SAMUEL ALITO & THAT DAMN TYPO

In Baker v. Carr (1962) the Warren Court ruled that the principle of One Person One Vote had to be respected, and was perhaps the most fundamental element of American democracy. At the heart of the case were states that had failed to redraw districts. This left some districts with significantly less, or more, voters. According to the Warren Court, this undermined the principle of equal, or proportional, representation and violated the idea that each citizen's vote should carry equal weight during every election cycle.

The Warren Court's decision was so significant that Earl Warren would call Baker v. Carr (again, which dealt with redistricting and proportional representation) the most important decision his court ever made. As he put it, legislators represent people, not rocks or trees.

The same can not be said about corporations.

POLITICAL VOICE & PROPORTIONAL REPRESENTATION
I bring up Baker v. Carr because it gets to the heart of what Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) was saying yesterday when he criticized the Supreme Court's 5-4 decision on Citizens United v. Federal Elections Commission. The Citizens United decision allows corporations to enhance their political voice by bankrolling political campaigns. This undermines the spirit of the Baker decision because it super charges the influence of corporations and the corporate lobbyists who represent their very narrow interests.

More specifically, instead of having disproportional political weight lie in the hands of a few people who live in sparsely populated areas - as was the case before the 1962 Baker decision - the Citizens United decision shifts political weight to a few corporations who have the resources to drown out the voice of the middle class. This caters to the interests of a select, pampered, few and violates the principle of proportional representation and One Person One Vote.

This, in part, explains why Sen. Leahy criticized Citizens United as the "most partisan decision since Bush v. Gore." He sees a political system tilting toward a condition (1) where we don't always need to count the votes (Bush v. Gore, 2000) and (2) where one group will have disproportional power over elections (Citizens United, 2010).

(As a reminder, in Bush v. Gore the Supreme Court ruled in a 5-4 decision that because Florida's vote counting standards differed from ballot to ballot, precinct to precinct, and county to county that the Florida Supreme Court's recount order was "unconstitutional." Left unsaid is that vote counting standards differ from state to state. Still, the Supreme Court stopped the Florida recount. According to Justices Rehnquist, Scalia and Thomas the recount order, which provided instructions, was unconstitutional because only state legislatures - who have created different standards across the nation - can make election law. Recognizing the Gordian Knot they had tied themselves into the Supreme Court limited it's divided opinion only to the Bush v. Gore case.)

With this background it's easier to understand why Sen. Patrick Leahy criticized Justice Samuel Alito yesterday. Simply put, he sees an increasingly politicized Supreme Court. No doubt prodded by Justice Alito's "that's not true" moment during President Obama's State of the Union address, Leahy took aim at Justice Alito's new "activist" position.

Here's the money quote from Sen. Leahy:

"In his confirmation hearing, Justice Alito — I might say under oath — testified that the role of the Supreme Court is a limited role. ... It has to be equally vigilant of not overstepping the bounds and invading the authority of Congress. That was then, when he was seeking confirmation. This is now."

Leahy's essentially saying Justice Alito's a scoundrel, and not a man of his word.  But this is a throwaway ...

CORPORATE PERSONHOOD, OR JUST A TYPO?
Ranking judiciary committee member Sen. Jeff Sessions (R-Ala.) didn't take kindly to Sen. Leahy's words about Justice Alito, and shot back at both Leahy and President Obama (for scolding the Supreme Court), saying, "I'm disappointed that the president and my colleagues are attempting to politicize a very, very serious First Amendment question."

What he's really saying is that corporations have (or should have) all the rights and privileges as voters because, after all, they're people too. Is this true? Let's review:

1. CORPORATIONS AREN'T PEOPLE: Free speech is designed to protect the actions of naturalized and/or U.S. citizens. Corporations are neither.

2. THAT TYPO: Corporations are viewed as "persons" protected under the 14th amendment only because of the functional equivalent of a typo, not a Supreme Court decision. Put another way, corporate "personhood" status was an accident which means their claim to equal free speech status is not etched in stone.

3. THE FIRE PRINCIPLE: If we can't yell fire in a crowded theater, corporations should not be able to yell fire (or set a fire) during a political campaign. They need limits like we do.

4. CORPORATE PRIVILEGES: Unlike individuals, corporations regularly get favorable legislation (think bailouts), subsidies (think agriculture), generous tax write-offs (too many to list here), legal exemptions that boost their bottom line (especially Big Pharma), etc. They also have a limited liability standard, which you and I don't have (think exploding Pintos and how decision-making Ford executives escaped responsibility), and can live on indefinitely.

5. FOREIGN/SUBSIDIARY SHELL GAMES: Foreign corporations have subsidiaries through which they can access teams of Madison Avenue executives who can distort and elevate their "voice" above Joe Six-Pack's. 

6. LEGAL SHELL GAMES: Corporations can find legal cover behind proprietary rights (trade secrets) when called into court. This means they can both distort their voice, and then hide it. Apart from pleading the 5th, Joe Six Pack can't do this.

And the list goes on ...

CONCLUDING COMMENTS
fateful typo that granted them corporate "personhood" status.

This has enabled corporations to secure favorable legislation that increasingly allows them to act on their own (with less government oversight), ignore the public interest (think subsidized and protected health care industry), and to make more money with government-escorted profits (think Wall Street). Granting corporations the ability to use unlimited money in political campaigns, as the Citizens United v. Federal Elections Commission decision does, accelerates this process.

If we want to maintain Abe Lincoln's "Government of the people, by the people, for the people" maxim - and the power of One Person One Vote - Congress needs to fix Citizens United. More importantly, we need more of our elected representatives like President Obama and Senator Leahy to speak out against it.

American democracy, proportional representation, and the principle of One Person One Vote should not be drowned out by a judicial bench that not only believes corporations are people too, but has already said that we don't need to count all the votes.

- Mark