FREE ELECTRONIC LIBRARY - Dissertations, online materials

Pages:   || 2 | 3 |


-- [ Page 1 ] --






Allen Shoenberger •

I come to bury Caesar, not to praise him;

The evil that men do lives after them, The good is oft interred with their bones, So let it be with Caesar 1 In this January’s decision of Citizens United v. Federal Election Commission, 2 the Supreme Court overturned more than 100 years of legislative precedent, 3 as well as its own precedent of twenty years, 4 to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office.5 The breadth of the holding is startling. Although the specific context

• Professor of Law, Loyola University of Chicago. © 2010.


2. 130 S.Ct. 876 (2010).

3. In 1907, Congress passed the Tillman Act, which was designed to prohibit corporate contributions to political campaigns. 34 Stat. 864, 59 Pub. Law 36 (1907); see also infra note 11.

4. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had held that a Michigan campaign finance act that prohibited corporations from using treasury money to advocate for or against political candidates did not violate the First and Fourteenth Amendments. Citizens United, 130 S.Ct. at 913.

5. 130 S.Ct. 876 (2010).

Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takes- a-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudence- citizens-united-v-federal-election-commission.pdf.

98 STRICT SCRUTINY considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hillary Clinton,6 the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

The sweep of the decision is simply mind-boggling! The only other Supreme Court decision of such broad electoral impact is Buckley v.

Valeo, 7 which sustained in large part Congress’s campaign finance reforms 8 designed to deal with the public perception of the electoral shenanigans that led to the Watergate scandal. 9 That was an era in which criminal break-ins occurred, not only into the Democratic National Committee headquarters, but also into Daniel Ellsberg’s psychiatrist’s office. 10 Ellsberg had leaked the Pentagon Papers, thereby becoming an enemy of the administration in Washington.11 The public was disgusted by such high level corruption, particularly that wrought by invisible campaign expenditures 12 and political slush funds. Congress

6. Id. at 887.

7. 424 U.S. 1 (1976).

8. Id. at 23-28

9. Ryan Watkins, The Political Implications of 527 Organizations Necessitate Reform, 50 SANTA CLARA L. REV. 547, 548 (2010) (citing Brandi Cherie Sablatura, Reformation of 527 Organizations: Closing the Soft Money Loophole Created by the Bipartisan Campaign Reform Act of 2002, 66 LA. L. REV. 809, 818 (2006)).

10. On Sept. 3, 1971, the burglary of Daniel Ellsberg’s Psychiatrist, Lewis Fielding’s office, authorized by top Presidential Advisor John Ehrlichman, was carried out by E. Howard Hunt, G.

Gordon Liddy and CIA agents Eugenio Martinez, Felipe de Diego, and Bernard Barker. These so called “Plumbers” failed to find Ellsberg’s file. Pat Shellenbarger, Silent Witness Wrote History, GRAND RAPIDS PRESS, Jan. 15, 2006, at A1.

11. Liz Halloran & Scott Michels, Curbing the Press: Why the Government Hasn’t Been This Antagonistic Since the Pentagon Papers Case, U.S. NEWS AND WORLD REPORT, June 12, 2006.

12. Eight justices in Citizens United did vote to permit the requirement that corporate advertisements must identify the sponsor, although Justice Thomas dissented on this precise point.

Justice Thomas has been recently quoted speaking at a law school in Florida. In a revisionist view of history that would have made Cold War Soviet historians proud, he describes the initial federal legislation prohibiting all corporate financing of federal elections as if it were a racist conspiracy.

Adam Liptak, A Justice Responds to Criticism From Obama, N.Y. TIMES, Feb. 4, 2010, at A17. In

fact President Teddy Roosevelt called for its adoption in his annual address to Congress in 1905:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takesa-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudencecitizens-united-v-federal-election-commission.pdf.

STRICT SCRUTINY 99 acted to remedy both the reality and appearance of corruption through campaign finance reform, hoping to restore confidence in America’s system of governance. 13 The methodology of the Citizens United decision is just as startling as its holding, rejecting an anticorruption rationale.14 Not only is the holding expansive, the majority opinion fails to even cite Ashwander v.

stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts. Not only should both the National and the several State Legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation save by the employment of counsel in public manner for distinctly legal services.

President Theodore Roosevelt, Annual Address to Congress (Dec. 5, 1905) (transcript available at http://millercenter.org/scripps/archive/speeches/detail/3777). In the preceding paragraph, Roosevelt repeated his call for a law regarding bribery of the electorate. To debase Roosevelt’s message of anti-corruption by the unfortunate fact that the initial federal statute carries the name of a racist senator distorts history and is, quite frankly, dishonest and unbecoming of a Justice of the United States.

The Tillman Act of January 26, 1907 provided:

An Act to prohibit corporations from making money contributions in connection with political elections. Be it enacted, That it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator. Every corporation which shall make any contribution in violation of the foregoing provisions shall be subject to a fine not exceeding five thousand dollars, and every officer or director of any corporation who shall consent to any contribution by the corporation in violation of the foregoing provisions shall upon conviction be punished by a fine of not exceeding one thousand and not less than two hundred and fifty dollars, or by imprisonment for a term of not more than one year, or both such fine and imprisonment in the discretion of the court.

34 Stat. 864, 59 Pub. Law 36 (1907) (emphasis added). It is noteworthy that no distinction is made in the statute between direct contributions to a campaign and independent expenditures.

13. See Watkins, supra note 9.

14. Citizens United, 130 S.Ct. at 908-09.

Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takesa-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudencecitizens-united-v-federal-election-commission.pdf.

100 STRICT SCRUTINY T.V.A., 15 a case which describes a “constitutional avoidance doctrine.” 16 Ashwander articulates a policy of avoidance of deciding constitutional questions, particularly broad constitutional questions, if the court can fairly decide the particular case before it on other grounds such as statutory construction, or narrower constitutional grounds. 17 It is worth remembering that the first major declaration of unconstitutionality subsequent to Marbury v. Madison 18 was Dred Scott v. Sanford, 19 which moved the struggle for the rights of slaves from verbal battles in Congress to actual battlefields like Manassas and Gettysburg. 20 Broad

15. Justice Brandeis’ landmark concurrence in Ashwander v. TVA, 297 U.S. 288, 346-48 (1936), stated seven principles for deciding cases in which statutes are challenged on grounds that

they might be unconstitutional. These principles are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding... 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it... 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied... 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of... 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by it... 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits... 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Id. (citations, internal quotations, and footnotes omitted).

16. Some scholars trace the doctrine back to Chief Justice John Marshall’s opinion in Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”). See William K. Kelley, Avoiding Constitutional Questions As a Three-Branch Problem, 86 CORNELL L.REV. 831, 837 & n. 23 (2001).

17. Ashwander, 297 U.S. at 346-48 (Brandeis, J., concurring).

18. 5 U.S. (1 Cranch) 137 (1803).

19. 60 U.S. (19 How.) 393 (1857).

20. See Louise Weinberg, Dred Scott and the Crisis of 1860, 82 CHI.-KENT L. REV. 97 (2007). “Dred Scott may not have been a sufficient cause of the War, or the only cause, but it was a cause, a major cause, and in the minds of Americans then it was at the very eye of the storm.” Id. at 139.

Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takesa-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudencecitizens-united-v-federal-election-commission.pdf.

STRICT SCRUTINY 101 constitutional decisions are the nuclear weapons of the judicial arsenal, and just as dangerous. The Roberts five appear oblivious.

Citizens United flatly ignores the teaching of constitutional modesty set forth in Ashwander. 21 The decision similarly ignores the caution of Justice Jackson in regard to the use of the Due Process clauses of the U.S. Constitution: “Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.” 22 A decision based on the First Amendment, as Citizens United is, similarly leaves conduct ungoverned and ungovernable by both Congress and the States. 23 Constitutional modesty “[p]rinciples rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 24 Instead of narrow construction, the Citizens United Court reached out and dealt with the case as if it presented an “unconstitutional on its face” attack—a ground withdrawn at the three judge district court level 25—in favor of a narrower “unconstitutional as applied” attack. 26 In my forty years of teaching constitutional law I cannot remember another Supreme Court decision that did anything similar to this. 27 In many, many decisions the court has converted “on the face” attacks into “as

21. See 297 U.S. at 346-48 (Brandeis, J., concurring).

22. Railway Express Agency Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring).

23. See id.

24. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973).

25. Citizens United stipulated at the District Court level to dismissing Count 5 of its complaint, which raised a facial challenge to the act. Citizens United, 130 S.Ct. at 892. As the dissenting opinion notes, this dismissal meant that a record was not developed in the district court on the actual effects of the statute. “The Court operates with a sledge hammer rather than a scapel when it strikes down one of Congress’ most significant efforts to regulate the way that corporations and unions play in electoral politics.” Id.at 933 (Stevens, J., dissenting).

26. Id. at 892.

27. Even Bush v. Gore did not quite reach as far, although the “tone” may not be all that dissimilar.

Pages:   || 2 | 3 |

Similar works:

«EDHEC-Risk Institute 393-400 promenade des Anglais 06202 Nice Cedex 3 Tel.: +33 (0)4 93 18 32 53 E-mail: research@edhec-risk.com Web: www.edhec-risk.com The Sophisticated and the Simple: The Profitability of Contrarian Strategies from a Portfolio Manager’s Perspective Daniel Giamouridis Research Associate, EDHEC-Risk Institute Assistant Professor of Finance, Athens University Chris Montagu Director and Head of Global Quantitative Research – Europe, Citi Investment Research Abstract...»

«Економічні науки УДК 330.16+658.310.7 ВАХЛАКОВА В. В. Донбаський державний технічний університет, м. Лисичанськ ФОРМУВАННЯ ЗАБЕЗПЕЧЕННЯ ЕКОНОМІЧНОЇ БЕЗПЕКИ ПІДПРИЄМСТВА Розглянуті підходи до розуміння економічної безпеки підприємства. Показано дуальний характер поняття...»

«Jokes Every Man Should Know Genre have you is the few company to add your equities. I would download to actions, take other, short good needs with strategies, and therefore more. A resources may not start called because the possible meetings on the Clicks Services nursing if robert Security, Chinese and Support government with Magic. Property instead about them have else download because the low area home and exactly save to work to pay perks. The success is these target because right point...»

«XVII W E H C –, in “Diversity in Development” A very brief history of Japan’s Economic and Social History Research Osamu Saito∗ Introduction Economic history has long occupied a comparatively large field within Japan’s social science areas. Today, there are three separate learned societies in this field: the Socio-Economic History Society, the largest and most broadly based, has 1,400 members, plus 900 in the Business History Society, and 1,000 in the Political Economy and Economic...»

«Municipality of Lom Municipal Centre for Cross-border Cooperation Project BG2004/016-785.01.01.01-19 Good neighbours – good Partners MARKETING STRATEGY OF MUNICIPALITY OF LOM Content: Context and approach during the Strategy preparation 1 How the strategy was prepared? 2 Documents, considered by the Strategy 3 Objectives of the strategy 4 Strategic requirements and expected results 5 Vision of the Municipality of Lom 6 Development potential of the Municipality of Lom 7 Companies of structural...»

«AU/S2/06/18/A AUDIT COMMITTEE AGENDA 18th Meeting, 2006 (Session 2) Tuesday 19 December 2006 The Committee will meet at 9.30 am in Committee Room 2 to consider the following agenda items: 1. Decisions on taking business in private: The Committee will consider whether to take agenda items 6 and 7 in private. 2. Overview of the financial performance of the NHS in Scotland: The Committee will receive a briefing from the Auditor General for Scotland on his report entitled “Overview of the...»

«THAMES WATER 2009 FINAL BUSINESS PLAN Part B8 – Revenue Projections Summary Report by REPORTER Summary of Audit Findings & Reporter Opinion We traced historic data to June Returns (where applicable) on a sample basis. Where the Company has relied on information from its source data systems but presented working papers using extracts from those source systems we challenged the Company to provide an audit trail to those source systems. At the draft stage the general approach adopted by the...»

«Harrogate and Rural District Clinical Commissioning Group (HaRD CCG) Finance, Performance and Commissioning Committee (FPCC) Minutes of Meeting Held On 22 December 2015 11.00 – 13.00 Boardroom, 1 Grimbald Crag Court St James Business Park, Knaresborough, HG5 8QB Present Amanda Bloor (AB) Chief Officer, HaRD CCG (Chair) Anthony Fitzgerald (AF) Director of Strategy & Planning, HaRD CCG Dilani Gamble (DG) Chief Finance Officer, HaRD CCG Alec Cowell (AC) Head of Finance and Contracting, HaRD CCG...»

«Legal, Actual and Desirable Independence: A Case Study of the Bank of Israel By Alex Cukierman Working Paper No.25-2004 December, 2004 The Foerder Institute for Economic Research and The Sackler Institute of Economic Studies Legal, Actual and Desirable Independence: A Case Study of the Bank of Israel∗ Alex Cukierman† October 28 2004 Abstract This paper documents the evolution of the legal independence of the Bank of Israel since its creation in 1954 to present times, provides an...»

«6, 307–346 (1997) JOURNAL OF FINANCIAL INTERMEDIATION JF970226 ARTICLE NO. Competition among Financial Intermediaries When Diversification Matters* Andrew Winton Finance Department, Northwestern University, Evanston, IL 60208–2001 Received December 2, 1996 Many models predict that the diversification and efficiency of financial intermediaries (‘‘banks’’) increases with their size, so that a relatively unrestricted banking sector will settle into an equilibrium with several...»

«Maidenhead Branch Maidenhead Branch Maidenhead Branch :žž :žž :žž Day and Evening Courses in Maidenhead and Cookham Dean 2016 – 2017 Afro-Caribbean Music Afro-Caribbean Music Archaeology / History Greek / Latin Archaeology / History Greek / Latin Architecture House of Habsburg Architecture House of Habsburg Art / Art History Latin America Art / Art History Latin America Darwin Literature Darwin Literature Design Posters Design Posters Economics Sculpture...»

«JKAU: Islamic Econ., Vol. 27 No. 1, pp: 3-39 (January 2014) DOI: 10.4197 / Islec. 27-1.1  Sharīʿah Investment Screening Criteria: A Critical Review Saeed bin Mahfooz and Habib Ahmed Saeed Binmahfouz is a businessman and at the same time is an independent researcher. He did his Ph.D. from Durham University, UK. His research focuses on Islamic banking and finance and Socially Responsible Investment (SRI). He has published in a number of International Journals and has edited several books. He...»

<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.