As I told you earlier, Justice Clarence Thomas spoke Tuesday at Stetson University College of Law and the topic du jour for those in the audience was not surprisingly Citizens United v. Federal Election Commission and Thomas certainly did not disappoint. These rare public appearances by members of the Court are often overlooked by much of the maintstream media. This may be due, at least in part, to the fact the mainstreamers could care less why a Justice votes a particular way on a case before the Court as they only care about the result for their headlines. There is rarely a reference to the legal rationale or judicial philosophy applied by the Justices on their programs leaving the American People to assume decisions are a result of the Court playing politics as the pundits so frequently tell them.
With that in mind, public appearances like that made by Justice Thomas Tuesday and Justice Scalia last month are extremely revealing as they provide an opportunity for the Justices to explain their method of legal analysis in plain terms. They allow the audience to hear directly from the Justice the rationale behind his/her opinions rather than digging through lengthy Court opinions – which is why it is all the more disappointing that events such as this are covered so minimally. These are wonderful opportunities for the American people to understand the inner workings of the Court and the process that leads to opinion writing.
So, if these brief moments of candor and access are potentially so invaluable, why doesn’t anyone cover them? Perhaps the answer lies in what they want to control, what they want us to know, and what they want us to hear about. They want their constitutional lawyers’ opinions and interpretations to rule the day based on assumption and personal / political bias rather than hearing the actual rationale spelled out plainly by the Justices.
In the brief audio clip below you can see this play out in full color. Justice Thomas explains the original motives of the Tillman Act and tells the audience to go back and reread it to see that its motivations were anything but honorable and certainly not worth defending. In both the Wall Street Journal and New York Times pieces below there is also a brilliant quotation of the remarks made by Justice Thomas concerning the “controversy” regarding “corporations” interfering with elections and engaging in partisan politics. He reminds the audience that the very newspapers and media outlets criticizing the ruling are “corporations” themselves engaged in political commentary.
I am pretty confident that most Americans are slowly awakening to the reality that “corporations” weren’t the only entities that benefited from this ruling – Big Labor was certainly given a shot in the arm with decision as well, but how many Americans took the analysis to the next level to realize that political speech extends to a great many arenas beyond that of campaign advertisements?
Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.
“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”
“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.
“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”
The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.
He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.
“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”
Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.
“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”
“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.
Asked about his attitude toward the two decisions overruled in Citizens United, he said, “If it’s wrong, the ultimate precedent is the Constitution.”
Thomas is less than amused with the President’s position on this ruling and the arguments supporting the Tillman Act… You have to listen to this clip…
Audio clip via Lonely Conservative via Breitbart
The Gateway Pundit was all over this…
via Memeorandum
Clarence Thomas is an Honorable Man…
Which ……
Thanks for sharing this article with us. It is very interesting to hear and to learn how the judges came to make their decision on this case.
Concerning the actual decision, let me ask a question. Does the decision free up corporations to contribute directly to a candidate of their choice or will they be required to operate similar to a 527 group?
I don’t think the decision went quite that far from my reading of it. It only addressed corporations being able to fund their own efforts – ie. commercials, ads, etc. I doesn’t give them free reign to dump millions into the piggy banks of campaigns as many have been led to believe it does. I am an attorney but I have not completely torn the decision apart to date, but that is my general understanding. Some of the opinions critics – and as you know they are many – griped bc the limits placed on individuals was not overturned or even addressed. That could be extended to corporations as well since they are essentially seen as one person under the law.
“I am an attorney”
I knew it.
Dude, you ever feel like a pilgrim in an unholy land in this profession? I do on a daily basis. Here in NJ, it’s me and like 3 other guys. It’s a lonely feeling.
Ha. I think that’s putting it lightly my friend. I’m a St John’s grad so I know the climate in those parts all too well. The words “alternative career” never meant more to me than the day I put on the cap and gown.
Seton Hall here. It’s bad. It’s really bad. We need to get in at Landmark or FIRE. I don’t know how to get my resume’ through the door over there though.
The phrase I like best is “recovering attorney”.
Screw twelve steps for booze; we need one for us.
I thought the twelve steps for us was booze? Where did I get this so terribly wrong?
His statement is good in theory – a corporation is a group of beneficial owners. One could argue that this group should be able to speak its mind and act in its own best interest. However, in the real world, a corporation does not represent its owners as effectively as the smaller groups that Justice Thomas referenced. A major cause for this is the inefficient corporate proxy voting system. As many, many, many people have reminded us, it does not facilitate the feedback loop from beneficial owners that is necessary for successful corporate governance. These problems do not exist with groups of 10.
I certainly understand your argument WhoDat and congrats on the big win last night btw, but I think you may be overlooking a fundamental matter of choice. A corporation does have an obligation to serve the best interest of its shareholders but admittedly that universe is vast in most cases. That is where the issue of choice comes into play. If the “little guy” feels as though his voice is not being heard among the crowd he can take his money and leave – and so can the rest of the shareholders if the message is so offensive as to lead to such a situation. I fail to see how 10 or 10 million alter the variables in this equation. The issue is the right to associate and the right to free speech. I don’t know any two people similarly situated who can agree on every position in the world of politics but I DO KNOW that when they choose to share their voice 50/50 with another human being in a group, union, corporation, association, cooperative, etic…they do so with the freedom to leave said partnership at any moment of their choosing and according lose nothing by it being a group of ten or ten million.
Congrats again WhoDat. I hope you are just waking up from the celebration and ready to start anew as we speak.