The American Spectator : The Democrats' "Corporate" Obsession

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The Democrats' "Corporate" Obsession

By Douglas Smith on 4.22.10 @ 6:08AM

Their latest salvo in the war over judges is another loser.

Fresh off their claims that the public actually favors the massive takeover of the health care system that they recently passed into law (when in reality polling shows strong opposition), Democrat leaders in the Senate apparently seek to turn the upcoming hearings on a replacement for Justice Stevens into a "referendum" on allegedly "controversial" decisions by the "conservative majority" on the Supreme Court. In the process, they seek to demonize respected jurists such as Chief Justice Roberts and Justices Alito, Scalia, and Thomas as "conservative activists" who side with "corporate" interests. This strategy is likely to fail.

By wide margins, the American public strongly supports the traditional approach to judging followed by these Justices. In a recent Rasmussen poll, for example, 60% responded that the Supreme Court should make decisions based on "what's written in the Constitution and legal precedents" as opposed to its "sense of fairness and justice." Occasionally, this means that the Court will side with "corporate" interests. However, it also means that it will frequently rule against them. In arguing for a results-oriented method of judging that places policy outcomes over impartial decision-making, Democrat leaders are repudiating this popular understanding of the judicial function.

For example, when President Obama criticized the Court during his recent State of the Union address for its decision in Citizens United v. Federal Election Commission striking down certain provisions of the McCain-Feingold campaign finance law, his remarks provoked a decidedly negative reaction in many quarters. Nonetheless, recent reports indicate that Democrat leaders will renew their attack on the Court for its decision in Citizens United, arguing that the Court's recognition that corporations have First Amendment rights sanctions a "corporate takeover of our elections." In pursuing this strategy, Democrat leaders are demonstrating, once again, that they are profoundly out of touch with the American people. The public expects judges to decide cases in an impartial manner -- not based on their sense of "fairness" or whether one side or the other will benefit from a particular outcome.

Nor does the public find the specific outcome in Citizens United particularly troubling. While polling on the issue is mixed, a Rasmussen poll on this issue found that 65% believed that corporations should be able to buy advertising that tells people how politicians voted on important national issues. Likewise, a Gallup poll found that 57% of Americans considered campaign donations to be a protected form of free speech and that 55% believed that corporate donations should be treated the same way under the law as donations from individuals are treated (only 39% disagreed).

More importantly, the charge that Republican-appointed Justices are biased in favor of corporate interests is fundamentally inaccurate. For example, Justices Scalia and Thomas have maintained in a series of decisions that the Constitution imposes no limits on the punitive damages that may be awarded in civil lawsuits against corporations. In contrast, Democrat-appointed Justices, such as Justice Breyer, have consistently argued that such damages are constrained by the Due Process Clause even where a jury finds that the facts fully warrant imposing additional punishment for corporate wrongdoing. The charge that Republican-appointed Justices always rule in favor of "corporate" interests, while Democrat-appointed Justices rule in favor of the "little guy," simply does not hold water.

The politicization of the judicial process in this manner is troubling. The legitimacy of the judicial branch hinges upon its impartiality. Once judges begin deciding cases based upon their own policy preferences rather than the rule of law, they exceed their constitutional authority.

Politicizing the judicial process is also bad politics. The American public simply does not share Democrat leaders' highly politicized vision of the judicial function. Rather, they agree with Chief Justice Roberts, who testified during his confirmation hearings that "judges are like umpires" who "don't make the rules," but rather call them like they see them.

About the Author

Douglas Smith is a Senior Lecturer in Residence at Loyola University Chicago School of Law and adjunct scholar at the American Enterprise Institute.

Letter to the Editor View all comments (25) | Leave a comment

Dave M. (now in S. Korea)| 4.22.10 @ 7:51AM

The Kelo case is proof positive that the leftist judges rule on the side of big business. Bring up that case and it should end any argument.

Ray| 4.22.10 @ 8:57AM

I never understood the left's obsession with eliminating corporations and "big business." Why would any reasonable American seek to eliminate the very entities that employ the vast majority of their fellow Americas? Do they really want to face the wrath of those 200 million or so Americans who will become unemployed if the left does succeed in their quest to destroy corporations and big business?

Seapuss| 4.22.10 @ 1:47PM

The Left’s knee-jerk reaction against corporations is easy to explain. It's called "radical egalitarianism".

Purpleguy| 4.22.10 @ 9:29PM

Let's think about that ... when 2 milk producers in the country provide over 90% of the milk in this country, it's not unreasonable to be concerned about the power of corporations. Just looking at media consolidation over the last 30 years, where one company either dominates or has a monopoly on the media in the top 50 metro areas, we definitely have something to think about. It's called Anti-trust, and the biggest, baddest trust buster was Teddy Roosevelt, a Republican that famously broke up Standard Oil Company. It's time to think about it again. By the way - does it really make sense that a corporation is considered a person? A corporation is a legal made up entity - how can the Supreme Court ever conceive that the Constitution allows that? Show me where the Constitution allows a corporation to be anything, let alone a person ...

GavInTucson| 4.23.10 @ 3:53AM

Purpleguy, your last sentence actually makes the case for your opposition. You're right, the Constitution doesn't cover what corporations "are." Therefore, the federal government has no jurisdiction in the matter and, therefore, has no right to declare whether or not a corporation can spend money making political commercials.

The Constitution doesn't declare what unions are, either, which is why it was perfectly legal for SEIU to donate $70M to Obama's campaign.

Purpleguy| 4.23.10 @ 9:37AM

Oh, I see, you're saying that speech is something that anything in the world can exercise? Isn't it interesting that human beings are the ONLY creatures on earth that, as far as we know, have perfected the action of "Speech" ? Do you not get how ridiculous it is for a non-living thing to have been give Free Speech Rights? Even a living organism would be ridiculous - you want a Tree to have Free Speech? Or how about your Cat? Do you really think the Founders expected that Free Speech Rights would EVER be applied to non-human beings?

Nick| 4.23.10 @ 12:32PM

Hey, PurpleJackass is against unions having free-speech rights!

What a moron!

Seapuss| 4.23.10 @ 7:49AM

The Free Speech Clause states, "Congress shall make no law ... abridging the freedom of speech...." What part of this language allows Congress to distinguish between natural persons and corporations, or to otherwise decide who can speak, when they can speak, and how much speech is enough? The concept of personhood is irrelevant to the Free Speech Clause.

The purpose of the First Amendment is not to grant any right or define who is entitled to exercise it, but rather to negate the power of the federal government to regulate. Simply put, the First Amendment does not focus at all on “who” is entitled to exercise “the freedom of speech”. Rather, the only concern of the First Amendment is to make sure the Federal Government doesn’t touch “the freedom of speech” with a ten-foot pole.

Dennis Bergendorf| 4.22.10 @ 9:07AM

I am no political expert, but I am a political observer, and it's my contention that there's some sort of tipping point, or critical mass, in play with most issues of the day, a critical mass the favors the Dems. This at critical mass seems to be in the 40-45% range, which is all the left needs to ram legislation through, whether it's campaign finance "reform," ObamaCare, affirmative action, or corporate bailouts.

The fact that up to 65% of the electorate in general supports Citizens United should be of no consolation to conservatives. We need a super-super majority (of the populace) to get our policies enacted.

The good news, though, is that Obama will be replacing a liberal with a liberal, so the Court's balance will remain the same. All the Dems will get is a short-lived platform for their anti-corporate rantings.

Ken (Old Texican)| 4.22.10 @ 9:09AM

Pray,
...earnestly for those four fine judges.... For their health, for their long lives, and for their courage and faithfulness.

George S| 4.22.10 @ 9:21AM

You're bringing a knife to a gunfight; the corporate sympathizing is a distraction meant to turn people's attention away from the fact that the nominee will undoubtedly be a proponent of statism instead of the Constitution. The Citizen's United ruling had gotten the Left into an uproar not because of "corporations" (for labor unions benefit just as much) but because restrictions are lifted from the Little People pooling their cash to take on issue ads for or against candidates. This is far more substantive and potentially damaging to incumbents than any corporation-- especially since a lot of those corporations make up for their transgressions by donating heavily to incumbent campaigns.

Corporations can be controlled, they have interests similar to foreign nations -- they'll support you as long as their interests are not harmed. But the people, once they are outraged, must be controlled by doing everything possible to blunt their motivation to vote. It can be voter fraud, under the table street money, attack ads or threatening corporations to cough up money. But the most important thing for the statist is to prevent the people from getting involved donating to campaigns, that's where the money is and government knows it. That's why McCain-Feingold was a big hit, and why Citizens United is feared.

The Obama nominee will undoubtedly pay lip service to freedom while expressing concerns about the influence corporate money can have in trumping the little guy in the political arena. And once we cheer that, we can kiss another SCOTUS seat goodbye for thirty years.

Purpleguy| 4.22.10 @ 5:20PM

You can kiss it goodbye already ... and probably 2 or 3 more to boot.

Nick| 4.22.10 @ 5:53PM

Pay no attention to PurpleJackass folks.

He doesn't even know that Virginia governors don't run for re-election because they can only serve one term, then have to wait 4 years to run again.

He also likes to berate others for spelling "hypocrisy" wrong, and in the same post he wrote "hypocrit", like a moron.

He is not worthy of debate with grown-ups.

Purpleguy| 4.23.10 @ 9:43AM

Guess you don't have much impact, huh, Chuckie?

Nick| 4.23.10 @ 12:29PM

These are not attempts to get people not to respond to you, PurpleJackass.

This is just a PSA (Public Service Announcement, for those of you in Rio Linda), to inform those not familiar with how ignorant you are, that you are not interested in honest debate.

They can make up their own minds.
That's a concept you bleeding heart liberals wouldn't understand.

ferengi | 4.22.10 @ 10:07AM

Look at this:
http://www.openmarket.org/2009.....kelo-case/

After homes were confiscated and destroyed - via the Kelo decision - the plant was closed and the lots where once stood 100 year old family homes is vacant.
Wonderful goverment and courts we have.

Gill O’Teen ✝✡| 4.22.10 @ 11:07AM

According to a Fox News Report (http://www.foxnews.com/politics/2010/04/20/obama-holds-talks-supreme-court-candidates/) beavisbud “is still whittling down his list of potential nominees for the U.S. Supreme Court, but he said Wednesday he wants to pick a candidate who will interpret the Constitution to take into account individual and women's rights.” Excuse me, how about someone who favors equal rights? No to social(istic) justice; yes to equal and blind justice!

Gill O’Teen ✝✡
gill.Oteen07041776@gmail.com
Now is the time for all to go Galt!
Only 8 days to fiscal Armageddon!

Len| 4.22.10 @ 11:15AM

One thing that I see over and over when discussing such issues as Citizens United v. FEC or the federal government in general is a backwards way at looking at these issues. The approach is normally along the lines of the federal government may do whatever it wants unless expressly prohibited. Thus we get people all in a stir about whether or not the 1st covers such a case.
Well here's the problem, the Bill of Rights was not instituted to list every prohibition of power concerning the federal government , but as an aid to prevent misconstruction or abuse of the powers granted. This means that regardless of what the 1st says, for something like BCRA or any legislation prohibiting "speech" to be legitimate there would have to be a power granted to do such a thing.
Plain and simple, the federal government has received no power to make any law in any way restricting speech or advocacy.

chris haynes| 4.22.10 @ 11:23AM

8 out of 9 judges have decreed the first amendment protects selling movies that depict torturing animals.

Want a laugh? Read the ruling.
Impressive, 50 cent words. Lots of precedents and referecnes to scholarly works. And all utter nonsense.

GavInTucson| 4.23.10 @ 4:11AM

I don't need to read the ruling. While there may be state and local laws prohibiting animal torture, find me once statute at the federal, state, or local level prohibiting the FILMING of such activities.

Case in point, murder is illegal at all levels of government. Yet, if a bystander caught a murder on camera, there is no law against publishing it for the public to see.

Understand?

Oldefarte| 4.22.10 @ 12:48PM

The Democrats' [as expressed by the USURPER-IN-CHARGE] anger over CITIZENS UNITED has to do with the campaign finance money of corporations that will resultingly flow to the Republican Party as a result. Business corporations are usually/basically CONSERVATIVE entities that are concerned with running PROFITABLE business operations. Without legal constraints, these businesses will begin to write checks to Republicans [who are mostly pro-business, as opposed to Democrats who are pro labor and pro lawyers], and Democrats/Obama see the monetary political contributions slipping away from their campaign coffers accordingly!!!!!!!!!!!!!!!!!!!!!!

Seapuss| 4.22.10 @ 1:01PM

One of the best defenses I've seen for the Citizens United ruling was made by former ACLU Executive Director, Ira Glasser, in this HuffPo article:

http://www.huffingtonpost.com/.....47342.html

He makes some dopey comments in support of public financing of elections at the end of the article, but his defense of the Citizens United ruling is largely spot-on.

Jeff Perren| 4.22.10 @ 4:10PM

"This strategy is likely to fail."

In what sense? Sotomayer sailed through. A 58% majority was opposed to the Orwellian-named Patient Protection and Affordability Act. It passed. The opposition to more rape of the financial services sector is laughably weak. Cap and Trade has passed the House and will undoubted by taken up - and passed in some form - by the Senate, unless it's stalled until after November.

The Progressives are cleaning the Right's clock and will continue to do so until more than Rep. Ryan, Rep. Bachmann and a handful of others discover some stones.

Culturally, every major social institution but talk radio is dominated by Progressives.

I still believe we can win, but let's not underestimate the enemy here.

Marc Jeric| 4.22.10 @ 6:59PM

There must be several millions of refugees from various communist hells that are now American citizens (I am one of them - had to wait 5 years to get the visa). I wonder where are they in this communist onslaught on America by Abu Hussein al Nairobi - how come one does not hear from them? Don't they recognize a communist government when they see it, like now? What about those 36 czars or komissars as I call those White House advisors? How about Obama's system of local soviets (ACORN, SEIU, teachers unions, government employee unions)? Don't we remember those block committees, and leaders or conductors in charge of our consciences? You remember - those charged by the Party to lead you by the hand? Those who organized and conducted "elections? Elections with only one set of candidates and the subsequent 99.9% results in favor of terror, poverty, political prisons?