45

Nothing to do with Fremont

Most of you newshounds have read that the Supreme Court today rolled back restrictions on corporate (and union) campaign spending. Below is a portion of the dissent from Justice John Paul Stevens:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. . .

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. . .The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.

The problem goes still deeper, for the Court does all of this on the basis of pure speculation. . .

If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by“Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.

In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.”

President Roosevelt, in his 1905 annual message to Congress, declared: “‘All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.’”

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. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. . .

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. See Supp. Brief for Appellee 17 (stating that the Fortune 100 companies earned revenues of $13.1trillion during the last election cycle). 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. . .

. . .the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. . .

The majority cavalierly ignores Congress’ factual findings and its constitutional judgment: 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. It is the denial of Congress’ authority to regulate corporate spending on elections. . .

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. 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. It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least. . .

When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders “‘call the tune’” and a reduced “‘willingness of voters to take part in democratic governance . . .’”

The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm. . .may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, “provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation. . .”

The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.

Matt Artz

  • VOR

    I can only hope that Americans pay very strict attention to who is behind the spending in the upcoming elections and then makes it clear to Corporate America they can’t buy the vote.

  • Marty

    The last nail in the coffin. Our political process will be corporations vs unions and the 84 % of us who represent neither will be picking up the tab.

  • Jon Simon

    And in case you were wondering, it was the Republican “justices” who just shot our Democracy in the kneecaps and handed the keys to the kingdom over to Big Oil. Corporations are not people, and treating them like people only hurts real people. Every real American should be furious.

  • Anon101

    Stick a fork in “us”, we’re done.

  • Anon101

    With all respect Matt, and most importantly – for the benefit of new citizens of this country and/or Fremont, this has EVERYTHING to do with Fremont residents and every other municipality or jurisdiction of this County!

    Come to think of it – it probably relates to the influence of the owners of the A’s over local politicians and the coming ELECTION!

    And no Marty, what Fred Diaz did on putting together a “PROPOSAL” on behalf of the A’s with OUR money without a PUBLIC PROCESS has nothing to do with the NORMAL responsibilities of a City Manager promoting economic development. Read the Brown Act!

  • Anon101

    Dissenting opinion (excerpt) by John Paul Stevens:

    “When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders “‘call the tune’” and a reduced “‘willingness of voters to take part in democratic governance . . .’”

    Regroup – act!

  • Anon101

    Simon Say’s: “Every real American should be furious.” Right on!

  • SMALLS

    SMALLS SAYS: Anon101 WHATS IS A REAL AMERICAN? AFTER READING POST #5 AMD #6

    You can not learn how to be an American by reading a book and quoteing others.

  • VOR

    #8 – Sarah Palin would be very disappointed with your statement.

  • Marty

    Anon101, Below are a few pertinent links regarding the brown act. I think you are so heated that you’re interpreting the text to fit your delusion on this matter. I am far from having a solid handle on the Brown act, but in appears that not only can Fred Diaz assemble a report for the city council’s consideration, he can discuss it individually with each member without you ever knowing about it.

    http://docs.google.com/viewer?a=v&q=cache%3AgixpQL9iauUJ%3Awww.sandiego.gov%2Fplanning%2Fcommunity%2Fpdf%2Fcow%2Fbrownact102908.pdf+what+constitutes+a+brown+act&hl=en&gl=us&sig=AHIEtbRInWb_LgmpS-WvqGFIs69kPozZRA&pli=1

    http://www.bbklaw.com/news-firm-112.html

  • Marty

    Jon, I don’t think the oil industry benefits much from this ruling. The price of oil is so connected to global demand and currencies that it is what it is, which is what it has always been and will always be as long as we’re burning CH2′s for energy.

    I’m more concerned about the financial industries, as they have had unfettered access and control over every politician from Bush to Obama WITH McCain-Fiengold, et al, which has already resulted in an unprecedented transfer of wealth.

    Add the opened floodgates for public employee union bosses, and were talking about a major ass reaming of the middle class.

  • Anon101

    Actually Smalls, I don’t think you “can learn how to be an American” without reading the Declaration of Independence and the Constitution – which would be primarily “guotes” of our founders – and the central agreement that binds us together.

    BTW: the former describes what should happen when the government stops being “by the people.”

    And OMG Marty; totally agree with your comment #10.

  • VOR

    Just read today’s Garfield strip (01.22.10) and immediately thought of comment no. 8.

    http://www.garfield.com/comics/todayscomic.html

  • Anon101

    With one caveat Marty to #10; the oil industry has already been benefiting from undue influence on the political process in this country for a long time.

    Most recent cases; Iraq & Afghanistan (ala Bushco or Obamaco).

  • VOR

    The Supreme Court Justices that voted for the overturn & the president that nominated them:

    Scalia – Reagan
    Roberts – G.W. Bush
    Alito – G. W. Bush
    Kennedy – Reagan
    Thomas – H.W. Bush

    What more needs to be said.

  • Justine Burt

    After linguist George Lakoff’s talk about the California Democracy Act at the American Leadership Forum on Wednesday, I was talking to someone about the importance of campaign finance reform and getting corporate money out of elections so we could move closer to democracy in this country. Now the Supreme Court decision has swung us away from democracy.

  • VOR

    The ruling gives a whole new and twisted meaning to the phrase “land of the free.”

  • Jon Simon

    Marty,
    Well, I worry about all the special interests, and yes, that includes oil, finance, tech, environment, labor, religious, and education. Long term, oil scares me the most because of their track record. Allowing organizations to contribute gives too much power to too few, distorting and destroying our Democracy.

  • VOR

    Many U.S. corporations are now owned by foreign interests. This ruling gives them tremendous leverage on our country’s political process. A figure was quoted on a national network today stating U.S. corporations collectively are worth about $27 trillion. Barack Obama raised $800 million in the last presidential election. You think there are bunch of fat cats in Washington now. Just wait.

  • Jon

    “I hope 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.” –Thomas Jefferson to George Logan, 1816.

    http://etext.virginia.edu/jefferson/quotations/jeff5.htm

  • Jenny

    This reminds me of the fact that Fremont’s mayor and city council members take money from the Patterson family and then vote on whether to waive zoning requirements so that can build a huge development. This is just one example of how the Fremont government is bought and paid for by developers and related interests. Here is a web site that shows where our city council members get their funding:

    http://www.protectcoyotehills.org/facts_money.html

  • Marty

    That’s very good point, VOR. Consider that much of the $80 billion funneled to AIG was to cover insurance on toxic investments made by overseas banks. In fact, the architect of AIG’s credit default instruments, Joe Cassano was located in London. Imagine if a similar situation ever presents itself. How much money do you think foreign investment firms would be willing pay American politicos in order for effect policies that would allow them to recover billions?

    $800 million is a deal when $20 billion is on the line. And as VOR points out, $800 million is the going rate for an American president.

  • Anon101

    NOT COOL!

    Matt; somewhere along the way Marty’s #10 comment got changed. And with that change it makes my comment #12 look like I agree with Marty’s revised#10 about the Brown Act which the original post did not speak to – it spoke to the topic of the post above.

    That’s really not cool Matt.

    Are you really Marty also? Or are you somehow connected to Marty? How did this happen.

    And Marty, I stlll think there has been a violation of the Brown Act over the A’s. The difference between the Wolfe vs. the Fremont Police Department Case is that in this case there was an action that resulted in the expenditure of almost 100K to consultant and countless staff hours spent on a PROPOSAL. Why do you think that they went out of there way to not call it PROPOSAL?

    And how much did the public spend to defend Mr. Diaz’s actions in that case that made law on a technicality?

  • Anon101

    Actually, appears that Marty’s original #10 got pushed to #11 when his earlier post finally arrived as number 10. So, Marty’s #11 is what my post #12 responds to.

    Boy, you’ve got to stay on your toes around here – and I probably do need more rest!

  • VOR

    Ahh, the return of the good old days of “advocacy calls” (aka push polling made famous by Dubya in his first presidential run) and the Swift Boat Boys. Hey, all that money changing hands will be good for the economy right? $800M will be chump change the next time around.

  • Andy

    100k for a city of fremont’s size is peanuts. Stop making issues over trivial stuff. Do you know how much money city would have made if it had turned empty lands into orchards. I mean its still not too late. By most indications its going to remain that way for a decade atleast.

  • Anon101

    Andy, you just don’t get it. Enough said – “the truth will out”!

  • Fremont_Bill

    What a eye opener, Post #21, Jenny.
    The Mayor, City Council Members the majority of there campaign contributers are developers, our local political leaders are bought and paid for?
    http://www.protectcoyotehills.org/facts_money.html

  • Andy

    Someone reading these posts might think *Developers* are the next worse thing after terrorists. I just dont get it? Whats so bad about *for profit* developers? The country is what it is today because of development.

    I dont see *anything* wrong in people earning money legally. If you think earning more than 200k is illegal, then make a law for that. If you think developers should not give money to city administrators then make a law for that. People with money always influence things. No one is going to care jackshit about if I wrote a letter to US govt saing China is blocking my freedom. But if google does it, all hell breaks loose. Thats how things always work.

  • Marty

    Ha Ha, Anon101, I had a good laugh when you wrote that you agreed with comment #10. It was ‘in moderation’ at that point.

  • Anon101

    Glad you enjoyed the laugh Marty – have to admit that this ones on me!

  • bbox231

    Post 29 and Andy ignore the *point* of Jen’s original message as well as the follow-on comments. The comments Andy makes serve only to exacerbate discourse in what could be an otherwise reasonable discussion.

    Why is it necessary to do so?

    Who in this venue or what kind of troubled psychology finds benefit from the incessant use of divisive hyperbole ?

  • Anon101

    Regarding bbklaw:

    “The court noted that serial meetings between a city official and individual councilmembers can lead to Brown Act violations, but only if (1) the city official acts as a “personal intermediary” for council members during the course of such meetings and (2) the meetings are used by a majority of the legislative body to develop a “collective concurrence” regarding a matter of interest.”

    When Fred Diaz met with the Council member IN PRIVATE about putting together an A’s PROPOSAL (i.e., a publicly paid for proposal for a private developer) definitely #(2) happened, and probably #(1). And therefore, according to your comment link Marty, you’ve confirmed for yourself that there was a violation of the Brown Act under California Law. Thanks for the research Marty!

  • Marty

    Anon101, I didn’t even stay at a Holiday Inn last night, so I cant say either way. But you sound confident enough about this.

  • Anon101

    (-:

  • http://www.bacon2010.com Vinnie Bacon

    I added a blog post to my website about how this issue is alive and well at the local level too.

    http://www.bacon2010.com/blog/?p=31

  • Irvington

    You see, Andy, there really isn’t anything wrong with developers per se. They’re just doing what developers do – develop. Wherever and whenever they can, as much as they can, to make as much money as they can.

    As the old saying goes, “the problem lies not in our stars, but in ourselves” – in this case “ourselves” being the local functionaries that we ourselves vote into office.

    When we go on year after year electing only Chamber of Commerce lackies, those who make their living off real estate, retired public servants, and the hangers-on of various old-boy (and old-gal) networks, what do you expect? They’re doing what they do, which is exactly as they are told by their primary campaign donors, the City Manager, the City Attorney, and various City department heads who do not even live in Fremont. When’s the last time you saw an independent thought come out of a Council meeting?

    If we’re ever going to have a hope of making anything out of this city, of controlling and guiding (not stopping) our development so that it benefits the city rather than damaging it, we need to actually do some individual, personal study about who it is that we’ll be voting for this coming November.

    What has our current Council and City administration done for us lately? Hooters? A waterpark? A new Police headquarters that’s already seismically unsound? Lots of high-density housing? Lousy park and street maintenance? No response to burglar alarms? Is that all that we deserve?

    Yes, there is nothing wrong with developers giving money to candidates. That is completely legal, within certain limits. But voters need to be aware of those contributions and take them into consideration when if and when we cast our vote for a candidate who is indebted to developers for those contributions. You can’t hang with ‘em and then try to tell us that you won’t do for them.

  • fremont Lifer

    Regarding Anon’s comment #23, I’d be very interested to know how it is that one can go back and make changes to a posted comment. There have been times when I wanted to do just that but I wasn’t aware that it was possible. Matt, please enlighten us as to how we go about requesting something like this?

  • http://community.fremontcitizensnetwork.org/ Bryan Hsueh

    Hi, Irvington, these are very good comments. I hope you don’t mind I quote your comments in Fremont Citizens Network (FCN) discussion forum:

    http://community.fremontcitizensnetwork.org/forum/topics/developers-money-and-city

  • Marty

    Bryan, usually you ask then quote rather than quote then ask, but considering the unscrupulous BS emanating from the FCN, I’m not surprised that you went with the latter.

  • http://community.fremontcitizensnetwork.org/ Bryan H

    Marty, the comments in this blog are public information. Many posts quote the comments from this blog. If Irvington does have concern, I can remove his quote from my post.

    Fremont city policy is currently heavily influenced by developers. Who will speak for the Fremont residents? Through open discussion forum, FCN is an platform for Fremont citizens to share ideas and information. The goal is to have more local residents (not out-of-town developers) involve in city policy. Together, we can make Fremont better.

  • Nononsense

    Agreed, the info from this blog is public. If quote without asking is unscrupulous xx, Mr. Marty, what are you then who pollutes this blog with your xx words ?
    And Matt allows this to happen.

  • Marty

    Bryan, I’m sure Irv is thrilled that you wanted to quote his remarks.

  • Irvington

    If I had a problem with people reading it, I wouldn’t have posted it here. You’re welcome to it, Bryan – perhaps you should also use a quote from our little friend before he has a hissy fit.

  • bbox231

    Post 40 and 43 – WHAT is this ????????

    Is this continued diatribe simple gratification of a damaged ego?

    Perhaps the banter of “yellow” journalism at its finest, seeking more numerous “page views” generated.

    Here’s a new one – - – perhaps the fear of an emerging and otherwise legitimate conversationsal venue ?

    I must learn to disengage and ignore – quickly – when the conversation becomes personalized or irrational.