Professor Jamie Raskin
12/4/14
Professor Jamie Raskin spoke on freedom of speech with particular focus on how the Citizens United case has altered that doctrine.
Prof. Raskin introduced his topic by stating that walls of political separation can support our principles as well as our interest. He pointed out that the beginning words of the U.S. Constitution are “We the People”, which reflected a dramatic shift from the age old political traditions of monarchy or theocracy showing an early separation. Prof. Raskin then showed excerpts from a letter by Thomas Jefferson to the Danbury Baptists, where Jefferson expressly argued for the separation between government and religion. Jefferson’s position was that there must be a prevention of merger between church and state as previous mergers had always occurred at the expense of the common good. In Jefferson’s view theocracies always resulted in oppression of those who deviated from the theology’s religious dictates and this should not be tolerated especially as this country is home to those holding many different beliefs. Jefferson went on to state that governments ruled by religion do so in opposition to science, reason and common sense. This accepted approach resulted in the wall between government and religion in this country, which has been supported and reinforced over many years.
According to Prof. Raskin another crucially important political wall is one between corporate wealth and democratic elections. Such a wall initially found expression in the 1907 Tillman Act, which enforced the concept that corporations should not be allowed to contribute funds to federal elections. It was felt such contributions would lead to corporations becoming successful without regard to inherent worth, but due to political influence.
Prof. Raskin argues that the Citizens United case is crumbling that wall of separation by taking the position that corporations are equal to people and that people are entitled to free speech. From there the court claims that money is just a form of speech because it supports a point of view. This is a change from the older legal view that corporations are associations of people that have taken on a particular legal form, but that corporate rights are derived from shareholders and are not embodied in the corporations themselves. In particular, the older legal view, held by some conservatives and liberals, was that corporations should play no role in political campaigns. These prior views were expressed as recently as 1978 by Justices White and Rehnquist. The newer divergent view bestowing corporations with their own rights was initiated by a memo written by Justice Powell, before he was elevated to the Supreme Court. It addressed a perceived need to balance out the advancement of civil rights. In that memo the later Justice suggested that balance could be achieved by allowing corporations to participate in politics. This suggestion then bore fruit in the Citizens United case.
Prof. Raskin points out that Citizens United has had some dramatic consequences as, among other things, it allows politicians to shake down corporate CEOs for contributions. The CEOs are frequently willing to provide as it sets their companies up for a quid-pro-quo response involving company favoring legislation. Additionally, such contributions are easily made as they are funded with shareholder money not the CEO’s own.
In Prof. Raskin’s view the adverse effects caused by Citizens United could be mollified by legislation requiring that corporations only donate to political campaigns when authorized to do so by shareholders and that such donations are publically and promptly disclosed.
Questions and Answers
Q. Why focus on corporate shareholder approval when unions also contributed to political parties?
A. Unions have even tighter rules than I am proposing. According to union regulations if a member disagrees with the contributions made he or she can demand and receive a rebate on their dues.
Q. Corporate positions are all over the map on any issue. They can’t agree on anything so how would approval work?
A. I prefer a universal approach of not allowing any political contributions by corporations. Presently, corporations have too much leverage. They can threaten a politician to take certain positions or let it be known that they will fund tremendous opposition to that politician.
Q. Considering the wall between government and religion, shouldn’t there be a ban on religious holidays being granted by public schools?
A. No. The reality is that the schools recognize that on certain days there won’t be any students in attendance so they make use of a fiction by not referring to these holidays by their religious names but calling them something else such as the winter holiday.
Q. Are you suggesting that the laws follow the IBM example of not making political contribution?
A. No. IBM and other companies have voluntarily decided not to make political contributions, which are admirable, but we shouldn’t have to rely on a voluntary approach.
Q. Doesn’t the secrecy, which is a common attribute of corporate political contributions, distort things?
A. It certainly does, especially when you consider that the basis for allowing them is free speech.
Q. The 5 to 4 Supreme Court decisions are now ubiquitous and very disruptive can’t we correct this somehow?
A. The court is divided because it reflects the political division in the country. We are in a difficult place, which, among other things, doesn’t reflect corporate reality.
Q. What is the difference between lobbying and bribery?
A. Bribery is illegal. But for many years lobbying wasn’t permitted as well. Making things worse is the threat that your lobbying position is now backed up by withholding political contributions or funding opposition.
Q. Does Citizens United case open the door to broader criminal prosecutions?
A. No. But it does open the door to granting corporations other rights. In the Hobby Lobby situation corporations were allowed religious rights.
Q. Does the present legal view allow foreign persons or governments the ability to influence our governmental actions?
A. Yes. Anybody can be a shareholder of a U.S. corporation that is publically traded. If foreigners, even foreign governments, have enough control of a U.S. corporation they could dictate how political contributions are made and which positions to support.