourced directly to Dollars, Euros, and Yuans. Interest groups often find they can bypass Washington and influence public opinion directly through advertising and propaganda, resulting in the public giving them more of the types of lawmakers they desire. Political ideologues, on both sides, are far more attractive candidates than moderates to such spenders because they represent a more understandable and reliable brand.
Bayh is correct to criticize the current atmosphere in Washington. His critics are also correct to suggest he almost certainly exaggerates both its uniqueness and its severity. However, there is no question that a significant and regrettable paradigm shift is occurring in which moderation is becoming increasingly less a pragmatic problem-solving process and more its own obdurate set of center-right principles.
As for Bayh’s preference for the private sector, that is simply his natural pragmatism rising to the surface. Any dreams for the Presidency that he harbors may be a ill-chosen deviation from that practical path. The recent Supreme Court ruling in Citizens United v. Federal Election Commission only accentuates the trend Bayh already discerns. Money has always meant power in Washington but there was always a tradeoff between the two. Now, the greatest power and influence lies not with those receiving money but with those holding the ability to distribute it.
The “corporatization” of America continues unabated and, for the moment at least, moderation has decided to take a bye. The tactic might work because “bipartisanship,” and “practical common sense,” and “pragmatism,” and “moderation” are what so many Americans claim to yearn after right now. However, after ideologues in the two Parties, have shot it out, any triumphal return by middle-ground candidates is likely to cause only more disappointment to an already dispirited electorate – especially if it is the kind of “moderation” practiced by Evan Bayh.
Wednesday, February 17, 2010
Celebrating Awe and Delight in One Body’s Long Journey
My maternal grandmother is celebrating her 100th birthday this month. When she was born in Cincinnati Ohio, back in 1910, William Howard Taft, another Cincinnati native, occupied the White House, Edward VII, the son of Queen Victoria, sat on the throne of Great Britain, and Russia was still ruled by the czars. Another notable event that year was the appearance of Halley’s Comet in its regular seventy-six year cycle.
Comets have always been a special source of awe and delight to astronomers and stargazers of all types. One reason is that comets are relatively rare, appearing infrequently, especially to the naked eye, and for only a short time. This is because, unlike Halley, most comets take hundreds or thousands of years or more to make their long orbits around the sun. They are the ancient mariners of our solar system.
The other reason for comets’ appeal is their unique appearance. As opposed to other heavenly bodies, seen only as points or short streaks of light, comets feature elongated tails, sometimes millions of miles in length, created by solar winds/radiation. As each comet heads into the sunset of its long journey, its tail streams out behind it like a shadow – a shadow of light, rather than one of darkness. During this milestone, we get a sense not only of where the comet is now but the unfathomable distances it has covered during its prolonged lifecycle.
As our family gathers this week to celebrate my grandmother’s century of life, it occurs to me this is another milestone; one which we ponder with awe over her long journey through time. At a mere five feet and one inch in height, no one will ever accuse her of being a tall woman. Yet it is remarkable how long a shadow she casts over those of us who know and love her.
Her life has had its share of tragedy and sorrow. Married and pregnant at sixteen, she barely survived my mother’s birth and then ultimately raised her as a single parent through abject poverty during the Great Depression.
She cared for her mother and older sister through long and painful fatal illnesses. She divorced her first husband, who abused her physically, and lost her second husband, whom she adored and who adored her in return, to a freak accident. Her great age forced her to bear the burden of watching the deaths of countless friends, her daughter, and one of two beloved nieces.
When her first husband abandoned all support of her and their daughter after the divorce, she went to work to support them as best she could. She had a high school education but no experience and options were limited for women in the 1920s and 1930s. First, she worked a string of odd jobs, most often as a cleaning woman. World War II brought her the opportunity to work on an assembly line, riveting airplanes.
She worked at a paper factory after the war. One morning, she and her second husband arrived at the plant doors to find the company had gone out of business and the pensions on which they had each labored for twenty plus years were suddenly non-existent.
She maintained excellent physical health until her eighties. Then she began an inexorable decline, in which she needed first the aid of a cane to walk and then a walker. Today, she can move around slowly indoors, gripping at walls and furniture, but any trips outside require a wheelchair. She had a stroke around age ninety that left her blind in her left eye. One of her ears is now completely deaf and the other only partially functioning.
In spite of all this, she remains mentally alert and demonstrates a cheerful, generous attitude toward life and others that have been her hallmark. She always swore she loved to clean and even now, when she comes to my house, “What can I do to be useful?” is the first thing she asks my wife and I.
She frets incessantly about the weather. When she hears there is a ten percent chance of rain, to her this means it’s going to rain all day. When she hears about bad weather anywhere in the country, to her this means Cincinnati is going to have bad weather. I stopped trying to argue/talk her out of it long ago.
I think the main reason she has lived so long and with such a youthful spirit is that while she cherishes that which was good within her past, her focus is always on the future. She dotes on her great-grandchildren as she once doted on my sister and me. She loves to talk and laugh with them and they can do no wrong in her eyes – I stopped arguing with her about that long ago too.
My grandmother is heading into the final sunset of her life, of course, but I find no sadness in myself over that and I strongly suspect she feels little enough for herself. Her only regret might be that she will not see everything my children will someday become, that she will never hold the hands of their children and laugh gently with them at things only the very young and the very old understand so well and the rest of us seem to forget in the momentary distractions that we call “making a living.”
She has lived for a century. I have been privileged to stand at the edges of her shadow, sharing the ride, for almost exactly half her journey. At this milestone, I look at that journey in awe. It has always been a delight – for her shadow always has been and always will be one of light rather than darkness.
When we raise our toasts to my grandmother this week, we shall, of course, say, “Congratulations” and “We love you.” But I have also been looking for something else to say – something special and as unique as herself. Now, at last, inspired by comets, I think I have found it. I lift my glass to her and cry “Excelsior!” – ever upwards and onwards.
You see, even after comets have finished their blaze of glory and faded from view, we know they are still traveling somewhere beyond our sight. And if we are lucky, with the passage of enough time, we may see them blaze again. So it may be for her and me.
Friday, February 5, 2010
Admiral Mullen’s Courageous Testimony Invokes the Same Old Tired Response
Shall I ask the brave soldier who fights by my side
In the cause of mankind, if our creeds agree?
Shall I give up the friend I have valued and tried,
If he kneel not before the same altar with me?
. . .
No, perish the hearts and the laws that try
Truth, valour, or love by standards like these!
– Thomas Moore, “Come, Send Round the Wine,” 1808
When former President Bill Clinton announced his intention in early 1993 to allow homosexuals to begin serving openly in the U.S. military, former General Colin Powell, then the Chairman of the Joint Chiefs of Staff, was among those sent scurrying to the White House to talk him out of it. The compromise policy that evolved was christened Don’t Ask, Don’t Tell.
Gay and lesbian soldiers were welcome to serve so long as they kept their sexual preferences secret. Anyone suspected of homosexuality would be investigated; anyone admitting to being gay would be prohibited from joining the military or summarily discharged if already serving.
In the past seventeen years, over thirteen thousand qualified and competent soldiers have been discharged solely because of their sexual orientation. In some cases, soldiers with expensive and badly needed special training have been lost, most notably translators fluent in Arabic.
However, conservative politicians and any senior military officers who would comment on the subject insisted that Don’t Ask, Don’t Tell was good policy. They acknowledged the presence of gays and lesbians in the ranks, even professed to value their service, but asserted the military as a whole was not ready to tolerate openly gay soldiers.
This standoff remained the status quo until Presidential candidate Barack Obama promised to repeal Don’t Ask, Don’t Tell. Gay rights proponents were growing frustrated with the new President’s lack of action until Obama announced, during his recent State of the Union Address, “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.”
Admiral Mike Mullen, the current Chairman of the Joint Chiefs of Staff, was testifying before the Senate Armed Forces Committee this week. On Tuesday afternoon, he was asked what he thought about the President’s intentions.
Mullen, like so many officers before him, could have espoused Don’t Ask, Don’t Tell as a regrettable but necessary evil to maintain esprit de corps. Like Defense Secretary Gates, testifying before him, he might have defaulted to following the orders of his Commander-In-Chief. Instead, the nation’s highest ranking soldier delivered this courageous, decent, and candid opinion.
“Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens. For me, personally, it comes down to integrity – theirs as individuals and ours as an institution.”
His words hit the Republican and conservative Democratic Senators on the panel like a rogue WMD. Mullen did not presume to speak for his fellow Joint Chiefs or the military as a whole. In fact, he made it clear he did not see this as his decision but looked to Congress to uphold or revoke the law.
Nonetheless, the moment Mullen finished speaking, Senators forsook the poet Moore’s appeal to “send round the wine” in the spirit of fellowship and started “sending round the whine” instead.
Back in 2006, Republican Senator John McCain of Arizona told an Iowa State University audience that he supported Don’t Ask, Don’t Tell because military leaders supported it. “The day that the leadership of the military comes to me and says, ‘Senator, we ought to change the policy,’ then I think we ought to consider seriously changing it,” McCain told the crowd.
When the current leader of the military told him just that, McCain pronounced himself “deeply disappointed” with Mullen’s testimony and pointed back to the disapproval of former military leaders as the gold standard by which he intended to continue standing.
Republican Senator Saxby Chambliss of Georgia saw fit to summarize the hypocritical dichotomy that lies at the heart of Don’t Ask, Don’t Tell.
“Today we know we have gay and lesbian soldiers serving. They’ve served in the past. They’re going to serve in the future, and they’re going to serve in a very valiant way . . . [However,] Military life is fundamentally different from civilian life . . . In my opinion, the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would very likely create an unacceptable risk to those high standards of morale, good order and discipline, and effective unit cohesion and effectiveness.”
Chambliss believes soldiers will trust or distrust their fellow soldiers on the battlefield based less on their past demonstrated experience/competence in battle and more about how nervous they feel toward them in the barrack showers.
However, it was Republican Senator Jeff Sessions of Alabama who attacked Mullen most vigorously. Sessions lamented that Mullen had overstepped his authority by offering his opinion on the subject. He feared the results of a study currently being conducted by the military to evaluate the repeal of Don’t Ask, Don’t Tell was now “preordained” to find in favor of doing so. He further worried that junior officers and soldiers in the field might feel forced to change or suppress their true feelings on the subject, given Mullen’s “undue command influence.”
Mullen bore stoically through most of the criticisms but took obvious exception to Sessions’s final remark.
“This is about leadership and I take that very, very seriously,” he tautly replied.
I do not doubt that many actively serving soldiers and, even more so, many veterans oppose allowing gays and lesbians to serve openly. In some cases, their reasons may rise from fear and ignorance but, in many others, it derives from their sincere religious/moral values as well as an abiding love for the institution in which they serve.
Yet while change may not come easily or without mistakes, it will never come by waiting for overwhelming consensus. Instead, much like racial integration, it will come through a mixture of fiat and leadership. President Obama and Congressional Democrats are attempting to provide the fiat; Mullen is stepping up to provide some leadership.
He is right to say the current policy is not only bad for homosexuals but bad for the military as well. An organization that stresses personal integrity is not just encouraging but requiring thousands of its members to lie. An organization that stresses trust as imperative to survival is using hypocrisy to create an illusion of trust. An organization run on clear, unambiguous orders is sending mixed signals by honoring the valor of gays and lesbians but punishing their veracity.
Mullen has shattered a rhetorical bulwark, much loved by conservatives, that no high-ranking, respectable, mainstream U.S. military officer favors – or could favor – repealing Don’t Ask, Don’t Tell and allowing homosexuals to serve openly. We might not all agree with Mullen’s views on this subject but we should all admire his bravery, not to mention his loyalty.
Mullen will not desert comrades in arms or dishonor his troops because some of them “kneel not before the same altar” with him. Everyone in that Senate chamber should have come to attention and saluted – Tuesday afternoon there was an officer on deck.
Thursday, February 4, 2010
The Court’s Ruling in Citizens United Reverses Not Only Austin but also the Conservative Doctine of Strict Construction
Corporations are people too . . . or, rather, they are an “assemblage” of people and thus entitled to freedom of political speech under the First Amendment. This was the recent conclusion of the Supreme Court in the landmark case Citizens United v. Federal Election Commission.
During the last Presidential primary election season, Citizens United, a conservative political group, produced a ninety minute movie extremely critical of candidate Hilary Clinton. Citizens United wanted to air ads for the anti-Clinton movie and distribute it through cable systems' on-demand video services. Federal courts shot down that idea, saying the movie was indistinguishable from a campaign ad and should be regulated like one.
It is arguable that over the past century the general trend among all three branches of government has been increased regulation to moderate undue influence by corporations. In the case of the Legislative Branch, the capstone of their efforts relevant to political speech was passage of the McCain-Feingold Act, which prohibited corporations and unions from broadcasting “electioneering communications” in the thirty days before a Presidential primary and in the sixty days before a general election.
For its part, the Judicial Branch has been more inclined to balance corporate free speech rights against protecting society from their influence during elections. In the 1976 case of Buckley v. Valeo, the Supreme Court upheld a federal law which set limits on campaign contributions but also maintained that spending money to influence elections is a form of protected free speech. Two years later in First National Bank of Boston v. Bellotti, by a narrow five to four margin, the Court ruled that corporations had a First Amendment right to make contributions in order to attempt to influence political issues.
In 1990 the Court ruled in Austin v. Michigan Chamber of Commerce, by a six to three vote, that while corporations and unions could use money to support/oppose general issues or specific legislation, they could be prohibited from using treasury money to support/oppose specific candidates in elections.
The majority opinion in Austin, authored by Justice Thurgood Marshall, introduced a new rationale for limiting corporate political speech in the form of an “anti-distortion interest.” It sought to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
One can argue that Austin was a logical evolution from Buckley and Bellotti, recognizing the powerful combination of corporate mergers and globalization with forms of mass media never before present in American political discourse prior to the (late) Twentieth Century. Other saw Austin as directly contradicting the free speech guarantees of the earlier cases.
One such jurist was Justice Anthony Kennedy. He was among the dissenting minority in Austin and author of the five to four majority opinion that reversed it in Citizens United. In that opinion, he wrote, “Speech restrictions based on the identity of the speaker are all too often simply a means to control content . . . We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”
The chief controversy over this decision has understandably centered on its correctness. President Obama, representing the liberal opposition, went so far as to rebuke the Court during his State of the Union address, saying, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.”
However, for me the most significant and interesting aspect of Citizens United is that it crushingly ends the long-standing Republican contention that judicial activism is solely a liberal peculiarity. The logic in its majority opinion is every bit as activist as anything you will find in Roe v. Wade or any other landmark progressive Court decisions.
Rumors surfaced back in 2008 that Chief Justice Roberts was particularly anxious to add Citizens United to the Court’s docket. After first hearing the case in March 2009, the Court asked the parties to argue it again in September, with particular emphasis on corporate versus individual campaign spending.
However, the real tour de force is the opinion itself. The main thesis of Citizens United’s argument was that their anti-Hillary Clinton movie did not represent an “electioneering communication.” Justice Kennedy begins by tearing their reasoning apart, point by point, with surgical precision. With the plaintiff’s case lying in pieces on the ground around him, Kennedy suddenly veers to reconsider and reject Austin – a case never even mentioned in Citizen United’s original brief – in order to find in their favor.
Early in his opinion, Kennedy concedes, “The Government may regulate corporate political speech through disclaimer and disclosure requirements.” Yet when considering why Citizens United did not simply use a PAC to promote its movie, which would have been completely legal, Kennedy concludes PACs’ disclosure requirements make them unacceptably “burdensome alternatives.”
As Justice Stevens pointed out in his length dissent, not only was the Court inaccurate in its decision “that corporations must be treated identically to natural persons in the political sphere” but also, “Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.”
Both Chief Justice Roberts and Justice Scalia wrote concurring opinions but it would be more accurate to characterize them as “dissenting dissenting opinions,” since they each spend far more time addressing Stevens’s charges of judicial activism than they do with the points of law cited by Kennedy.
Stevens noted the tradition of the Court to avoid broad decisions when more narrow solutions are suitable to a specific case. Roberts counters, “This approach is based on a false premise – that our concurring practice of avoiding unnecessary (and unnecessarily broad) Constitutional holdings somehow trumps our obligation faithfully to interpret the law.”
Scalia, with characteristic grumpiness, rejects Stevens’s notion that the majority decision is not supported by an original understanding of the First Amendment, contending it does so “in splendid isolation from the text of the First Amendment” and never showing why “the freedom of speech that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.” When the Court wants to break with twenty years of precedence, Scalia seems to be saying, the burden of proof lies with . . . precedence.
I cannot deny that I dislike this decision for all of the many reasons cited against it. I am particularly bothered by the anonymity of corporate and union political speech. When Exxon-Mobil pays for a commercial endorsing one candidate or the AFL-CIO pays for a commercial opposing another candidate, what does that really mean? Who was the decision-maker for the expenditure of those funds? Who is held responsible when it is learned that blanketing the airways with ads left a scoundrel into office or forced out a decent public servant on trumped-up charges?
Still, Kennedy and the conservative Justices whose views prevailed in this case may be correct. The First Amendment is not written with many loopholes for restricting speech. The Supreme Court, after all, is meant to be an ongoing battle between opposing ideologies – balancing individuals and groups against society as a whole and tempering fundamental rights with necessary protections.
Regardless, Citizens United sweeps away the Republican conceit that only one ideology represents an impartial interpretation of the law, with the other impossible to practice without requiring disregard of the Constitution and precedence. Judicial activism is alive and well on both ends of the Court’s bench.
Justice Scalia likes to pontificate on a strict construction of the Founders’ original intent. During his confirmation, Chief Justice Roberts contended a judge should be more like an umpire than a player. With their concurring opinions in Citizens United, both demonstrated they are more than willing to dispense with precedence in those areas of the law where they believe the Court has been genuinely mistaken in the past.