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[Chalice] From the Majority Opinion [Chalice]
to the Minority Opinion

Presented March 7, 2010, by Rev. Dr. Rob Manning

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CITIZENS UNITED is a not for profit corporation that in January of 2008 wanted to show through pay per view a documentary it had created called HILLARY THE MOVIE Bashing hillary Clinton and showing why she was corrupt and a terrible choice and completely unqualified to be president. This was in the middle of the primary season This clearly violated a 2006 law that outlawed "electioneering communication" by corporations or unions within 30 days of primaries or 60 days of a general election."

When Citizens United lost their case, they appealed to the Supreme Court in 2009 and the new court in place agreed to hear the case.

Note that this is a case about a not for profit corporation. So, the court could have considered this case and ruled on it narrowly - focusing only on the rights of not for profit corporations. If you think about it, one obvious question to ask is: How did this case go from a case about a particular non-profit corporation to all corporations; not for profit AND for profit corporations? The court could have restricted itself to a ruling about non-profit corporations and said nothing that would be relevant to Exxon or Chase or Pfizer?

Judge Kennedy answers this in the beginning of the majority opinion when he basically says, "Why restrict ourselves to not for profit corporations when five of us seriously question the constitutionality of limiting free speech of ALL corporations, not for profit and for profit corporations:

We decline to adopt aninterpretation that requires intricate case-by-case determinations to verify whether political speech is banned,especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject.

Justice Stevens in his long and strong dissent, very pointedly addresses this first controversy when he says:

"Our colleagues suggestion that we are asked to reconsider Austin and O'Connell would be more accurate if rephrased to state "that we have asked ourselves" to reconsider those cases.

Stevens then goes on to say the astonishingly direct statement: ". . . essentially, 5 Justices were unhappy with the limited nature of the case before us, so they changed the case in order to give themselves an opportunity to change the law." Stevens also says, "The only thing that has changed since Austin and McConnell is the composition of this Court."

Well like it or not the composition of the court has changed and so has the law with the 5 person majority ruling in CITIZENS UNITED VS THE FEDERAL ELECTION COMMISSION


The five members of the Supreme Court ruled on the side of Citizens United and ruled that restrictions on corporate speech, WHETHER NOT FOR PROFIT OR FOR PROFIT CORPORATIONS, are unconstitutional.

Why did they do this? What are their reasons, their logic?

I am going to divide their reasons up into two categories: Rational and Nutty/Naive!

The basis of their ruling is they believe that the First Amendment to the Constitution gives us the right of free speech and that this right includes citizens as individuals and citizens participating in groups or corporations. We know as individuals we have the right of free speech but what about us together as a group? Does our congregation together have a right of free speech? This ruling says it does and that this communal or corporate right has to be protected and not infringed upon by the government.

Here's a passage from Kennedy's ruling that illustrates this reasonable part of this ruling:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations - including nonprofit advocacy corporations - either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.

The reason I put this in the reasonable category is that some of us might respond to at least some of this by asking: What is wrong with the Sierra Club informing the voters about whether or not a Congressman has supported environmental causes? We might even say, isn't that their right and even their responsibility to inform voters? If we do then we might find ourselves uncomfortably close to Judges Kennedy, Scalia, Thomas, etc. Their reasoning is based on their view that the Constitution gives us the right to speak as individuals and the right to speak as a group, as a collective, whether that collective be the Quincy Unitarian Church, the Sierra Club, the NRA or WAL-MART.

But, you might want to say, surely there is a difference between Sierra Club and WAL-MART! Sure, there are many differences but all those differences disappear in this ruling and are erased by one huge commonality: Both the Sierra Club and WAL-MART are not individuals but collectives, corporations, and they both have the Constitutional right of free speech. Now when it comes to exercising that right in terms of political speech, perhaps if we pool our resources our church could buy one political ad, and perhaps the Sierra Club could buy a thousand and perhaps WAL-MART could buy a thousand every day. The financial situation is irrelevant here, says the Court. What matters is the right of free speech for all three. So says this ruling.

Now here's another part of the reasoning behind this decision that I am willing to put in the rational category. The five Judges say that less restricted, free, and consequently more speech from all kinds of groups and corporations, for profit and not for profit, is actually a good thing for democracy.

it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes.

The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. And it is our law and our tradition that more speech, not less, is the governing rule. "the First Amendment confirms the freedom to think for ourselves" So the Court says Wal-Mart has the ability to bombard the airwaves with its own view of candidates, but then again, so does the Sierra Club and any other not for profit corporation out there.

Here's a 3rd argument that the majority makes that is reasonable: what we have now with corporate speech within 30 days or 60 days of elections but with PACs and 527 organizations is not working. Justice Kennedy in the majority opinion writes something we may credit as rational: "In the 2004 election cycle, a mere 24 individuals contributed an astounding total of 124 million dollars to 26 527 organizations." Yet certain disfavored associations of citizens - those that have taken on the corporate form - are penalized for engaging in the same political speech."

Now, let's talk about the Nutty/Naive arguments put forth to support this ruling.

"The censorship we now confront is vast in its reach. The Government has "muffled the voices that best represent the most significant segments of the economy."

This is where the majority view pushes the boundaries of rationality. Does any rational person in our society truly believe that the voices of our corporations are muffled? Don't we all believe that the voices of Mobil, Bank of America, WAL-MART, actually speak a lot louder and are heard a lot more frequently and more clearly than any one our us individual voices. Who in this country today really thinks that one of the concerns our Supreme Court should be addressing is that the voices of corporations are muzzled in terms of their political influence?

Here's another statement that has to be put in the nutty/naïve category: "On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials. Aren't we so lucky to have all these corporations with all their experts who are going to finally be able to give us all this expert advice, which will of course be completely disinterested, expert advice. I cannot wait for all the commercials and probably even half-hour shows sponsored by all banks and investment firms so their genius experts-who brought us the collapse of the financial industry-can advise on the evils of financial industry reregulation and tell us clearly which politicians see this wisely and which don't. I sure wouldn't want to think about all this complicated financial stuff without the advice of the experts in the financial industries. I just feel so lucky that we are now going to be deluged with their help and good advice thanks to this ruling.

The ridiculousness of this prompts Stevens in his minority opinion to mock the majority view, which argues as if, "corporations were our society's ablest debaters," and that the laws against corporate intervention into politics, "were created to suppress their best arguments."

Here's another view I would put in the nutty/naïve category. "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

Also, "the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy . . . The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.

The majority opinion also states that there are no direct examples of votes being exchanged for expeditures" and that "independent expenditures do not lead to, or create the appearance of quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate." Whew! What a relief! I was so afraid when I saw the hour long special on how corrupt Senator Durbin is sponsored by ADM that they might have more influence with our newly elected Republican senator than I do but now I know that that is not so.

As if this isn't nutty/naïve enough, Justice Kennedy ends his majority opinion by bizzarely comparing HILARY THE MOVIE with the classic Frank Capra movie Mr. Smith Goes to Washington. He dares to argue that if we don't strike down the legal precedent that enables the government to ban Hillary the Movie, and of course not ban it entirely but ban it during the election season, then Mr. Smith Goes to Washington might just be next to be banned. People who cannot see the difference between an individual's right to speak and corporate speech, who cannot see that the Chairman of Wal-Mart actually has a lot more influence than you or I do, cannot see the difference between a hateful pseudo-documentary about a real political figure and a fictional movie about fictional characters. At this point we have reached the night the philosopher Hegel talked about, the night where all cows are black. We have also sailed will past the shores of reason.

What is there for Justice Stevens, writing for the hapless minority to do, but to point out the obvious in long detail. His minority opinion, one of the longest in years, basically shows why although there are five of them, these Justices have no clothes. Surely we have to think about the difference between the Constitutional guarantee of free speech for the individual and political speech by for profit and not for profit corporations. He has to point out the many ways that the framers of the Constitution and of the country were concerned about the corrupting influence of money on our politics even if they didn't live in a world with Coca Cola and Chase. Stevens has to point out that this decision overturns a century of laws and precedents where the legislature and the courts have been concerned about the corrupting influence of money and of corporate power on our political life. And he has to take a more realistic, less ideological view at what this decision will do to our democracy, to the faith people have in our political system.

This is the key issue for the entire country. What will the effect of this decision be on the life of our democracy? Every elected official and every body contemplating running for office will now know that if they are not aligned with the interests of corporations in their area that these same corporations have unlimited resources to oppose them and/or to support their opponents at any time. They all have to try to live their lives as politicians knowing that these corporations can deluge the airwaves with critical ads about them throughout the election season and up to and throughout the day of the election. What will the effect of that be on our politicians and on our democracy?

In Steven's long minority opinion there are many interesting and important arguments but there is one line that stands out among all the others. It is buried in the middle of a paragraph, but it is crucial:




Closing Words:

From the Minority Opinion of John Paul Stevens:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even the notion that business corporations could invoke the First Amendment would probably have been quite a novelty, given that at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.

©2010 Rev. Dr. Rob Manning

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article:
Manning, Rev. Dr. Rob 2010. From the Majority Opinion to the Minority Opinion, /talks/20100307.shtml (accessed July 9, 2020).

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