Citizens United: Antonin Scalia's Law
By Zephyr Teachout, Salon
he gift of a framed print was at the heart of a little-noticed case that foreshadowed the Supreme Court’s political theory in Citizens United. The case came to court after a trade association, Sun Diamond Growers, gave Secretary of Agriculture Mike Espy tickets to the 1993 U.S. Open Tennis Tournament worth $2,295, luggage worth $2,427 and $665 in meals, as well as the print and a crystal bowl worth $524.
The Supreme Court sided with Sun Diamond, against every court of appeals decision before 1999. It held that the government had to prove that the gift was given for a particular official act. Sun Diamond makes it nearly impossible to prove a violation of the gratuities act for any gift given before an official action. Sun Diamond effectively turned the bright-line gratuities statute into a more demanding bribery statute.
The opinion shows a lack of understanding of the corrosive power of gifts and subtle influence, and no appreciation for the need for clear rules, because of the difficulty of proving connections between gifts and acts. Instead the Court concluded that a clear rule would lead to “absurdities.” Justice Antonin Scalia,writing for the Court, found it incomprehensible that the statute could criminalize “a complimentary lunch for the Secretary of Agriculture” given by Sun Diamond, if he had matters before him that affected their work. He apparently never heard the adage, “There ain’t no such thing as a free lunch.”
Scalia outright rejected the argument that the statute criminalized the “buy[ing of] favor or generalized goodwill from an official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorably to the giver’s interests.” He rejected the claim that it criminalized presents “motivated, at least in part, by the recipient’s capacity to exercise governmental power or influence in the donor’s favor.” If you read the case as political theory, instead of statutory interpretation, the Court suggests that using money to influence power through gifts is both inevitable and not troubling. In so doing, it set the table for the Court’s major corruption decision in Citizens United.
Justice Scalia began the Sun Diamond opinion with this sentence: “Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law.” Eleven years later, Scalia and the other justices in Citizens United seemed to forget all knowledge of what in America is the closest we get to divine law— the laws of human nature and democratic politics.
Citizens United sparked a political revolution that would have left the Founders revolted
Nine years after Sun Diamond, a small, conservative nonprofit corporation named Citizens United wanted to air a ninety-minute movie about Hillary Clinton on DirecTV. It was right before the 2008 Democratic presidential primaries. Citizens United also wanted to air thirty-second advertisements for the movie on broadcast television. The transcript of one of the ads went like this, with different lines spoken by different people:
Who is Hillary Clinton?
She’s continually trying to redefine herself and figure out who she is . . .
At least with Bill Clinton he was just good-time Charlie. Hillary’s got an agenda . . .
Hillary is the closest thing we have in America to a European socialist . . .
If you thought you knew everything about Hillary Clinton . . . wait ’til you see the movie.
The Federal Election Commission moved to block the movie and the advertisements for violating the Bipartisan Campaign Reform Act (BCRA), a 2002 campaign-finance law that prohibited corporate-funded campaign commercials within thirty days of a presidential primary. Citizens United challenged the decision. According to its lawyers, it was a documentary, it was not offered over broadcast, and BCRA did not apply. According to the government, it was a ninety-minute ad designed to hurt Mrs. Clinton in the primaries, the distribution counted as broadcast, and BCRA did apply.
During the initial oral argument of the case in 2008, Justices Scalia, Kennedy, and Roberts asked questions that implied something far more expansive, and declaratory, than statutory interpretation. They wanted to hear arguments about whether the law banning corporate election spending could be justified at all. With the nature of the case changing, the Court requested that the parties write new briefs and reargue the case, explaining the constitutional legitimacy of independent corporate spending limits. However, there was no chance to research the underlying factual issues. No record was created to address these new foundational constitutional questions.
June 17, 1986, President Ronald Reagan speaks at a news briefing at the White House in Washington, where he announced the nomination of Antonin Scalia, left, to the Supreme Court as a result of Chief Justice Warren E. Burger's resignation. William Rehnquist is at right. (AP Photo/Ron Edmonds)
Scalia's Crimes against Humanity
By Christopher R Rice
Scalia deeply influenced a generation of conservative legal thinkers and was a lightning rod for criticism from the left almost from the moment President Ronald Reagan put him on the court in 1986.
In 2007, Scalia sided with Chief Justice John Roberts in a decision that gave corporations and labor unions wide latitude to air political ads close to elections. Yet Scalia was upset that the new chief justice's opinion did not explicitly overturn an earlier decision. "This faux judicial restraint is judicial obfuscation," Scalia said.
Dissenting from an opinion forbidding states from executing killers who were 16 or 17 when they committed their crimes, Scalia wrote, "The Court thus proclaims itself sole arbiter of our Nation's moral standards -- and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures."
Scalia also voted consistently to let states outlaw abortions, to allow a closer relationship between government and religion, to permit executions and to limit lawsuits.
Scalia was in the court's majority in the 2000 Bush v. Gore decision, which effectively decided the presidential election for Republican George W. Bush. "Get over it," Scalia would famously say at speaking engagements in the ensuing years whenever the topic arose.
Bush later named one of Scalia's sons, Eugene, to an administration job, but the Senate refused to confirm him. Eugene Scalia served as the Labor Department solicitor temporarily in a recess appointment.
Two years later, The Boston Herald reported that Scalia employed an obscene hand gesture while leaving a church in response to another question about his impartiality. Scalia penned a scathing letter to the newspaper, taking issue with the characterization. He explained that the gesture --the extended fingers of one hand moving slowly back and forth under the raised chin -- was dismissive, not obscene.
"From watching too many episodes of 'The Sopranos,' your staff seems to have acquired the belief that any Sicilian gesture is obscene," he said.
"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia wrote in dissent in 2013 when the court struck down part of a federal anti-gay marriage law. Less than a year later, federal judges in Kentucky, Ohio, Oklahoma, Utah and Virginia cited Scalia's dissent in their opinions striking down all or parts of state bans on same-sex marriage.
The case came back to the Supreme Court in 2009. Ted Olson, the lawyer for Citizens United, argued that there was no justification for the law because there is “no quid pro quo there [when corporations spend money in campaigns], and if there is it would be punishable as a crime.” In essence, his claim was that Congress’s power to protect elections from corruption was limited to the power to punish and deter explicit bribes. Anything else is not corruption.
In January 2010 Justice Anthony Kennedy, writing for a majority of the Court, adopted Olson’s argument and struck down all limits on corporate expenditures. The decision was within the Buckley framework and assumed that political spending is protected speech, and that nothing except corruption or the appearance of corruption could justify restrictions on that speech.
Citizens United is a complicated opinion, with many moving parts. But to my mind, the radicalism of the opinion, even beyond the flawed framework of Buckley, rests on two connected determinations. First, the Court found that the First Amendment protects political speech regardless of the identity of the speaker. Second, the Court found that no sufficiently important countervailing governmental or constitutional goal was served by limiting corporate political advertising. It conclusively held that corruption was the only possible government interest that might permit First Amendment restrictions and that anticorruption interests were not served by the law. Political equality concerns are not constitutionally legitimate reasons to pass such a law.
The opinion comprehensively redefined corruption, and in so doing, redefined the rules governing political life in the United States. As a matter of federal constitutional law, corruption now means only “quid pro quo corruption.” And quid pro quo exists only when there are “direct examples of votes being exchanged for . . . expenditures.” Corruption does not include undue influence and cannot flow from donors trying to influence policy through campaign contributions, unless these donors are utterly crass. “Ingratiation and access” are not corruption. Corruption does not include “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” And perhaps as surprisingly, Kennedy held that as a matter of law— regardless of the facts that are presented—“independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
But Citizens United did not merely exclude alternate definitions of corruption. It actually took that which had been named corrupt for over two hundred years and renamed it legitimate and the essence of responsiveness. Using ideas that were originally espoused in a dissenting opinion in McConnell, Kennedy equated “favoritism and influence” with “democratic responsiveness.” The jump from unavoidable influence to the legitimacy of influence, by equating it with positive values of responsiveness, happens in five short sentences. Even more than the adoption of quid pro quo, this passage represents a fundamental assault on traditional ideas of corruption:
The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.
The framers might agree with almost every sentence in this passage, but not with the logical leaps it contains. Madison would agree that access is not equated with corruption, but he would disagree that access does not lead to corruption. He would agree that favoritism is unavoidable— and donor favoritism is unavoidable— but he would disagree that we should therefore stop trying to limit it. He would agree that the donors will likely want to produce responses, but he would disagree that we should call that desire legitimate. And he would agree that democracy is premised on responsiveness, but he would disagree that responsiveness to the wealthy is the same as responsiveness to constituents. In this string of thoughts, connected by a weak logic, Kennedy gives up on the project of separating moral and dangerous forms of responsiveness. In Kennedy’s vision, all that is left of corruption is a particular kind of quasi-contract.
Justice Stevens, citing from the majority opinion in McConnell, called the majority definition of corruption “crabbed.” But it was not just narrow; it represents an inversion of traditional American political language. Kennedy did not merely reject certain arguments, but rather laid out an affirmative vision of political life. The affirmative positive vision is Benjamin Franklin’s dystopia. Citizens, in Kennedy’s view, are supposed to use money to achieve personal benefits in the public sphere.
Between quid pro quo corruption and democratic responsiveness, Kennedy identified a third sphere of political activity, one that is troubling but not sufficiently troubling that Congress could do anything about it. There is “cause for concern,” he wrote, when “elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle.” However, he did not equate those with corruption, nor did he suggest how Congress could address these ills except through laws banning quid pro quo exchanges. If Jefferson were around to read the opinion, he would doubtless complain of its Yazooism. Like Justice Marshall, Justice Kennedy identifies a fundamental democratic threat for which he says nothing can be done.
Kennedy’s opinion paints an apolitical vision of democracy, far removed from the founding vision. We are a nation of consumers of information, which corporations supply. Without corporate speech, “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” The government has prevented corporations’ “voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.” Corporations must not be prevented “from presenting both facts and opinions to the public.” According to Kennedy (again quoting his dissent in McConnell) the extensive “censorship” of campaign restrictions has “muffle[d] the voices that best represent the most significant segments of the economy.”
In this worldview, associational life happens through the corporate form. Corporations are “association[s] of individuals in a business corporation”; corporations are “disfavored associations of citizens.” The political life of citizens in his vision exists through and because of corporations. He counted 5.8 million for-profit corporations in 2006, worrying that all of their speech could be banned. PACs, the method through which corporations could raise and spend political money under Congress’s regime, were too demanding to satisfy the corporate associational need to speak. The reporting and administration of PACs led to “onerous restrictions,” such that “a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.” Corporate electoral speech is endowed with positive traits: “On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.”
Ironically, citizens qua citizens, instead of citizens qua Citizens United, are hard to find in Citizens United. There are “associations of citizens” (corporations) and “citizens and shareholders,” a phrase equating citizens with investors. Citizens as civic participants are passive. They are twice mentioned (once in a quote from previous cases) to support Kennedy’s argument that “speech is an essential mechanism of democracy,” a paragraph that transforms the First Amendment from a personal right lodged in an individual speaker to a disembodied right that is located in speech itself, instead of the speaker. The law “prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The clear goal of the sentence is to equate individuals (citizens) with corporations (associations of citizens). And at the end of the opinion, the Court uses this quote, “Citizens must be free to use new forms, and new forums, for the expression of ideas,” as an explanation for why corporations must have unlimited rights to spend money.
Citizen was a hotly debated word in early America. Historian John Murrin points out that the idea of ruler and ruled was so deeply entrenched in the thinking of political elites that after the Constitutional Convention it was hard to shake. Some Americans still used the word subjects instead of citizens for decades. George Washington was affronted when he was criticized between elections because he thought of elections as mechanisms for creating rulers who governed subjects, as opposed to periodic affairs in which representatives rose to positions of power but stayed in constant, dialectical relationship with the sovereign public.
The word citizen suggests, in its very invocation, a public role for the person. It implies that a person can take responsibility for a larger political community. In the theory that animated the founding era, the citizen is the essential unit of a political society. In classic liberal theory that dominated the late nineteenth and early twentieth centuries, the citizen was also central in political life. The obligations of public-dealing at least in public affairs remained. As the lobbying cases show, various obligations attended entering the public sphere. Throughout our history, a citizen may not, ethically, use government to better her own position if she knows it harms others. She might support laws that help her, but only if she also believes they will help the public as a whole.
In Citizens United, that kind of citizen is gone. If Kennedy took a traditional understanding of corruption, he might be concerned for the corruption of the citizens who were using the corporate form to influence politics, and the way in which unlimited corporate speech might exacerbate lobbying culture. Instead, the citizen becomes a consumer of information, the corporation becomes an “association of individuals,” and corruption becomes democratic responsiveness. It is a remarkable conceptual triple Lutz.
To be fair, there are serious and difficult issues that Citizens United raised, particularly in an Internet era where it is difficult to distinguish between corporations that own “the press” and corporations that make independent expenditures. I do not agree with Justice Kennedy’s resolution of those issues, but his misreading was at least partly provoked by living in a time where the fundamental distinction between the corporation and the press, for instance, is being erased. However, the replacement of corruption with a quid pro quo formulation is simply untenable as a matter of legal history. Citizens United was a revolution in political theory, disguised as a definitional disagreement.
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Former Victim Claims Scalia Was A Pedophile
By Makia Freeman
Worst person in the world found dead in Texas "rent boy ranch," playground for Mike Jagger and Charlie Sheen.
Gordon Duff of Veterans Today wrote the article Scalia Sleeps with the Fishes exposing the fact that Scalia was a pedophile and that he was killed at a rent boy ranch in Texas where the rich and famous go to indulge in pedophilia. Apparently the article was originally banned from viewing in the US, but is still active at that hyperlink at the time of writing.
“Scalia liked to fuck little boys. I know this from personal experience – as he was one of my primary abusers as a child and was one of the HEADS of the cult that abused me. He was a vile man who was such an extreme sadist that I find it hard to give words to his voracious appetites. I hated this man in ways that I can’t begin to explain and he rivaled Aquino in my abuse as a child.”
Hopefully more people will step forward to verify these claims against Scalia. Apparently, Scalia rubbed shoulders with Dick Cheney at Cibolo Creek Ranch owned by John Poindexter. Cheney, you may recall, was named by SRA and mind control victim Cathy O’Brien as one of her abusers.
The worst thing to happen to the United States since the Federal Reserve Act of 1913 was the Citizens United decision of the Supreme Court, pushed through by corporate “hitman” Scalia. He put the mob in charge of Washington and lived on the fatted calf for his efforts. From Salon:
Antonin Scalia was one of the most profoundly dishonest men in the history of American public life. He made Richard Nixon seem almost quaint by comparison. But that’s not the impression being broadcast to the world today.
Scalia’s death has let forth an elite love fest of such remarkable intensity, you’d think he was war criminal Henry Kissinger.
Maybe if you weren’t an elite lawyer, or media commentator, but rather someone to had suffer as a result of his bigoted cruelty? Maybe then you’d see things a bit differently, if you were someone close to Leonel Herrera, or Anthony Davis. Who are those men, you say? Two men facing execution with credible claims of actual innocence, that’s who.
If the law does not protect the innocent, then it’s hard to conceive what the law is for. Yet, Scalia—so deeply devoted to the rule of law — repeatedly held that it did not.
In his 1993 concurrence in Herrera v. Collins he wrote:
There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
Sixteen years later, in the case of Anthony Davis, after seven key eyewitnesses recanted their testimony, some fingering a man who testified against Davis, Scalia wrote:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.
So you’re innocent? So what? That was Scalia’s “judicial philosophy” in a nutshell. He was the giant of the conservative legal world for three decades—its Ronald Reagan—and that’s precisely what he stood for. That’s what the conservative legal world stands for.
Who really owned Scalia is the Koch Brothers, who have feted him and his silent friend, Clarence Thomas. Other than his cavalier attitude about killing innocent people, something Scalia laughed about continually, finding executions of the innocent not just acceptable but actually amusing.
Scalia hated women, part of his upbringing in a dysfunctional family but he also hated people of color and, as he became more and more powerful and insulated, his raging hatred against America and all but the rich and powerful became impossible to miss.
Scalia dies, not from a knife in the back or a pillow over is face but by his own words and deeds, a monster.
You see, Scalia was a bit of a Scrooge. We know why he died, his heart was four sizes too small.
Scalia: An Utter Moral Failure
By Heather Digby Parton, Salon
He doesn't think executing an innocent man matters. How on earth can such a depraved human be on our Supreme Court?
While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. – Justice Antonin Scalia
One might wonder how he can stay on the court after the revelation last week that two convicted murderers he once described as lucky to be given the blessing of a lethal injection have turned out to be innocent. That’s right, this is about the case everyone’s been talking about — the two brothers, both mentally disabled, who were railroaded onto death row some 30 years ago with coerced confessions by a corrupt police department. As the New York Times reported:
The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.
The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.
They were 19 and 15 at the time of the murder and their conviction was based on nothing more than their coerced confessions, one of which was said to have ended with the defendant saying, “Can I go home now?” It was a famous case, used often by law and order Republican politicians in North Carolina as an electoral cudgel with which to beat Democratic rivals over the head. The state appeals process eventually reduced the sentence of one of the defendants to life in prison but until a state commission with power to subpoena evidence looked into it, the DNA from the scene was not tested and other evidence from the crime scene that implicated another convicted rapist was never processed. When they were, they exonerated these two men.
What exactly was it that Justice Scalia said about them? Well, he cited this particular case in the decision on Collins v. Collins back in 1994 in which he disagreed with Justice Harry Blackmun on the constitutionality of the death penalty. This was the famous case in which Justice Blackmun disavowed his former support for capital punishment and declared that he would no longer “tinker with the machinery of death.” Scalia wrote, with characteristic sarcasm:
Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”
Yes, how very enviable. Unless the defendants are innocent, in which case it is as horrifying as the brutal slaying of the victim, particularly after 30 years spent imprisoned in a small cell waiting for the day that he will know in advance he is to die. That alone is cruel and unusual punishment. Not that Justice Scalia sees it that way. (His comments suggest that the methods of punishment should be directly correlated to the luridness of the crime, an antediluvian concept rejected by the Enlightenment-influenced writers of the Constitution he alleges to take so literally.)
Death penalty supporters inevitably use cases like this to illustrate that “the system worked” and, by implication, always works. Except that’s sophistry and everyone knows it. The only reason it worked in this case was because the state of North Carolina empowered an outside commission to investigate. And what they found was malfeasance, a coverup and a corrupt indifference to justice. The legal system obscured the truth at every level and every step along the way. There is no way of knowing how often that happens but any sentient being realizes that it is impossible that this was the only time.
Worst of all, Justice Scalia and other death penalty proponents who find nothing immoral in the state’s conscious, coldblooded taking of a life are equally unconcerned that they might be taking the life of an innocent person. The horrifying injustice in such a mistake (or criminal corruption) is irrelevant. Apparently as long as the train of the legal system runs on time there’s no cause for him to lose any sleep. Indeed, Scalia has said so:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
This man claims that he could not be a judge if he thought his participation in the death penalty was immoral and yet he does not believe it matters under the Constitution if the state executes innocent people. How on earth can such a depraved person be on the Supreme Court of the United States? On what basis can our country lay claim to a superior system of justice and a civilized moral order when such people hold power?