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Ask her: What about Citizens United? (AP photo)

Pin Kagan down, accept no platitudes

ASK THIS | May 25, 2010

The Judiciary Committee is duty-bound to ask whether Kagan regards corporations as people and if she feels they should be allowed unlimited spending in election campaigns. Tough questions, please, no ‘peculiar ritual dance’ for her.

By Morton Mintz

It is vital that the Senate Judiciary Committee, in keeping with Elena Kagan's advice regarding earlier Supreme Court nominees, pin her down on her views on corporations.
Writing in the University of Chicago law review, Kagan "castigated the confirmation hearings of Justices Souter, Kennedy, Ginsburg and Breyer as a 'vapid and hollow charade,'" The Nation recalled in an editorial. "Since Kagan wrote those words in 1995, three more Justices – Roberts, Alito and Sotomayor – have been nominated and confirmed, each in more or less the manner Kagan described: a 'peculiar ritual dance' in which senators politely ask questions that the nominees politely refuse to answer, a farce dominated by, in Kagan's words, the 'repetition of platitudes' and 'personal anecdotes.'"
A New York Times report underscores the need for tough questions about corporations. As Solicitor General of the United States, Adam Liptak wrote, Kagan "has sometimes taken positions seemingly in tension with her academic writing, including in Citizens United v. Federal Election Commission, the blockbuster 5-to-4 decision in January that allowed unlimited corporate spending in elections." He cited her 1996 article, "Private Speech, Public Purpose," also in The University of Chicago Law Review.
"Marvin Ammori, who teaches First Amendment law at the University of Nebraska, said Ms. Kagan might have voted with the majority in that case," Liptak reported. "'Looking at Elena Kagan's scholarship,' Professor Ammori wrote on the legal blog Balkinization, 'I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights.'" That's scary, but Liptak held out a ray of hope: "Senator Arlen Specter, Democrat of Pennsylvania, said Ms. Kagan discussed the case with him in a meeting....'She said there wasn't sufficient deference to Congress' in the majority opinion, Mr. Specter told reporters."
But Liptak went on to warn: "That comment may provide a glimpse of Ms. Kagan's thinking, but it is nothing like a complete answer to how she would have voted in Citizens United, one of the most divisive Supreme Court decisions in recent memory and the subject of repeated criticism from President Obama, including in comments in his State of the Union address in January and in announcing his nomination of Ms. Kagan.”
The Nation editorial asked a good question: "When Kagan argued the administration's case in Citizens United v. FEC, against granting corporations near limitless rights to political spending, was she expressing her views or those of the president?"
Senate Judiciary members need to – and should be judged harshly if they do not – press Kagan on whether she agrees or disagrees with President Obama's criticisms of Citizens United and also with the devastating dissent of Associate Justice John Paul Stevens.
"Essentially," Stevens wrote, "five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law." More bluntly: Faux conservatives – radicals – had legislated from the bench. No party to the case had asked the Court to re-examine the doctrine dating back more than a century, to 1907, that allowed federal regulation of corporate spending on elections. He concluded that not only did the decision allowing unrestrained campaign spending by corporations threaten "to undermine the integrity of elected institutions across the Nation," but that the path taken by the Court to its decision "will, I fear, do damage to this institution."
"The basic premise underlying the Court's ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its 'identity' as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose....The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case.
"In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races....
"At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."
Senate Judiciary members should also ask Kagan whether she shares the views on corporations expressed by former Chief Justice William H. Rehnquist. A right of commercial speech "might be considered necessarily incidental to the business of a commercial corporation," he wrote in a dissent in 1978. "It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.
“A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist."
Does Elena Kagan agree with the Chief Justice appointed to the Supreme Court by President Richard Nixon that the "potentially perpetual life and limited liability" of corporations pose "special dangers in the political sphere"?
In addition, and in fairness, a few questions that I proposed be asked of John G. Roberts, Jr., when he was nominated to the Court surely ought to be asked of Kagan. These questions require some brief background, which I've cited previously:
The Fourteenth Amendment to the Constitution, ratified in 1868, soon after the end of the Civil War, declares that no state shall deprive "any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The "person" Congress and the ratifying states had in mind – the human being in need of equal protection, particularly in the states of the old Confederacy – was the newly-freed slave. Nothing in either the text or the legislative history of the Amendment suggests otherwise.
The radical change that transformed the soulless entity into a person began in California, where state law allowed taxation of the property of a corporation at a higher rate than the property of a living, breathing human. Santa Clara County taxed the property of the Southern Pacific Railroad differently. Southern Pacific fought back, and the dispute eventually reached the Supreme Court.
Chief Justice Morrison R. Waite and all of the Associate Justices chose not even to hear oral argument. Instead, in 1886 – a mere 18 years after ratification of the Fourteenth Amendment – Waite simply declared: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
The late Justice Hugo L. Black was scathing about the Waite court's pronouncement. "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection," he wrote in a dissent in Connecticut General Life Insurance Co. v. Johnson (1938). He continued:
"Certainly, when the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations. The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments. The Fourteenth Amendment followed the freedom of a race from slavery... Corporations have neither race nor color."
Now the questions for Kagan:
Q. Can you cite anything in the original intent of the Framers of the Fourteenth Amendment, in its language, or in its history to justify Chief Justice Waite's proclamation that a corporation is a person owed the equal protection of the laws?
Q. Was Chief Justice Waite's proclamation judicial activism? Was it radical?
Q. The corporation is owned by its shareholders but is at the same time a legal person. Is the corporation then a slave, in violation of the Thirteenth Amendment's prohibition of slavery?
Q. Corporations have freedom of speech. Do they also have freedom of religion?
Q. Could you explain why people who call themselves conservatives rarely if ever mention the Santa Clara ruling?
The stunningly different befores-and-afters of the Santa Clara decision were summarized by Thom Hartmann, a Project Censored-award-winning, best-selling author, and the host of a nationally syndicated progressive daily radio talk show, at thomhartmann.com:
Rights and Privileges
Before 1886: Only humans were "endowed by their creator with certain inalienable rights" and those human rights included the right to free speech, the right to privacy, the right to silence in the face of accusation, and the right to live free of discrimination or slavery.
After 1886: While to this day unions, churches, governments, and small unincorporated businesses do not have "human rights" (but only privileges humans give them), corporations alone have moved into the category with humans as claiming rights instead of just privileges.
Before 1886: In many states, it was a felony for corporations to give money to politicians, political parties, or try to influence elections: "They can't vote, so what are they doing involved in politics?!"
After 1886: Corporations claimed the human right of free speech, expanded that to mean the unlimited right to put corporate money into politics, and have thus taken control of our major political parties and politicians. [The Tillman Act of 1907 prohibited corporations and nationally chartered (interstate) banks from making direct financial contributions to federal candidates. But the law was rendered ineffectual by weak enforcement mechanisms; indirect contributions, particularly via PACs; contributions by corporate executives and employees, and a 1978 Supreme Court decision invalidating-on First Amendment grounds-a Massachusetts criminal statute forbidding banks and businesses from making certain expenditures intended to influence the vote on referendum proposals.]
Before 1886: States and local communities had laws to protect and nurture entrepreneurs and local businesses, and to keep out companies that had been convicted of crimes.
After 1886: Multi-state corporations claimed such laws were "discrimination" under the 14th Amendment (passed to free the slaves) and got such laws struck down; local communities can no longer stop a predatory corporation.
Before 1886: Government, elected by and for "We, The People," made decisions about how armies would be equipped and, based on the will of the general populace, if and when we would go to war. Prior to WWII there were no permanent military manufacturing companies of significant size.
After 1886: Military contractors grew to enormous size as a result of WWII and a permanent arms industry came into being, what Dwight Eisenhower called "the military/industrial complex." It now lobbies government to buy its products and use them in wars around the world.
Before 1886: Corporations had to submit to the scrutiny of the representatives of "We, The People," our elected government.
After 1886: Corporations have claimed 4th Amendment human right to privacy and used it to keep out OSHA, EPA, and to hide crimes.
Before 1886: Corporations were chartered for a single purpose, had to also serve the public good, and had fixed/limited life spans.
After 1886: Corporations lobbied states to change corporate charter laws to eliminate "public good" provisions from charters, to allow multiple purposes, and to exist forever.
Before 1886: Just as human persons couldn't own other persons, corporations couldn't own the stock of other corporations (mergers and acquisitions were banned).
After 1886: Corporations claim the human right to economic activity free of regulatory restraint, and the still-banned-for-humans right to own others of their own kind.
I confess that I would be cheering rather than worrying if instead of Kagan President Obama had nominated Elizabeth Warren, the Harvard law professor who heads the Congressional Oversight Panel on the banking bailout. As Alexander Cockburn wrote, "Warren is as close as we can now get to Stevens' economic populism and has been eloquent on the topic of corporate skullduggery and on the pro-bank tilt of the bailout."

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