TT's Lost in Tokyo — by TokyoTom

I’ve commented previously on some recent comments by comedian-turned-Senator Al Franken regarding the Supreme Court’s Citizens United decision on corporate funding of political speech.

I’ve just run into Franken’s remarks at the commencement of the Senate hearing on the confirmation of President Obama’s Supreme Court nominee, Attorney General Elana Kagan

While I don’t agree with the Left’s legislative agenda, I share the view that corporations are a driving factor in the growth of our government, increasingly rancorous fights over controlling government and corporations, and increasing mutal mistrust among citizens. As a conservative lawyer, I also share a concern that the Supreme Court, both under liberal and conservative majorities, is playing too much of a legislative role, in which it cares more about a political agenda than the Constitution. Accordingly, I am sympathetic to Franken’s recent remarks, which I excerpt here (emphasis added):

Last year, I used my time during these hearings to highlight what I think is one of the most serious threats to our Constitution and to the rights it guarantees the American people: the activism of the Roberts Court.  

I noted that for years, conservatives running for the Senate have made it almost an article of faith that they won’t vote for activist judges who make law from the bench. And when asked to name a model justice, they would often cite Justice Thomas, who I noted has voted to overturn more federal laws than Justices Stevens and Breyer combined.  In recent cycles, they would name Chief Justice Roberts.

Well, I think we established very convincingly during the Sotomayor hearings that there is such a thing as judicial activism.  There is such a thing as legislating from the bench.  

And it is practiced repeatedly by the Roberts Court, where it has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans.  

In the next few days, I want to continue this conversation.  Because I think things have only gotten worse. …

Our state has banned all corporate spending on elections since 1988.

And yet in January, in Citizens United, the Roberts Court nullified our laws and turned back a century of federal law by allowing corporations to spend as much money as they want, whenever they want, in our elections.  Not just federal elections.  Duluth elections. Bemidji elections. Minnesota elections.

There is a pattern here.  Each of these decisions was won with five votes.  And in each of these decisions, that bare majority used its power to help big business.

There’s another pattern here.  In each of these decisions, in every one, Justice John Paul Stevens led the dissent.

Now Justice Stevens is no firebrand liberal.  He was appointed to the Seventh Circuit by Richard Nixon.  And he was elevated to the Supreme Court by Gerald Ford.  By all accounts, he was considered a moderate.

And yet he didn’t hesitate to tell corporations that they aren’t a part of “‘We the People,’ by whom and for whom our Constitution was established.”  And he didn’t flinch when he told a President that “the Executive is bound to comply with the rule of law.” …

But before I turn it over to you, General Kagan, I want to talk a bit more about one of the decisions I mentioned.  I want to talk more about Citizens United.  

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.

There is no doubt: the Roberts Court’s disregard for a century of federal law-and decades of the Supreme Court’s own rulings-is wrong.  It’s shocking.  And it’s torn a gaping hole in our election laws.  

So of course I’m worried about how Citizens United is going to change our elections.  

But I am more worried about how this decision is going to affect our communities-and our ability to run those communities without a permission slip from big business. ….

Along with the Clean Water Act of 1972, the Clean Air Act of 1970 and the Motor Vehicle Safety Act are three of the pillars of modern consumer safety and environmental laws.

But here’s something else they have in common.  They were all passed around 60 days before an election.

Do you think those laws would have stood a chance if Standard Oil and GM could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections?  I don’t.

So here’s my point, General Kagan:  Citizens United isn’t just about election law.  It isn’t just about campaign finance.  

It’s about seat belts.  It’s about clean air and clean water.  It’s about energy policy and the rights of workers and investors.  It’s about health care.  It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.  

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.”

I’m definitely not in favor of a passel of burdensome federal laws, which lessen our freedom, spur on further interventions and encourage further investments in backdoor lobbying. But I do think corporate statism, enabled and driven by special grants of limited liability, legal entity status and the like, is the chief root of our problems. To have saner and less corrupt government, we have to strike at the root, and emphatically insist that it is individuals that have Constitutional rights, not “corporations” representing investors and executives, all of whom have their own Constitutional rights.

Corporations are creatures of the states, and we should acknowledge that states have the ability and responsibility to limit their rights and privileges. In this regard, we should recognize the Citizens United decision as a further usurpation of states’ rights and erosion of our Constitutional federalist system.