Yesterday, the Supreme Court struck down its own precedent in order to overturn campaign finance laws prohibiting corporations and unions from making “independent expenditures” relating to political campaigns within the weeks leading up to an election.  The opinion is certainly significant.  For those of us of a more libertarian mindset, it is a huge blow for free speech.  For those of a liberal mindset, it is a huge blow for corporate influence over our electoral process. 

Needless to say, I find the majority opinion written by Justice Kennedy persuasive.  Surprisingly to me, I found Justice Stevens’ dissent unusually weak and full of obvious holes, at least outside of his arguments for stare decisis.  There are a couple of key issues in the case that are particularly worth discussing and that will also, hopefully, alleviate the fears that somehow this decision will mean more corporate dominance of our political process. 

At the outset, let us be very clear – the existence of a free speech issue here is very clear.  The laws prohibited virtually any kind of advocacy for a candidate by a corporation or union in the days and weeks leading up to an election.  Corporations and unions are nothing if they are not associations of actual, real persons.  Moreover, included in the concept of a “corporation” for these purposes are non-profit corporations that expressly exist as political advocacy groups.  However, certain corporations are expressly excluded from the law, to wit: media corporations. 

The majority argues, correctly in my view, that the distinction between media corporations and other corporations is arbitrary, and that indeed, this distinction proves that corporations in general cannot have meaningfully diminished First Amendment rights.  Professor Volokh beautifully and succinctly explains this argument here.  So, either corporations have something approaching full First Amendment rights, or the government has the authority to severely restrict the First Amendment rights of media corporations.

This brings me to the first example of why Citizens United decreases, rather than increases, the relative influence of large corporations over our elections.  This time I’ll point to Professor Volokh’s brief follow-up post, and especially his point 2.  Specifically, the result of the decision is that the longstanding monopoly of media corporations on the ability to widely disseminate editorial opinions on elections is at an end.  Except for the fact that we may find ourselves annoyed by the even-higher presence of campaign ads on our TV come election season, this is an altogether good thing for democracy. 

The second, and to my mind more important, result of this decision will be to make it easier for smaller businesses and non-profits to have a voice in the system.   In his dissent, Justice Stevens goes to great lengths to explain how the ban on pre-election political ads by corporations isn’t really a ban because corporations and unions can just act via a Political Action Committee (PAC).  He acknowledges that acting through a PAC is a burden on corporate speech, but claims that it is a burden that can easily borne by a sophisticated modern corporation (whether for-profit or non-profit).  Ok, fair enough.  The trouble is that he assumes that all corporations are sufficiently sophisticated and large to be able to set up a PAC, with all of the attendant regulatory and reporting requirements that entails.  Not so.  Indeed, as the majority points out, there are millions of corporations in the United States, but less than 2000 corporate PACs.  It doesn’t take a rocket scientist to figure out the types of corporations represented by those PACs, nor does it take a genius to figure out the types of corporations that are not represented by those PACs. 

In short, the existing system’s response to free speech concerns (PACs) acts only to ensure that large corporations are already able to have near-unfettered participation in the electoral process, as long as they first overcome some regulatory hurdles that are relatively minor for them but are significant for smaller, less sophisticated enterprises.  Smaller corporations are effectively shut out of the system, thereby reinforcing the oligopoly of influence over elections and influence markets enjoyed by their larger, more sophisticated brethren.  This changes that.  Yes, it removes the bar on direct participation that large corporations had to skirt via PACs, but this was hardly an effective or meaningful bar for those corporations in the first place.  In return, smaller corporations (again, including smaller advocacy organizations) have an opportunity to participate in the process on at least some level, reducing the comparative voice of the larger participants (though perhaps only marginally).

My expectation is that although this decision will certainly increase the voice of “corporations” writ large in our elections, it will do so by causing an increase in the number of corporate voices (again, remembering that this includes non-profit advocacy corporations) involved in the process beyond the usual suspects, and thus decreasing the relative voice of any one corporation or group of corporations.

ADDENDUM: Cf., Matt Welch:

When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the “voices of everyday Americans” that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or “Wall Street banks, health insurance companies and the other powerful interests,” in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now).

ADDENDUM II: Ilya Somin goes into a good amount of depth to explain why the inequality argument for prohibiting corporate speech would simply exacerbate the relative effects of other existing, and arguably more severe, forms of inequality.  In a nutshell, eliminating corporate speech magnifies the speech of famous athletes.  Somin also addresses the argument that “corporations are not people” here.

I’ve been out of pocket from the political realm for a week and a half, but President Obama’s claim that a health insurance mandate is not a tax strikes me as marginally good politics and absolutely terrible lawyering.  I think Jason Kuznicki (also here) and by extension Will, are absolutely, 100% correct that an individual mandate is necessarily characterized as a tax, and a regressive one at that.  But that’s not the interesting thing to me here. 

Accepting for the moment that it is only debatable – rather than certain - whether an individual mandate is a tax, Obama’s attempts to characterize the mandate as something else are hardly a make-or-break argument for passage of health care reform.  Health care reform is not going to pass or fail to pass because people think the mandate should be characterized as a “tax” or merely as an attempt to get the uninsured to “take responsibility to get health insurance.”  The people affected, whether you characterize it as a tax or as something else, are going to be the same people; the people worried about being affected are going to be the same people; the costs that the mandate will impose on them will be the same.  People for the most part get this.  Sure, it may be mildly politically embarassing for Obama to sign a tax increase on a subset of the American middle class in contradiction of his campaign pledge, but if the resulting bill is as good as Obama wants voters to think, it’s tough to see him paying much of a price at the polls for it. 

But by claiming that the mandate is not a tax, Obama undermines the single strongest argument that the mandate is constitutional.  [Read more →]

Wow.  This morning Google announced that it has launched a new feature on Google Scholar that makes it possible for anyone, anywhere, to do a comprehensive search of every published court decision in the country.  This is huge news.  [Read more →]

The thing that bothers me most about this New York Times piece on the efficacy of sex offender alert programs is… that it focuses on the efficacy of sex offender alert programs, and doesn’t bother to raise any objections to the idea of a sex offender alert program.  Indeed, it’s pretty much taken for granted that everyone wants some sort of program or registry that catalogs and monitors sex offenders.  So, at the risk of sounding objectively pro-sex offender, I’m going to say that I’m a more than a little uncomfortable with the idea of a sex offender alert program, and sex offender registries more generally.

The practical objections are pretty straightforward and are worth repeating.  For starters, the definition of “sex offender” is impossibly broad and varies from state to state.  In Virginia, for instance, a sixteen year old who has a sexual relationship with his fourteen year old girlfriend would would “qualify” as a sex offender, due to Virginia law giving sex offender status to anyone having sexual relations with someone under the age of 15.  And if, for whatever reason, he was arrested, prosecuted and convicted for having sex with his girlfriend, he would have earned himself a permanent spot on Virginia’s sex offender registry.  Indeed, that’s a relatively benign example; in several states, crimes like public nudity or public urination warrant inclusion on a sex offender registry.  Unsurprisingly, this loose definition of sex offender has left us with a ridiculously high number of registered sex offenders.  By the Economist’s count (and I recommend that you read the whole article), there are 674,000 registered sex offenders in the U.S., and considering the huge range of crimes which warrant registration, there’s no question that a plurality – or even a majority – of those are unfairly listed as sex offenders. Which is made all the more problematic when you consider that sex offender registries often don’t provide enough information for the reader to make a judgment on whether or not the person in question is actually dangerous.

[Read more →]

First, since today is Good Friday, let me apoloize upfront for the disturbing nature of the case around which this post is built.  Unfortunately, it serves as a compelling follow-up to the enjoyable and (I hope) interesting discussion Will and I posted yesterday, and to the issue of judicial activism more generally. 

Over at Volokh, Prof. Kerr describes a case now pending before the Third Circuit and poses the question as to how much and whether simple human compassion should play a role in judicial decisionmaking.  Kerr summarizes the case thusly:

Pierre is from Haiti, and he was living lawfully in the U.S. as a permanent legal resident. Pierre is deeply troubled and has very violent tendencies, however. One night, he broke into the home of his ex-girlfriend and attempted to kill her. When a neighbor interrupted the attack, Pierre attempted to commit suicide by drinking a container of battery acid. His suicide attempt was unsuccessful, however: He lived, but his ingestion of the battery acid destroyed his ability to eat or drink normally. Pierre can survive only by receiving constant medical attetnion: He must be fed a liquid diet administered through a feeding tube.

  Pierre was convicted of attempted murder and served the mandatory 10 years of his 20-year sentence in a U.S. prison, where he received the medical care needed to keep him alive. After the mandatory 10 year sentence was up, the INS concluded that it was going to deport Pierre for having committed an aggravated felony.

  If Pierre is deported back to Haiti, he will be detained indefinitely in a Haitian prison. Haitian prisons are brutal. In particular, there are no medical facilities to feed Pierre and keep him alive. Haitian prisons just can’t provide Pierre with the medical care he needs. If Pierre is sent back to Haiti, he will almost certainly die of starvation in prison in a matter of days or at most weeks.

  Now let’s turn to the law. The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture, as enacted into federal law by Pub. L. No. 105-227. Under the Convention Against Torture, courts must intervene in the removal if the individual can show that he is more likely than not to be tortured if sent to the proposed country of removal. Pierre’s argument is that the failure of Haitian authorities to provide him with adequate medical attention will be tantamount to torture — he will slowly and painfully starve to death — and therefore the court must block his removal.

Kerr then quotes what he says is apparently the only regulation at issue in the case.  So far as I can tell, the only conceivable interpretation of the regulation is that the court may bar deportation only if it finds that Haitian officials will more likely than not have the specific intent of killing Pierre as punishment for his past crimes.  Unless there are substantially more facts to this than Kerr has described, such a finding is almost impossible because Pierre’s death will almost certainly be a simple result of the fact that Haiti lacks the resources to provide the care necessary to keep him alive, not because Haiti wants to execute him as punishment. 

Surely, under these facts, you could not say that the drafters of the Convention against Torture intended that the INS be permitted to deport Pierre.  Since they were human, it’s probably even safe to say that the people who drafted the deportation statute didn’t intend for someone in Pierre’s situation to get deported.  The problem is that the rules did not appear to contemplate such an instance, and thus failed to create an exception to it. 

Moreover, under these facts, it’s safe to say that the “popular” decision would be to permit Pierre to remain incarcerated in the US for another 10 years, at the very least.  Yet the almost-certainly correct decision in this case is to permit Pierre’s deportation, with the full knowledge that it will amount to a rapid death sentence after he has already become eligible for parole. 

Obviously, the “activist” decision here is to do the “popular” and “moral” thing and read into the statute an unprecedented meaning for the word “intentionally.”  The textually – and, I believe, legally – correct decision is to permit the deportation, even though it is a death sentence far more rapid than Pierre would have gotten had he committed capital murder in just about any state outside of Texas.  If the Court chooses the former approach, though, how many people could blame them?  I couldn’t – even though I firmly think that it should and will take the latter approach.

The thing is, these are the cases that you rarely hear about, but which judges have to deal with far more often than controversial social issues.  Presidents,governors, and legislators get to make policy in a bubble where they can pick and choose the facts they listen to, the people they encounter, and the voters to whom they pander.  They do not have to deal with the effects of the policies they set forth, at least not unless they want to.  Judges, however, have to deal with the effects of those policies every day, and have remarkably few tools to change those effects.  Yet it is they who are called “tyrants” who have an agenda to “usurp the will of the people.”