In late February, 2011, a prank phone call to Wisconsin's governor demonstrated the value of so-called "independent expenditures." After Democratic Senators opposed to Governor Scott Walker's "budget repair bill" complained that the governor is "just hard-lined — will not talk, will not communicate, will not return phone calls," Walker accepted a call he believed was from New York billionaire David Koch, a prominent contributor to conservative organizations and causes (including plaintiffs in this case, Americans for Prosperity and Wisconsin Prosperity Network), and whose PAC contributed $43,000 to Walker's campaign. Koch also gave $1 million to the Republican Governor’s Association, which subsequently spent $5 million in support of Walker’s campaign. The caller was actually a blogger who recorded the conversation.
While it may be unsettling that Walker accepted a phone call from an out-of-state "issue advocacy" funder while refusing to speak with his own state's elected representatives, the Citizens United majority acknowledged "[t]hat speakers may have influence over or access to elected officials does not mean that those officials are corrupt." However, Governor Walker’s request for support in the form of independent expenditures was particularly revealing. In response to the phony "David Koch" asking "what else could we do for you down there?" Walker replied:
"Well the biggest thing would be-and your guy on the ground [Americans for Prosperity president Tim Phillips] . . . per your question [], the more groups that are encouraging people not just to show up but to call lawmakers and tell them to hang firm with the governor, the better. Because the more they get that reassurance, the easier it is for them to vote yes."This is a clear appeal to "David Koch" that the groups he funds (including Americans for Prosperity) make "independent expenditures" for "issue ads" or robo-calls requesting citizens call their legislator. The governor clearly recognized that independent expenditures sway public opinion and are valuable to an elected official. Indeed, Governor Walker appeared to believe that "issue ads" are so powerful that it is more important to speak with a man who could make significant independent expenditures favoring his budget bill than to converse with legislators who disagreed with him, but could allow his proposed legislation to proceed to a vote.
11 comments:
If you have a moment...isn't Santa Clara County v. Southern Pacific Railroad (1886) a foundational piece for Citizens United? Supposedly, the Justices in Santa Clara determined that public corporations, like private citizens, have due process and equal protection of the laws under the 14th Amendment. However, the court reporter, J.C. Bancroft Davis, a former railroad executive, stated "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment, which forbids the State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
From what I read, the question of whether corporations were persons within the context of the 14th Amendment, however, was NOT explicitly decided. The Supreme Court NEVER ruled whether corporations were “citizens” and afforded certain inalienable rights.
Is this correct?
If yes, then since 1886, the Supreme Court has reiterated this false assumption that corporations are entitled to constitutional protections, which was later expanded to include political free speech rights. From my research, it would appear that few people have even challenged the justices, past or present, on that distinct point.
I do believe Chief Justice William Rehnquist, a conservative, mentioned the dubious headnote in the Santa Clara case when he wrote a compelling dissent in a 1978 Supreme Court case that expanded corporate personhood. Rehnquist reiterated Chief Justice John Marshall's views in Dartmouth College v. Woodward (1819) a corporation was an ARTIFICIAL BEING possessing the properties which the charter of creation confers upon it--meaning a government granted a business with the ECONOMIC right--not POLITICAL rights--to operate within its borders. Moreover, Rehnquist warned treating corporate spending as the First Amendment equivalent of individual free speech was to "confuse metaphor with reality".
But couldn't have, or why didn't, Rehnquist done more to articulate this point? Why don't today's legal scholars attack Santa Clara to get at Citizens United? Why don't today's legal scholars call out the Justices regarding this "dubious headnote" that became precedent?
Am I wrong? Am I missing something? Thank you for any clarification you can provide when you have time.
Have to get back to you. You're doing your homework.
Corporate personhood has existed since the English common law of the 1600s, which is the foundation of all American law. It was originally the only way to get the crown to respect contracts between universities (ie corporations) and private parties.
The only question in the United States has been the extent to which legal persons enjoy the constitutional protections granted to natural persons. The court decided a long time ago that there is no difference between the two. Citizen's United was not a significant decision until the idiot media got a hold of it. It was just another in a long line of cases saying the same things.
Ninja--"Corporate personhood has existed since the English common law of the 1600s, which is the foundation of all American law."
Yes, in common law there are two types of persons, natural and artificial. But an ARTIFICIAL entity derives its powers from a legislative body. No branch of the U.S. government ever formally enacted corporate personhood "rights". Besides, American law is in many respects different than British law, so I do not know point you are trying to make other than our legal system owes much to our former mother country.
Now, the Fourteenth Amendment does NOT draw any distinction between natural and artificial persons. The intent, however, by those who drafted that Amendment was clearly to apply to HUMAN BEINGS BORN OR NATURALIZED in our country.
It would seem to me that Congress, NOT the Supreme Court, is able to define and protect economic free speech rights for companies (which is necessary for them to conduct their business), and restrict or ban political free speech rights companies, because they are NOT people.
So conservative Justices, beginning in the 1970's and concluding with Citizens United, took it upon themselves to legislate from the bench by granting political rights to corporations, which is the role of Congress, which have been exclusively reserved for citizens.
I thought only liberals were judicial activists!
"It was originally the only way to get the crown to respect contracts between universities (ie corporations) and private parties."
Care to cite your source???
"The court decided a long time ago that there is no difference between the two."
Not quite. And the "precedent" rests on a false presumption, as I clearly illustrated.
Whatever. I'm not going to have some pissy little liberal/conservative debate about activist judges with you.
The principles of English common law are the bedrock of American law. Most common law crimes have now been codified and charges under their common law equivilents are explicitly disallowed, but in many other areas of law we continue to use the common law with very little statutory guidance.
It would present an interesting case for the Supreme Court if Congress were to pass a law specifically denying constituational rights to legal persons, but I doubt that will ever happen so it's moot.
Ninja--"The principles of English common law are the bedrock of American law..."
I got that point already...but you are not being clear as to how it refutes my overall position.
"Whatever. I'm not going to have some pissy little liberal/conservative debate about activist judges with you."
Where did that come from? Did I touch a nerve with you?
"It would present an interesting case for the Supreme Court if Congress were to pass a law specifically denying constituational rights to legal persons, but I doubt that will ever happen so it's moot."
Huh? What? How does this statement even remotely germane to the conversation?
Illy-T--"Have to get back to you. You're doing your homework."
If you are able to, please respond to my initially inquiries and, if possible, what point Ninja is trying to make. I have no idea!
I believe that this article provides the research background that Anonymous is looking for:
http://www.theusconstitution.org/upload/fck/file/File_storage/A%20Capitalist%20Joker(1).pdf
It is an article by David Gans and Douglas Kendall for the Constitutional Accountability Center.
Excellent, thanks, Professor. Now I can watch the ballgame instead.
"Justice Stevens’ brilliant dissent ... "
Amen to that, by the way.
Thank you, Professor (if you come back). Or maybe you could say kudos for me, Illy-T.
The link doesn't work properly, but I found the article I believe you wanted me to read--Capitialist Joker, I presume.
"Excellent, thanks, Professor. Now I can watch the ballgame instead."
I see now, viewing the Packers and the Brewers are much more important than helping an annoying anony understand legal mumbo jumbo. [An attempt at humor]
Hell yes! (Not annoying, btw, and excellent questions.)
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