A Citizens Dissent

I refuse to let the palantir erase it. Wendell Berry is one of those rare, brave voices speaking today, one who enrages both Democrats and Republicans because he doesn't cheerlead for either of them or tow their party lines. Socialist-leaning Democrats and Imperialist-leaning Republicans need to read him, and this book.

This is the book that includes Berry's famous New York Times statement, "A Citizen's Response to the National Security Strategy of the United States of America," that has quickly become one of the most important pieces of expository writing in American civil discourse. The Orion Society, which printed the statement in the NYT and has also published Berry's powerful In The Presence of Fear in book form, is to be congratulated for making this essay available so quickly in book form.

The companion essay by David James Duncan is extraordinary in its own right. Uncompromising, passionate, and altogether wise! The truths discussed in this book in have continued to become more and more important to the hopeful recovery of our nation. A good starting point is to read this clear and accessible work.

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Get fast, free shipping with Amazon Prime. Get to Know Us. English Choose a language for shopping. Explore the Home Gift Guide. Amazon Music Stream millions of songs. Amazon Advertising Find, attract, and engage customers. Ante , at 2, 8. Yet he would seemingly read out the Free Press Clause: How else could he claim that my purported views on newspapers must track my views on corporations generally? Ante , at 6. Justice Scalia appears to believe that because corporations are created and utilized by individuals, it follows as night the day that their electioneering must be equally protected by the First Amendment and equally immunized from expenditure limits.

See ante , at 7—8. That conclusion certainly does not follow as a logical matter, and Justice Scalia fails to explain why the original public meaning leads it to follow as a matter of interpretation. The Court enlists the Framers in its defense without seriously grappling with their understandings of corporations or the free speech right, or with the republican principles that underlay those understandings. In fairness, our campaign finance jurisprudence has never attended very closely to the views of the Framers, see Randall v. Sorrell , U. We have long since held that corporations are covered by the First Amendment , and many legal scholars have long since rejected the concession theory of the corporation.

To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is. At the federal level, the express distinction between corporate and individual political spending on elections stretches back to , when Congress passed the Tillman Act, ch. It is in the interest of good government and calculated to promote purity in the selection of public officials. President Roosevelt, in his annual message to Congress, declared:. Automobile Workers , U. It is enough to say that the Act was primarily driven by two pressing concerns: CIO , U.

Over the years, the limitations on corporate political spending have been modified in a number of ways, as Congress responded to changes in the American economy and political practices that threatened to displace the commonweal. Justice Souter recently traced these developments at length. The Taft-Hartley Act of is of special significance for this case. In that Act passed more than 60 years ago, Congress extended the prohibition on corporate support of candidates to cover not only direct contributions, but independent expenditures as well.

Our colleagues emphasize that in two cases from the middle of the 20th century, several Justices wrote separately to criticize the expenditure restriction as applied to unions, even though the Court declined to pass on its constitutionality. Ante , at 27— Two features of these cases are of far greater relevance. First, those Justices were writing separately; which is to say, their position failed to command a majority. Prior to today, this was a fact we found significant in evaluating precedents.

FECA codified the option for corporations and unions to create PACs to finance contributions and expenditures forbidden to the corporation or union itself. By the time Congress passed FECA in , the bar on corporate contributions and expenditures had become such an accepted part of federal campaign finance regulation that when a large number of plaintiffs, including several nonprofit corporations, challenged virtually every aspect of the Act in Buckley , U.

Buckley famously or infamously distinguished direct contributions from independent expenditures, id. National Conservative Political Action Comm. Not a single Justice suggested that regulation of corporate political speech could be no more stringent than of speech by an individual. Four years later, in Austin , U.

We held they could be. In light of the corrupting effects such spending might have on the political process, ibid. In the 20 years since Austin , we have reaffirmed its holding and rationale a number of times, see, e. Colorado Republican Federal Campaign Comm. How does the majority attempt to justify this claim? Selected passages from two cases, Buckley , U.

The Federal Congress and dozens of state legislatures, we now know, have been similarly deluded. But this elegant phrase cannot bear the weight that our colleagues have placed on it. It is not apparent why this is relevant to the case before us. The majority suggests that Austin rests on the foreign concept of speech equalization, ante , at 34; ante , at 8—10 opinion of Roberts , C. The case on which the majority places even greater weight than Buckley , however, is Bellotti , U. Bellotti , in other words, did not touch the question presented in Austin and McConnell , and the opinion squarely disavowed the proposition for which the majority cites it.

The majority attempts to explain away the distinction Bellotti drew—between general corporate speech and campaign speech intended to promote or prevent the election of specific candidates for office—as inconsistent with the rest of the opinion and with Buckley.

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Ante , at 31, 42— Yet the basis for this distinction is perfectly coherent: Austin , U. Berkeley , U. League of Women Voters of Cal. Bellotti , apparently, is both the font of all wisdom and internally incoherent. The Bellotti Court confronted a dramatically different factual situation from the one that confronts us in this case: As might be guessed, the legislature had enacted this statute in order to limit corporate speech on a proposed state constitutional amendment to authorize a graduated income tax.

The statute was a transparent attempt to prevent corporations from spending money to defeat this amendment, which was favored by a majority of legislators but had been repeatedly rejected by the voters. Bellotti thus involved a viewpoint-discriminatory statute, created to effect a particular policy outcome.

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To make matters worse, the law at issue did not make any allowance for corporations to spend money through PACs. This really was a complete ban on a specific, preidentified subject. The majority grasps a quotational straw from Bellotti , that speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation.

Ante , at 30— Of course not, but no one suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the expenditures at issue were subject to First Amendment scrutiny, the restrictions on those expenditures were justified by a compelling state interest. But we found no evidence that these interests were served by the Massachusetts law. Austin and McConnell , then, sit perfectly well with Bellotti. Indeed, all six Members of the Austin majority had been on the Court at the time of Bellotti , and none so much as hinted in Austin that they saw any tension between the decisions.

The difference between the cases is not that Austin and McConnell rejected First Amendment protection for corporations whereas Bellotti accepted it. The difference is that the statute at issue in Bellotti smacked of viewpoint discrimination, targeted one class of corporations, and provided no PAC option; and the State has a greater interest in regulating independent corporate expenditures on candidate elections than on referenda, because in a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets.

These understandings provided the combined impetus behind the Tillman Act in , see Automobile Workers , U. Time and again, we have recognized these realities in approving measures that Congress and the States have taken. None of the cases the majority cites is to the contrary. The only thing new about Austin was the dissent, with its stunning failure to appreciate the legitimacy of interests recognized in the name of democratic integrity since the days of the Progressives.

The majority recognizes that Austin and McConnell may be defended on anticorruption, antidistortion, and shareholder protection rationales. Ante , at 32— It badly errs both in explaining the nature of these rationales, which overlap and complement each other, and in applying them to the case at hand.

While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment. It disregards our constitutional history and the fundamental demands of a democratic society. Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind.

See McConnell , F. As summarized in her own words:. The record also indicates that Members express appreciation to organizations for the airing of these election-related advertisements. Likewise, a prominent lobbyist testifies that these organizations use issue advocacy as a means to influence various Members of Congress. The Findings show that Members suggest that corporations or individuals make donations to interest groups with the understanding that the money contributed to these groups will assist the Member in a campaign.

After the election, these organizations often seek credit for their support…. Many of the relationships of dependency found by Judge Kollar-Kotelly seemed to have a quid pro quo basis, but other arrangements were more subtle. Her analysis shows the great difficulty in delimiting the precise scope of the quid pro quo category, as well as the adverse consequences that all such arrangements may have. There are threats of corruption that are far more destructive to a democratic society than the odd bribe. This value has underlined a century of state and federal efforts to regulate the role of corporations in the electoral process.

And whereas we have no evidence to support the notion that the Framers would have wanted corporations to have the same rights as natural persons in the electoral context, we have ample evidence to suggest that they would have been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that the Court today discounts to irrelevance. When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of.

Even in the cases that have construed the anticorruption interest most narrowly, we have never suggested that such quid pro quo debts must take the form of outright vote buying or bribes, which have long been distinct crimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder. A democracy cannot function effectively when its constituent members believe laws are being bought and sold.

In theory, our colleagues accept this much. Although the Court suggests that Buckley compels its conclusion, ante , at 40—44, Buckley cannot sustain this reading. But Buckley did not evaluate corporate expenditures specifically, nor did it rule out the possibility that a future Court might find otherwise. The opinion reasoned that an expenditure limitation covering only express advocacy i. Certainly Buckley did not foreclose this possibility with respect to electioneering communications made with corporate general treasury funds, an issue the Court had no occasion to consider.

Corporations, as a class, tend to be more attuned to the complexities of the legislative process and more directly affected by tax and appropriations measures that receive little public scrutiny; they also have vastly more money with which to try to buy access and votes. Business corporations must engage the political process in instrumental terms if they are to maximize shareholder value. The unparalleled resources, professional lobbyists, and single-minded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they or their conduits or trade groups spend unrestricted sums on elections.

It is with regret rather than satisfaction that I can now say that time has borne out my concerns. Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements. In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.

It would have been quite remarkable if Congress had created a record detailing such behavior by its own Members. Proving that a specific vote was exchanged for a specific expenditure has always been next to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. The influx of unlimited corporate money into the electoral realm also creates new opportunities for the mirror image of quid pro quo deals: Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.

See McConnell, F. In fact, Members will also be favorably disposed to those who finance these groups when they later seek access to discuss pending legislation. Congress and outside experts have generated significant evidence corroborating this rationale, and the only reason we do not have any of the relevant materials before us is that the Government had no reason to develop a record at trial for a facial challenge the plaintiff had abandoned.

If our colleagues were really serious about the interest in preventing quid pro quo corruption, they would remand to the District Court with instructions to commence evidentiary proceedings. The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Virginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court.

In Caperton , then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.

Caperton is illuminating in several additional respects. McConnell , U. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Rather than show any deference to a coordinate branch of Government, the majority thus rejects the anticorruption rationale without serious analysis. Many of our campaign finance precedents explicitly and forcefully affirm the propriety of such presumptive deference. Shrink Missouri, U. In America, incumbent legislators pass the laws that govern campaign finance, just like all other laws.

To apply a level of scrutiny that effectively bars them from regulating electioneering whenever there is the faintest whiff of self-interest, is to deprive them of the ability to regulate electioneering. This is not to say that deference would be appropriate if there were a solid basis for believing that a legislative action was motivated by the desire to protect incumbents or that it will degrade the competitiveness of the electoral process. Perry , U. Jubelirer , U.

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Along with our duty to balance competing constitutional concerns, we have a vital role to play in ensuring that elections remain at least minimally open, fair, and competitive. This kind of airy speculation could easily be turned on its head. Nor does the legislative history give reason for concern. The Constitutionalization of Democratic Politics, Harv. It acknowledges the validity of the interest in preventing corruption, but it effectively discounts the value of that interest to zero.

This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation, it also overlooks the distinctive considerations raised by the regulation of corporate expenditures. Ante , at 34 quoting Buckley , U. The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it.

Austin set forth some of the basic differences. Unlike voters in U. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas. It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on that electioneering are less likely to encroach upon First Amendment freedoms.

Corporate speech, however, is derivative speech, speech by proxy. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officers or directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends.

Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self-expression or cultivating their critical faculties is fanciful. Corporate expenditures are distinguishable from individual expenditures in this respect. Advanced Search Find a Library. Your list has reached the maximum number of items.

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