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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  January 27, 2010
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Topic category:  Government/Politics

Constitutional Fidelity Is Not Conservative Judicial Activism, Stuart Taylor

Taylor's right about "the liberal dissenters," but it is the First Amendment, not "the conservative majority" that "unleashed" corporations (and unions) to spend for election purposes and did not discriminate.

National Journal's Stuart Taylor's Jr.'s "Conservatives Forfeit High Ground On Activism" (January 22, 2010) is a concession (in the title) that conservatives had the high ground, but Taylor's conclusion that "the five more conservative justices -- and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they've said before -- forfeited whatever high ground they once held in the judicial activism debate" by "freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates" in Citizens United v. Federal Election Commission.

Taylor: "For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution's language and established meaning."

It's true that conservatives have made that accusation.

It's also true that the accusation was well deserved.

But the decision of which Taylor obviously disapproved was based on constitutional fidelity, not personal preference.

Taylor called the decision "hugely important," and rightly so.

Taylor said the decision would benefit unions, as well as corporations, and rightly so.

Whether this decision helps Democrats or Republicans, or liberals or conservatives, on balance, is not so clear, and the decision should not depend upon it.

Corporations (including ACORN) are protected by the constitutional prohibition of bills of attainder, and rightly so.

The First Amendment prohibition on Congress limiting freedom of speech and of the press does not include an exception for corporations and/or unions.

Taylor: "The majority's sweeping and unprecedented interpretation of corporations' First Amendment rights...,wiped out federal laws dating back 63 years and two major precedents."

So what? Segregation enjoyed the United States Supreme Court's blessing for 58 years and unconstitutional laws do not become magically become constitutional based on the passage of time.

Taylor: "...while the Court's green light for 'independent expenditures' of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support."

But constitutionality does not depend upon personal attitudes as to whether something is worrisome or worry-free.

Taylor: "Kennedy all too cavalierly bats aside a compelling argument for banning executives from spending shareholder funds on election."

The argument is uncompelling. Corporate officers act on behalf of shareholders and if their discretion on spending corporate funds on elections is to be restricted, it should be done by the shareholders, not Congress.

Tellingly, Taylor refuted his conservative judicial activism charge by conceding that the political impact of the decision is uncertain.

Taylor: "This is not to join in liberal alarums that the decision...will necessarily swamp federal elections under a deluge of corporate money. Nobody really knows how big a difference it will make. Corporate freedom to spend on elections does not seem to have had much impact in the 26 states that already allow it, perhaps because big businesses are wary of making enemies as well as friends. And union spending for Democrats will offset any Republican advantage in corporate spending."

Taylor added, smartly, that he did not "put stock in the four liberal dissenters' suggestions that they are any more committed to 'judicial restraint' or respect for precedent as a neutral principle than are their conservative colleagues."

Stare decisis is a mere judicial doctrine and, as such, is trumped by the Constitution.

In last Thursday’s 5-to-4 Citizens United v. Federal Election Commission ruling dismantling the McCain-Feingold campaign law, Roberts joined with fellow Bush appointee Justice Samuel Alito to issue a separate concurrence “to address the important principles of judicial restraint and stare decisis implicated in this case.” In a concurring opinion by Chief Justice Roberts and Justice Alito, the two Bush appointees noted that “departures from precedent are inappropriate in the absence of a ‘special justification’” and explained that “[a]t the same time, stare decisis is neither an ‘inexorable command’… nor ‘a mechanical formula of adherence to the latest decision’ … especially in constitutional cases" or otherwise "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.” Instead of sheepishly following precedent and refusing to "re-examine a prior erroneous holding," they asserted the need to "balance the importance of having constitutional questions decided against the importance of having them decided right.” “[S]tare decisis is not an end in itself,” they insisted, in addition to quoting Justice Stevens' 1995 dissent to the effect that returning to the “‘intrinsically sounder' doctrine established in prior cases” can “better serv[e] the values of stare decisis than would following” some “more recently decided case inconsistent with the decisions that came before it.”

As usual, Taylor took a centrist position and bashed both conservatives and liberals.

Taylor: "While the conservatives' view of free speech rights in this area seems too broad, the liberals' view -- especially by comparison with their capacious protection of, say, pornography and nude dancing as free speech -- seems too narrow."

Like the so-called constitutional right to abortion, constitutional protection for pornography and nude dancing was created by judicial activists, not the Constitution itself.

Amusingly, Taylor criticized the five-justice majority for NOT being political.

Taylor: "All nine justices passed up an opportunity to carve out a pragmatic, principled exception to Congress's overbroad 63-year-old ban on corporate spending on federal elections, an exception that could have amply protected Americans' free speech rights without allowing big business executives to use other people's money -- that of shareholders -- to buy politicians."

But the First Amendment is supposed to keep Congress from meddling with free expression.

Taylor's activist preference: "Specifically, the Court should have upheld the ban on election spending of shareholder funds by business corporations but allowed election spending by nonprofit ideological groups, such as the Sierra Club, the National Rifle Association, and the ACLU, whose members give them money precisely for the purpose of influencing governmental policies."

But the Constitution does not call upon the Court to make such policy decisions and such discrimination is not appealing. Fortunately, the decision put an end to the discrimination that allows media corporations to influence elections but not non-media corporations.

Taylor slammed the decision as unnecessary:

"Kennedy's majority opinion is utterly unconvincing in arguing that unleashing big business corporations to spend shareholder funds to support and oppose candidates is necessary to protect the rights of those shareholders and executives who wish to aggregate their money for such purposes.

"As the dissenters point out, all corporations are free to create political action committees that can spend on elections as much money as they can collect from officers, shareholders, and others who choose to donate for that purpose. Corporations are also free to spend stockholder funds without limit on 'issue ads' and on lobbying."

But the First Amendment contemplates that corporations, big or small, should not be "leashed" as to elections and it, not the majority, did the "unleashing."

Moreover, the Taylor view is predicated on the appropriateness of burdening corporations.

Taylor: "It's true, as Kennedy writes, that the administrative burdens involved in forming a PAC are considerable. But these burdens are not a serious problem for big, or even not-so-big, businesses. And while they are a problem for the vast majority of corporations owned by one or a few people, such people can easily spend as much as they choose on elections individually."

Taylor's position seems to be that discriminating against "big" corporations is fine and principals of small corporations should not be able to use their corporations to influence elections.

That's his personal preference, not constitutional mandate.

Taylor approved some of the majority opinion's reasoning.

Taylor: "Kennedy also stresses that the main arguments adopted by the now-overruled precedents for banning corporate spending of shareholder funds on elections -- that such spending involves 'corruption' or "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" -- are unconvincing or problematic.

"He's right about that."

Still, Taylor argued that the corporation officers should not be able to spend corporate monies on elections because some shareholders would disapprove.

Taylor:

"Kennedy all too cavalierly bats aside a far more compelling argument for banning corporate executives from spending shareholder funds on elections.

"The money does not belong to the executives who decide how to spend it; corporate law allows them to spend it only to serve their companies' parochial economic interests; and the vast majority of the individual shareholders to whom the money does belong have not chosen to spend it on elections and would in many cases disagree with the executives' candidate preferences."

But both corporations and union spend money in ways that not all shareholders or members approve! That is for the shareholders or members to deal with, not Congress.

Taylor: "Kennedy and Chief Justice Roberts in a concurrence belittle this so-called 'shareholder protection rationale' for banning corporate election spending.

They were right!

Alternately, Taylor argued:

"But even apart from protecting the interests of shareholders who might object to having their money spent to advance politicians they don't support, big-business spending on elections distorts the political process by injecting large sums of individuals' money in support of candidates whom they have not chosen to support -- regardless of whether those individuals are motivated to object or even care.

"Most people own stock through mutual funds and retirement plans and don't pay attention to election spending by individual companies of which they own tiny percentages. Why should a corporate executive or anyone else be allowed to pour other people's money into political campaigns as though the shareholders wanted that done?

"In this regard, the dissenters were quite right to suggest that in the majority's distended view of corporate First Amendment rights, "multinational corporations controlled by foreigners" -- who have no right to spend individually on elections -- could spend unlimited sums on federal elections. The majority backhandedly acknowledged that this might be troublesome and then moved on."

Again, Taylor is looking to Congress for a solution that the Constitution prohibits Congress from providing. No one is required to buy stock in any corporation or plan and corporations are distinct legal entities.

Taylor essentially acknowledged the unfairness of the ban that the United States Supreme Court struck down.

Taylor:

"Advocates of unleashing all corporations point out that the current ban sits somewhat awkwardly alongside the congressionally conferred (and, I think, constitutionally mandated) license enjoyed by huge media corporations -- including Disney's ABC -- to spend whatever they please on election advocacy.

"This is perhaps the majority's strongest point."

Taylor's right about that constitutional mandate and wrong that the majority decision is not constitutionally mandated too.

Taylor: "...[the majority decision] overlooks key distinctions: People who buy stock in media corporations are on notice that one of their primary goals is to spend money on federal elections, including editorials for and against candidates. In addition, the First Amendment protects the freedom 'of the press' as well as the freedom of speech, and thus suggests that the Framers expected the media to enjoy some protections that others might not enjoy."

It does not follow that the Framers expected media corporations to be "unleashed" and non-media corporations to be "leashed" and Taylor did not cite any evidence purportedly supporting his position that the Framers intended media corporations to be "unleashable" but non-media corporations to be "leashable." Making media corporations "more equal" than non-media corporations is a policy grounded in personal preference, not the Constitution or Madison's Notes. Further, no one has to buy stock in any corporation.

Taylor: "Apart from media corporations, the one significant group of corporations that aggregate the money of individuals who want their money spent on elections, but that are in many cases so small that forming PACs would be burdensome, are nonprofit ideological corporations.

Taylor wants to "leash" "bigness," not "smallness," but there's no constitutional mandate for that.

Taylor continued:

"...this points to the one serious First Amendment defect in the campaign finance rules that the justices have now struck down. In adopting the 2002 McCain-Feingold law, Congress added to its justifiable ban on 'electioneering' broadcast ads by business corporations an utterly unjustified amendment by the late Sen. Paul Wellstone, D-Minn., extending the ban to nonprofit ideological corporations formed by people who want to pool their funds to promote their political views.

"(The 1947 Taft-Hartley Act imposed a narrower ban on corporate 'express advocacy' for or against candidates.)

"Congressional supporters made clear that the purpose of the Wellstone amendment was not to fight corruption but rather to stifle 'negative attack ads' criticizing themselves and other incumbents (as well as challengers).

"The justices should have struck it down while leaving intact the ban on electioneering by business corporations. But not one of the nine proposed to do that.

"While the conservative majority thus gave undue First Amendment protection to business executives to electioneer with shareholder funds, the liberal dissenters would have sacrificed the First Amendment rights of individuals to aggregate their money and spend through nonprofit ideological corporations."

Taylor's right about "the liberal dissenters," but it is the First Amendment, not "the conservative majority" that "unleashed" corporations (and unions) to spend for election purposes and did not discriminate.

To his credit, Taylor duly noted some liberal hypocrisy:

"Moreover, the liberals' suggestions that Congress can and should curb the spending of great wealth amassed in the business marketplace on elections could be extended to justify curbs on wealthy individuals' spending.

"Such a step might be understandable in extreme cases. But it would be limitless in its potential for multiplying wealth-based restrictions on speech. It would also wipe out a cardinal principle of the campaign finance precedents for which the liberals affect such respect: that 'government may [not] restrict the speech of some elements of our society in order to enhance the relative voice of others.'

"The liberals argue that business spending on campaigns, including independent expenditures, creates the kind of appearance of indebtedness and of corrupt dealings that justify banning large (above $2,400) contributions from individuals and all corporate contributions.

"But independent election spending by business corporations is no more corrupting than the independent spending of vast sums by super-rich individuals such as George Soros, which the First Amendment properly protects."

True.

Taylor concluded:

"I wrote in a September 19 column that 'it would look a lot like judicial activism for the more conservative justices to ram through, for no good reason, a 5-4 decision smashing a cornerstone of campaign finance law; overruling precedents that date to 2003 and 1990; and brushing aside congressional concerns about corruption and its appearance -- all in a case that does not even involve a business corporation."

"Now they've done it."

No they didn't. They upheld the Constitution, as they had a duty to do, regardless of the political ramifications.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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