Haunted By Dissent - A Message from Justice Stevens from the Grave

John Paul Stevens’ blistering dissent in the Citizens United case echoes in eternity, and we need to hear his message

“Such an assumption would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.”—Justice John Paul Stevens, in his dissent in Citizens United v. FEC, January 21, 2010

I am haunted by our recent past, a theme of my work. What was happening a decade ago that made our democracy so fragile, so easy to abuse, and so vulnerable to the corruption of transnational greed?

One key tragedy occurred 13 years ago this month - the infamous Citizens United v. FEC ruling. According to Supreme Court Justice John Paul Stevens Citizens United was one of the three biggest errors that occurred during his tenure, the other two being the outcome of Bush v. Gore and recognizing an individual’s right to bear arms in 2008.

“In Citizens United, SCOTUS ruled the government has no business regulating free speech particularly that of big business so the largest corporations in the land will be free to spend unlimited funds on their candidates of favor in elections,” said Martin Sheil, a retired criminal supervisor for the IRS. “Is it any wonder that since this court ruling most of the 500 largest corporations in the land of free speech pay little to no corporate taxes?”

Stevens, one of the longest serving Supreme Court justices, said of the 5-4 ruling: “Money in politics — it’s hard to believe the extent of it.”

A code breaker in World War II who died at the age of 99 in 2019, Stevens wrote a scathing and prescient 90-page dissent in the Citizens United case, and his words are very important to revisit in this troubling time in our history.

It should be noted that the Koch brothers and Robert Mercer pumped millions into Citizens United, which was run by a campaign manager for Trump, David Bossie. It is always the same network.

Please read the following excerpts from Justice Stevens’ dissent, and may these words spur continued legal challenges as they echo in eternity:

“Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.”

“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.”

“If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans… Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”

“Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

“In a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets.”

“Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

“There are threats of corruption that are far more destructive to a democratic society than the odd bribe.”

“Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.”

“The Court’s decision will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.”

“When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment.”

“The Framers thus took it as a given that corporation could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”

Footnote 54

See Letter from Thomas Jefferson to Tom Logan (Nov. 12, 1816) - “I hope we shall … crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country,”

Footnote 55

In normal usage then, as now, the term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853–1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of “speech”: “The power of articulate utterance; the power of expressing thoughts by vocal words”); 2 N. Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of “speech”: “The faculty of uttering articulate sounds or words, as in human beings…

As I read Justice Stevens’ words, his powerful fight against what he knew would be allowing the speech of Tokyo Rose - an enemy propagandist - equal weight of Allied commanders, I realized that we’ve been allowing ‘Tokyo Rose’ to bleed into our homes, computers, cell phones without any defense.

Thomas Jefferson in 1816 knew better - that you don’t coronate corporations.

We often simply react to the news of the day, continually shocked by the depravity of the deplorables who grifted their way into political office. We comfort each other with memes and wit, masking a fear that the light may truly be dimming on our democracy.

I believe in revisiting our recent past, and mapping the network that is assaulting our democratic protections, we are able to see where we need to fight back. Let Justice Stevens words be fuel for that fight.

Overturn Citizens United and get Tokyo Rose out of our homes and billionaires out of our elections.

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