I've highlighted in various colours the really essential 'interesting' and unprecedented legal points raised in this three-way discussion re. the recent US Supreme court decision on funding elections.
I really like the concluding remark:
...there are so many signs of people being hungry for involvement in politics. And I think, the odds are against it. But that there's a really substantial chance that a combination of this and what's happening in the financial sector are really going to lead to a populist revival like we haven't seen for 100 years. But it's going to require left working with right. It's not going to happen if it's just a left wing response, and it's not going to happen if it's just the tea parties.
January 29, 2010
BILL MOYERS: Welcome to the JOURNAL.
When the five conservatives on the Supreme Court decided last week that money is speech and corporations have the same rights to spend as much of it buying elections as you do, you could hear the champagne corks popping over at Goldman Sachs, JPMorgan Chase, and Exxon Mobil.
But when the late night talk shows heard the news, they didn't break out the bubbly; they broke out in laughter. At THE DAILY SHOW WITH JON STEWART, correspondent John Oliver made fun of the very notion of corporations as an oppressed minority.
JOHN OLIVER: What a day! With this historic ruling, the last bastion of discrimination in this country has come toppling down. For too long, Jon, corporations have suffered under the yoke of laws, stripped of the basic freedom and dignity guaranteed by our founders [...] For the first time in history, corporations can walk with heads held high, having left their mark on American democracy.
BILL MOYERS: But seriously, folks, is this the end of democracy as we know it? Can it get any worse? My first guests say this is no laughing matter.
Monica Youn directs the money in politics project at New York University's Brennan Center for Justice. She's litigated campaign finance and election law issues in federal courts throughout the country.
Zephyr Teachout, is a faculty member at Fordham University's School of Law, who at this moment is also a Visiting Assistant Professor at Harvard University's Kennedy School. During the presidential campaign of Howard Dean in 2004, she was director of his online organizing, which as you know revolutionized political networking and fundraising.
Welcome to you both.
ZEPHYR TEACHOUT: Thank you.
MONICA YOUN; Thank you.
BILL MOYERS: Now, comedians can be funny and journalists can be facetious, but in very plain language, who won the Supreme Court decision?
MONICA YOUN; Well, corporations clearly won this decision. I mean, essentially, what the court does is it awards monopoly power over the First Amendment to corporations. You can think about the last couple of elections as, you know, the slow rise of the grassroots. And as a result, the political parties, for the first time, had an incentive to start reaching out to small donors, to start cultivating grassroots organizing networks. And you saw what happened in the last election. Now, what the Supreme Court has done here is really a power play. It takes power away from the grassroots, and it puts it squarely back in the hands of corporate special interests.
It threatens to make these grassroots networks irrelevant. To say, you know, it's no longer going to be worthwhile for, you know, parties to look for fundraising opportunities, $20, $100, even $2,400 at a time, if they can just have multimillion dollar support directly from corporate treasuries.
ZEPHYR TEACHOUT: This decision, at base, is about power. And that's why people are responding. That's why people from left and right are responding. This decision means that when you walk past a sign that says Goldman Sachs or Ford, that, what that represents has the same rights that you do to speak about politics, to spend as much money as you want on a political campaign. They are basically equal, and treated as equal entities, even though you're the citizen. That's why there's a really deep grassroots response, is there's a sense that power, political power, is being taken away from the citizen, which is really a core idea of this country.
BILL MOYERS: By permitting corporations to use their own, the money from their own treasuries to advocate for or against a candidate? So, that diminishes the power of the individual?
MONICA YOUN; Well, what the Supreme Court has said by equating money with speech, what the Supreme Court has said is that elections aren't really about votes anymore. What elections are now going to be about is money and who has the most money. And an individual citizen saying, "I can't possibly compete with Wal-Mart, with Exxon Mobil, with Goldman Sachs," is just going to say, "Why should I even bother? My voices will never, my voice will never be heard. My elected official is not going to listen to me. I should just stay home."
BILL MOYERS: But if I understand the decision, it doesn't enable the chairman of Exxon Mobil, or the chairman of GE to write a check to Zephyr Teachout, who's running for Congress from Vermont. It says she can spend as much money as they want to, in the, right up to the election. Right? Advocating that you be elected or defeated?
ZEPHYR TEACHOUT: Yeah. Or, what happens more likely is candidates getting threatened and encouraged. It's a much subtler form of corruption. Where your mind shifts to say, "Well, do I really want to take on that financial transaction tax if I know that Goldman Sachs is going to do an ad campaign?"
MONICA YOUN; And I think that the threat is going to be even more of an important weapon than direct, you know, "Vote for so and so who we like."
BILL MOYERS: How do you mean?
MONICA YOUN; I think there's going to be a threat of corporate funded attack ads against elected officials who dare to stand up to corporate interests. Corporations have basically been handed a weapon. And when you walk into a negotiation, and you know that one person is armed and is able to use a weapon against you, they don't have to take out that weapon. They don't have to even brandish it. You know that they have it. And every elected official who goes up against an agenda on regulatory reform, on climate change, on health care, will know that the corporation who, you know, he or she is opposing, can fund a, you know, a $100 million ad campaign to take him or her out.
BILL MOYERS: But I mean, our elections are already saturated with money and the outcomes of money before this Supreme Court decision. And I still am trying to understand what is going to be different-
ZEPHYR TEACHOUT: Okay.
BILL MOYERS: -from this decision.
ZEPHYR TEACHOUT: Okay. Let's say you work for Goldman Sachs. You mentioned Goldman and I like talking about Goldman, because they're the smartest political party I know in the country.
BILL MOYERS: Goldman Sachs?
ZEPHYR TEACHOUT: Yeah.
BILL MOYERS: "Mr. Sachs", right.
ZEPHYR TEACHOUT: No, they're very effective, politically, as a company, in their lobbying and in their ability to influence people's thoughts about -- directly.
BILL MOYERS: Right.
ZEPHYR TEACHOUT: So, up until now there have been a series of laws that have restrained Goldman's direct political involvement. And they have a political team, but for the most part, they don't have a team that is looking at the country, trying to figure out which races to get involved in early. Now, what this decision does is say, "We give you the sanction, we actually encourage you as an important, vibrant part of our society to engage." Now, that may be a difference of degree, but differences of degree are everything in politics.
MONICA YOUN; It used to be that when corporations got involved in elections, they would do so kind of skulking around by subterfuge. And what this decision does is it says the Supreme Court of the United States says that you, a corporation, have a First Amendment right to buy as much influence as you can afford. You go out there and get them.
BILL MOYERS: But, you know, some people would say, "That's all right. This is a free market society. America's all about free markets. What's wrong with that? That is a basic American value."
MONICA YOUN; The marketplace of ideas doesn't give any one, any corporation or any individual the constitutional right to buy an election. I mean, the First Amendment is an important part of our Constitution, but so is the idea that this is a democracy. This is -- no matter this is a society based on the idea of one person, one vote. And our elections should not be marketplaces. They should be about voters. They should be about helping the electorate make an informed decision. And the electorate is not going to be able to make an informed decision if all they can see on the air, if all they can, you know, hear on the radio are, you know, attack ads funded by hidden corporate agendas.
ZEPHYR TEACHOUT: I would say that it's -- we're a society of freedom and markets. And political freedom is so important. Political freedom means the freedom to speak and say what you as an individual citizen believe, the freedom to vote. And it means having some power in your society. And then we have this extraordinary system of markets. But it's very dangerous when the two mix. It's not just that it's bad for politics, it's also bad for markets. If you have Ford more focused on spending millions of dollars on trying to influence a congressional race, instead of making the best environmentally efficient car, we all lose. It moves towards a society where markets and freedom are confused, instead of both sort of separate values.
BILL MOYERS: But the court was talking about a very limited matter. The First Amendment, and whether or not it permits speech. What's important is the First Amendment forbids the government from interfering with speech. And that applies to anybody who speaks.
MONICA YOUN; But the problem with that is when you are talking about money being equivalent to speech. And corporations being equivalent to people. It's as if you're saying, "Okay, I'm going to put an ordinary person in a boxing ring against a Sherman tank and that's a fair fight. May the best fighter win." You're talking about artificial constructs that were built to accumulate money. That's the purpose of a corporation. There's nothing wrong with that. As long as that economic inequality does not directly translate into political equality. There's a reason our Constitution was set up the way it was. And there's a reason that you can't buy an election. Because we didn't intend for those who have the most money just to be able to get everything in the system the way they want it, every time.
BILL MOYERS: So, did the Supreme Court declare, in effect, that a corporation is a person, like the three of us, endowed by the Creator with certain inalienable rights? Is that what it was saying, in effect?
ZEPHYR TEACHOUT: I don't recommend-- on the most part you should stay away from legal opinions, if you can avoid them. But I encourage people to read this opinion because there's some really weird sections. Where Justice Kennedy says "Government cannot stop people from speaking. And anyone who it stops," I'm not quoting exactly, but there's pronoun switches that put "who" and "those" and "they" switching people and corporations in and out. And it seems like, you know, if you almost read it as a literary text, he does have this respect for these legal creations as individuals whose political interests we ought respect.
MONICA YOUN; And there's a very strange alternative reality aspect to the decision. It's like you're reading a work of science fiction. At one point Justice Kennedy says, "Government has muffled the voices of corporations." And-
ZEPHYR TEACHOUT: No, no. It's worse. He says, "muffled the most," and then he quotes from Scalia, "the sort of best advocates for the most important interests in our economy."
MONICA YOUN; And so, the idea being that we don't know what Exxon Mobil thinks about climate change. We don't know what Goldman Sachs thinks about financial regulation, because those corporations have somehow been unable to make their viewpoint known on the Hill.
ZEPHYR TEACHOUT: But this is not just a First Amendment question, as you suggested. This is a question of what kind of society do we want to live in? How do we want it to work when a group of people call their representative? Does she answer the phone? Whose phone call is she taking?
MONICA YOUN; And in a system, you know, the preamble to the Constitution is all about "We the People." And it sets up a vision of representative self government. One in which the citizen is the sovereign and the citizen rules. And was "We the People" meant to include corporations, this artificial legal entity? I mean, should corporations now be able to vote? Should they be able to hold office?
ZEPHYR TEACHOUT: And there's this beautiful passage in Stevens' dissent, where you can feel his -- he wrote one of the longest dissents in recent history. And you can feel his -- I think very heartfelt anxiety as he's confused. "What is this thing we are giving these rights?" And these are not small rights. These are rare in human history that you have a right like the right to speak freely, politically. We had, you know, we're dealing with in the sophist way in giving it to a corporate form. It's very strange.
BILL MOYERS: Giving it to a corporate form, as I understand the decision, which enables it on the night before an election, if it wants to, it may not want to, but if a corporation wants to, to run a series of ads saying, "Don't vote for candidate Teachout or candidate Youn, right?" And that's a right, as I understand it, that corporations have not had.
MONICA YOUN; So, yeah, that's correct.
BILL MOYERS: To run an ad a night before the election, saying vote for this candidate or against that candidate.
ZEPHYR TEACHOUT: Okay, see, imagine a Senate race in a few years. And, efforts to break up the banks got into a higher pitch. And a candidate recognizing that people in her state are very supportive of this effort to break up the banks. But the polls are close. So, she comes out with a strong statement saying, "I want a per se cap on how big a bank can be. In the billions, okay?" That night, there can be ad hominem attacks funded by Goldman Sachs, Morgan Stanley on her, directly paid, that cover the airwaves. Now, not only can that happen, but she knows that can happen. How likely is she to take on one of the most important economic questions that we have right now. Is how to structure our financial industry. When she knows the financial industry is already spending $400 billion -- $400 million in a year on lobbying?
BILL MOYERS: Well, proponents of this ruling point out that unions are also freed up by the decision. Have they created a level playing field here between the corporations and the unions?
MONICA YOUN; Well, the short answer to that is that if you compare unions' available funds versus corporation's available funds, we're not talking about a real fight here. But I think the more important fight is why should the only people whose viewpoints count in this, be large organizations with money? Whether that be the unions or the corporations? Why shouldn't ideas be dealt with on their merits? And why shouldn't ideas be dealt with by the number of votes they can command, as opposed to the amount of dollars they can spend?
ZEPHYR TEACHOUT: I also want to go back to something you said earlier about sort of we all know, what was it? The threat of money-
BILL MOYERS: Implied threat that if you do something I don't like, I'm going to, and I have a lot of money, I'm going to make you pay for it in the next election.
ZEPHYR TEACHOUT: So what I want to say is not only do we all know it, but this is actually fundamental to our Constitution. Our founders knew it. Hamilton knew it. Madison knew it. And they talk about the importance of keeping the temptations and threats of money outside of politics. They weren't naive. And we're not naive. We don't have a vision of money entirely outside of politics. But it's not just that it's common sense. It's a common sense that's embedded in our best traditions. This idea that we should try to create structures that avoid those, that experience of threat and temptation on the part of our politicians.
BILL MOYERS: The decision seems at odds with some of the very positions taken by some of the people who wrote it. I mean, for example, we've heard a lot from conservatives about "judicial activism." That is, judges, liberal judges, Earl Warren and others, actually making decisions that usurp the power of the legislature. So, let me play you an excerpt from Roberts' nomination hearings, when he is talking about judicial activism.
JOHN ROBERTS: Judges and justices are servants of the law, not the other way around...Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath...I do think that it is a jolt to the legal system when you overrule a precedent...it is not enough that you may think the prior decision was wrongly decided...the role of the judge is limited; that judge is to decide the cases before them; they're not to legislate; they're not to execute the laws."
BILL MOYERS: Is that what he was doing last week?
MONICA YOUN; Absolutely not. This started out as a case about a very narrow issue. It's, is this 90 minute infomercial attacking Hillary Clinton, is this a corporate campaign ad or is it not a corporate campaign ad? And what the court did is they said, "Well, you know, we could rule on that question, but instead let's talk about this entire topic of whether corporate spending in elections should be limited."
BILL MOYERS: In other words, that question was not in the case, that the judges reached out and brought to the court.
ZEPHYR TEACHOUT: It was not only not in the case, but the parties stipulated that they wouldn't have to deal with these questions. And the judges reached out. The justices reached out and decided to make this statement of their view of corporate independent expenditures.
MONICA YOUN; And this is so disturbing, because one reason that, in that clip, the chief justice is paying, you know, homage to the idea of judicial modesty is people recognize that in this system judges are given a great deal of power. Judges can not only say, "Oh, what you did, Congress, was wrong. But forever more, you are barred from doing anything like that again. That option is completely off the table now." But the way that's limited in our constitutional system is that judges are only supposed to decide the particular case in front of them. They're not going to -- they're not supposed to say, "Oh, we don't like that particular area of the law. Let's just go out and change that, just because we have the five votes to do so." And I can think of very little more scary for our democracy than a five, you know, justice majority that finds itself unconstrained by precedent. That finds itself unconstrained by the case before it. And feels like it can just go out there and pursue its own agenda.
ZEPHYR TEACHOUT: This case did overrule established precedent. It dealt with an issue which could have been dealt with on several different minor grounds. Much, much narrower grounds. And this -- these laws against corporate expenditures came after massive public response to what they perceived to be corruption in the system. Passed by Congress with enormous amounts of support. And there are times when justices should get involved. And say, "No, no, no. There is a minority here that is not being protected. There are interests that the public isn't hearing." But here the justices were not reaching out to protect an unheard minority, but rather to protect one of the loudest voices we already have in our politics.
BILL MOYERS: Well, John Oliver said it's an oppressed minority. Corporations are an oppressed minority, right? But what now? What do you think can be done to counter, if one wants to counter, the -- this decision?
MONICA YOUN; You know, I have faith that this decision is a constitutional aberration. And I feel like the shock that this decision has resulted in across the left and the right will hopefully show the court that they have taken things too far. That the results of their logic is no longer democracy, which is rule of the people, but which is plutocracy, rule of the wealthy.
ZEPHYR TEACHOUT: I think that ten years ago ordinary citizens felt really left out of politics. And we saw that start to change. We saw in the last election, on both sides, we saw people -- you know, feeling like they gave $100, they went out there, they knocked on doors, they got people to the polls, and that mattered. And that was the focus of the election. That was what mattered in an election. And I think what we're going to start to see, maybe not immediately, but certainly down the road if this trend is not changed, is that's going to stop mattering anymore. That's not going to be important. What's going to be important is corporate spending.
ZEPHYR TEACHOUT: I'm more hopeful than you are, despite my despondent initial response. I think there are so many signs of people being hungry for involvement in politics. And I think, the odds are against it. But that there's a really substantial chance that a combination of this and what's happening in the financial sector are really going to lead to a populist revival like we haven't seen for 100 years. But it's going to require left working with right. It's not going to happen if it's just a left wing response, and it's not going to happen if it's just the tea parties.
BILL MOYERS: Monica Youn and Zephyr Teachout, thank you very much for joining me on The JOURNAL.
MONICA YOUN; Thank you.