From what I’ve read, President Donald Trump’s Supreme Court nominee Neil Gorsuch is a brilliant jurist.
But he espouses the idea that corporations are persons under the Bill of Rights. That means it’s highly unlikely he would reverse two cases that must be overturned if we are to end what Trump repeatedly calls the broken system of big money politics. These cases are Citizens United v. FEC and Buckley v. Valeo.
Buckley v. Valeo involves the free-speech right of persons under the First Amendment. The court said voters are dependent on mass media like TV for information, so that expensive forms of communication are “indispensable instruments of effective political speech.” It then struck down limits on electioneering expenditures as substantial restraints on free speech.
Citizens United greatly expanded that language, opening the floodgates to unlimited spending by for-profit and nonprofit corporations. Even the vast resources of corporate general treasuries can be used.
These independent expenditures are not direct donations to candidates’ coffers. Instead, they involve thinly veiled indirect collaborations frequently run by former staff of the candidates. Their products include negative attack-ads on TV.
In the past when enough Americans got together, they could seek remedy from their Congress. No longer. The funding allowed by these cases gives corporations preferential access to lawmakers and financial leverage over them. Elections truly are rigged. And laws are increasingly written by lobbyists for Big Pharma, the financial industry, and other U.S. multinational corporations.
One of the primary reasons cited by Trump supporters for their Presidential choice is Trump’s wealth, which they see as giving him the ability to seek and hold office largely without ties to big money. Public polls repeatedly show a wide swath of Americans want big money out of politics. A 2015 Bloomberg survey about the facts in Citizens United, showed 80 percent of both Republicans and Democrats opposed it.
That is rare unity in a divided landscape.
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James Madison said, “The power of all corporations ought to be limited, (…) the growing wealth acquired by them never fails to be a source of abuses.”
Thomas Jefferson wrote: “I hope that we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”
“Originalist” judges, including Judge Gorsuch, contend they uphold the text of the Constitution — i.e. the original writings and attitudes of the founders. The majority jurists in Citizens United wear the mantle of originalism. They reject “judicial activism” which they see as rendering decisions on the basis of a jurist’s preferred public policy and adding rights that don’t appear in the Constitution as written.
But the founders displayed a sour attitude toward corporations and severely curtailed corporate power. They neither envisioned or championed vast sums of corporate money leveraging political conduct. Honestly, Citizens United and Buckley look more like the dreaded “judicial activism” than originalism.
“There is no evidence … for the claims advanced by originalists that the original meaning of the … First Amendment guaranteed corporations a constitutional right to spend unlimited amounts of money to dominate the election of public officials.” Geoffrey Stone, law professor, University of Chicago, The American Constitution Society, February 2017.
Supreme Court Justice John Paul Stevens dissented in Citizen’s United, berating its primary holding as “novel,” and “rejecting a century of history.” The majority’s idea that “corporations must be treated identically to natural persons” is, Stevens said, inaccurate and unjustified.
As a judge of the 10th Circuit Court of Appeals, Gorsuch concurred in extending even the First Amendment guarantee of religious freedom to for-profit “close” corporations.
That is an ever-expanding notion of corporate personhood.
Picking a conservative to replace deceased Justice Antonin Scalia is one thing.
Probably lots of us wouldn’t like any such conservative nominated. But hey, Trump is the president. And he gets to nominate.
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But is Judge Gorsuch in the judicial mainstream? Not if you look at what Trump supporters think of big money’s role in politics. Not if you look at the Founders of the Constitution. Not if you look at American public opinion.
Adding another lifetime-appointee who favors Citizens United could secure big money in politics for generations. But Americans agree massive spending by corporations and billionaires needs to stop now. The democratic structure can’t withstand a wait of 30 years for a different court attitude toward Buckley and its offspring. We want a justice, conservative or not, who will reverse the corporate “right” to spend-away democracy.
• Linda Svoboda served in the Iowa House of Representatives in the late 1970s. She has been a news reporter, a lawyer and an Iowa state government employee.