Thursday, May 13, 2010

Elena Kagan and The Case that Opened the Door: Citizens United v. Federal Election Commission, U.S. Supreme Court Case Summary & Oral Argument

Yesterday I watched Rachel Maddow play an audio clip of Elena Kagan, President Obama's Supreme Court pick, arguing for the Government in the Citizens United v. Federal Election Commission, U.S. Supreme Court Case Summary & Oral Argument case. The point Rachel tried to make was that Kagan stood her ground well, with considerable strength, in the face of Chief Justice Roberts' questions and the questions of Justices Scalia, Breyer and Alito, all right-leaning justices. Clarence Thomas didn't ask any questions. But, what I heard Kagan do was essentially stutter, hem and haw and not give a very good response at all. In fact, she sounded tremendously weak in the face of their questions. My impression was that maybe President Obama made a wrong choice; she didn't sound like a legal scholar or advocate for the common person at all. Rachel didn't do very well supporting Kagan, in my opinion.

So, I listened to the "Reargument," the last summary arguments made by the attorneys before the court made their final deliberations and decision, myself. My head is spinning. For Citizens United (appellant) was Theodore B. Olson, an astonishingly brilliant attorney, as lead attorney with Floyd Abrams as second there on behalf of Senator Mitch McConnel. Elena Kagan was lead attorney for the Government (appellee) with second Seth P. Waxman on behalf of Senators John McCain et al.

I don't claim to know enough about the law to follow the details of the arguments, although I found the entire thing, approximately 1-1/2 hours, spell binding. And, Solicitor General Kagan did much better, in my opinion, in the whole rather than that small audio bite Rachel used. But, I can get a sense of which way the wind blows. Olsen came to court with one claim, that the law was unconstitutional, a very broad claim that Congress was limiting free speech in the Bipartisan Campaign Reform Act. Kagan, however, came to court with five specific claims, two of which were that corporate funding could be traced directly to Quid Pro Quo, the corporate buying of favors from Congress, and shareholder protection, a new claim for the governing law.

It was the two claims that the court majority jumped on for its final decision and more emphasis was placed, it seemed to me, was to thwart the shareholder protection claim. Chief Justice Roberts said, "so it IS shareholder protection that is your claim," to Kagan. "You're taking the side of a Paternalistic Government, a Big Brother watching over us." From that point on, he, Scalia, Alito and Breyer directly and indirectly referred to that claim in their questions. The wind was clearly blowing toward a decision for Citizens United and against Big Brother Government.

I can't help but think the point Kagan should have made is that a corporation or organization spending tons of money for or against a particular candidate is actually saying that all of its members, employees, customers, shareholders are speaking with one voice and I can't believe that's true. At least a member of a union has a choice not to contribute his or her money to any political ad the union leadership may choose. But, corporations or organizations with corporate membership speaks for the board of directors and CEOs only. No choices are given to employees, customers or shareholders. She should have challenged Chief Justice Roberts' claim when he said that all investors in a corporation DO agree with the corporate leadership. That's a mind-boggling statement for a Chief Justice of the Supreme Court to make. Where is and how could he know the proof for that kind of claim? Where is the data to support that claim?

The idea that a handful of people, CEOs and board members, can speak with their own passion and beliefs for all others was repulsive to James Madison. He devoted an entire Federalist Paper explaining how to cure "the mischiefs of faction," such as is created when a small number of people band together to speak for many adversely to the rights of others.

Madison said, "There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests."

He went on to suggest that controlling its effects was key to curing factions, such as what Congress attempted to do with the Bipartisan Campaign Reform Act. But, the Supreme Court appears to have gotten hung up on the "Big Brother" problem, the typical conservative "big government" stand. Who says the court isn't political? In effect, the Supreme Court ruling in favor of Citizens United gave corporate employees, customers and shareholders "...the same opinions, the same passions, and the same interests" as the corporate board and leadership. It's funny that today I received an email from Arkansas' Bill Halter for U. S. Senate campaign claiming that the U. S. Chamber Of Commerce and other Republican organizations are funding deceitful ads against him and for Senator Blanche Lincoln, a pro-corporate Democrat voting against most of Obama's reforms. The U.S. Chamber of Commerce is decidedly against Obama in all things. Many corporations have left it, which speaks volumes about it not speaking in one voice. It's the kind of faction that Madison spoke about. And, then there is Pacific Gas & Electric Company that is spending $35 million for the deceitful Proposition 16 campaign in California. It, too, does not speak for its customers and shareholders, many of whom are supporting a law suit against it for its deceitful claims but, because of the Supreme Court ruling in favor of Citizens United, it can spend its money, paid by its customers, on deceitful political ads.

So, we need a law to control the effects of corporate political spending. It's too bad that Kagan couldn't have framed her arguments differently. But, alas, it may not have mattered with a conservative court anyway. Contrary to the conservative claim that liberal judges are activists, it is their own judges that are activist judges.

Rachel, pick a better audio to make your case.


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