Tuesday, September 15, 2009


Just last week the Supreme Court heard arguments on 'Hilary, The Movie' —or more accurately it reheard them, as the case had already come before the Court last Spring with one question and a fairly basic set of arguments —about whether the 90 minute film should be seen as —under McCain-Feingold, legally barred corporate "electioneering communication" —or constitutionally protected political speech. The film is in essence a diatribe and a familiar one, albeit a dated one. In it, in among a number of talking heads, Dick Morris opines that Hilary Clinton is "the closest thing we have in America to a European socialist." We all know he's gone on to reassess her place in the standings anyway. But be that as it may, the case as it first presented to the court was likely to be not a lot more than, well —a judgement call about the essential character of the subject material... not unlike the famous line about pornography —'electioneering' —the justices would (or should) know it when they saw it.

It's worth noting that the FEC had never ruled against the content of 'Hilary, The Movie' —in that regard they rightly have no jurisdiction—they ruled on the corporate enterprise that sought to buy into video on demand distrubution to the tune of $1.2 million —on the eve of an election. The FEC originally ruled that the film was no different from the kind of "electioneering communication" regulated under the McCain-Feingold campaign finance law —and a Federal Appeals Court agreed. It was the Supreme Court's call, in answering the final appeal of Citizens United, the film's producers, as to whether what quacked like an electioneering duck was in fact an electioneering duck. (—er, apologies to Mr. Morris)

But last Spring the court, especially its Conservative camp, pushed back against that narrower role (of its own jurisdiction) and asked that the case be reargued this Fall, with a much broader constitutional question at point: should the court even have that privilege of an opinion? Where is there constitutional license to bar and regulate political expression? —even corporate political expression?

Bans on corporate spending aren't exactly a newfangled thing and it's not like they haven't been challenged before. It was Teddy Roosevelt who first championed and finally signed law banning corporate spending on Federal elections in 1907 —after watching a flood of corporate funds put his predecessor, William McKinley in office. Needless to say that law has been vetted by a few corporate lawyers in the ensuing 100 years. McCain-Feingold might reach further and demand more, but it too has been upheld in previous decisions of the high court. Yet it seems that the same basic foundations that underpin both laws are matters at question in the court's current mind.

In the arguments of this past week we've been reminded, by the attorney advancing the appeal —and a couple of the judges hearing it, that corporations are citizens too. Justice Scalia held forth poetic on the many "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer" at one point —as if this had some meaning in the context of this case.

We wouldn't silence the local hairdresser now would we?

For all the talk of blind umpire justice we've heard over the past few months, it sure seems like there are some pretty obvious predispositions at work in the Roberts Court.

The hairdresser here is some cross between a Trojan Horse and a Judas Goat. There is nothing at issue in the case at hand or the long history behind it that abrogates a single shareholder's rights any further than the rights of a single citizen. It isn't even the aggrieved "documentarians" behind "Hilary, The Movie" that are at issue here anymore. Were that the case the court could have ruled in their favor at the earlier opportunity on the narrower question as first presented.

At the court's behest, the case has been expanded to become a contemplation on corporate liberty. Or to put it in more practically applied terms, the case has come down to one big loud question of cold hard corporate cash —plain and simple.

Justices Scalia, Kennedy, and Thomas are already on record wanting to overturn the case law on corporate campaign spending restraint. One can assume that these activist judges would like to see at least two more jurists join them. As this case first appeared there was some legitimate question as to the balance and fairness (if you'll excuse the expression) of the FEC's ruling on a very particular case. There were basic facts to be found about the particular appellants' rights in light of established law. But as things have transpired this is no longer a case about what can or should be said by whom and when in our politics.

It's about what can or can't be bought or sold.

No comments: