San Diegans Rally Against Citizens United Decision

by MARK GABRISH CONLAN

Copyright © 2012 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

    One hundred protesters from Occupy San Diego, Activist San Diego, Common Cause, the League of Women Voters and a wide variety of organizations arrived January 20 for a rally outside the Federal Building in downtown San Diego to protest the U.S. Supreme Court’s two-year-old Citizens United decision. But instead of the traditional location directly in front of the Federal Building, it was held on a side lot two blocks away, a less visible space.

The rally featured speakers Marjorie Cohn, professor at Thomas Jefferson College of Law and former head of the National Lawyers’ Guild,; Lori Saldaña, former California State Assemblymember and current candidate for Congress against Republican incumbent Brian Bilbray; and Tara Ludwik, a 37-year-old single mother from Point Loma who described herself as “amazingly moderate” politically until last September, when she joined Occupy San Diego.

Ludwik mentioned the 100th anniversary of the Industrial Workers of the World’s (IWW) Free Speech Fight in San Diego, “where the IWW, one of the first international unions, put up soapboxes, real soapboxes, along ‘E’ Street between Fourth and Sixth Avenues. They were protesting the economic injustice of the 1 percent back then, specifically the Spreckels family. And here we are again, 100 years later, fighting that same fight.”

Ludwik pointed out the similarities to the way the IWW’s soapbox orators were treated by the San Diego city government and police department in 1912 and the way Occupy protesters are being treated today. “The city leaders quickly passed a local ordinance banning free speech in the Gaslamp Quarter,” she explained. “With the help of citizen vigilantes — whom we now call Right-wingers — the San Diego Police Department used harassment, intimidation, detained and brutalized the members, and even killed members of the Wobblies [IWW].”

According to Ludwig, California’s then-Governor, progressive Republican Hiram Johnson, appointed Commissioner Harris Weinstock to lead an investigation into San Diego’s systematic destruction of free-speech rights. “Weinstock reported, ‘The right of free speech should be inviolable, and it should not be left to the police and their discretion to prevent men from exercising this Constitutional right. Your Commissioner, Governor, finds the Police Department of the City of San Diego has gone beyond its legal limitations in forbidding men and women from holding street meetings.’ Does this sound familiar? It did to me, too.”

Ludwik said that in the modern era, “we’re still fighting for our free-speech rights. They’ve been hijacked by corporations and the billionaire families of today. They are still using the police department to suppress our free speech, again with harassment, intimidation and illegal detainment without charges. We see history repeat itself again in the streets of San Diego.” Ludwik drew another historical parallel to the murder of Rev. Dr. Martin Luther King, Jr., who at the time he was killed was planning to lead a Poor People’s Campaign, setting up a tent city in Washington, D.C. to call public attention to economic inequality and injustice — essentially an Occupy-style campaign in 1968.

The two other speakers, Cohn and Saldaña, focused more on the specific facts of Citizens United and its impact on the 2010 and 2012 elections. “In Citizens United, a five-justice majority of the U.S. Supreme Court gutted campaign finance laws, saying they violated corporations’ freedom of speech,” Cohn explained. “The Court ruled it was unconstitutional to limit in any way the money corporations spend in attack ads or other electioneering to influence a political race. Citizens United opened the floodgates to unlimited ‘independent’ election expenditures by corporations … and made it harder for citizens to know exactly who’s behind it.”

That, Cohn said, is because the primary vehicle by which corporations are using their new-found power to control our politics is through so-called “super-PAC’s” (“PAC” stands for “political action committee”), which can raise and spend unlimited amounts of money to support or oppose particular candidates and, unlike the candidates’ own campaigns, don’t have to disclose who their donors are. The only legal restrictions on super-PAC’s is they may not “coordinate” their activities with the official campaigns of the candidates they’re supporting — and even that limit, Cohn said, is honored more in the breach than the observance. She cited Stephen Colbert’s satirical attempt to get on the Republican Presidential primary ballot in South Carolina with the aid of a mock super-PAC run by Jon Stewart, who hosts the show that runs just before him nightly on the Comedy Channel — but who, according to the way Citizens United defined the law, has only a “passing acquaintance” with Colbert.

“Super-PAC’s have changed elections,” Cohn said. “Over 1/3 of all outside ad spending in the 2010 Congressional elections came from secret sources made possible by Citizens United. Super-PAC’s gave Republican [Presidential] candidates who lost badly in Iowa and New Hampshire the money to keep going. Usually they’d be out of the race by now, but super-PAC’s are making everybody spend more money.” She also quoted retired Justice John Paul Stevens’ dissent in Citizens United, which mocked the majority opinion by saying, “While our democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

Cohn also explained how corporations became legally acknowledged as “persons” in the first place. It happened in 1886, when the U.S. Supreme Court heard a case called Santa Clara County v. Southern Pacific Railroad. “A passing remark made by the Chief Justice before oral argument that corporations were entitled to protection under the Fourteenth Amendment was recorded by the court reporter,” Cohn said. “That passing remark was picked up in later Supreme Court decisions affirming that corporations have constitutional rights.”

Saldaña recalled her own experience running for the California Assembly as a political novice against highly connected opponents in both the Democratic and Republican parties. “In my first campaign I signed the clean elections pledge, which limited my total spending to $350,000,” she recalled. “I was told I had no chance to win. I won 40 percent of the vote in the Democratic Party. I was outspent by over $1 million in that campaign, and people who were doing the analyses afterwards were scratching their heads wondering, ‘What happened?’ The people spoke, and the people overwhelmed the money.”

Though defenders of Citizens United have argued that it was fair because it freed labor unions, as well as for-profit business corporations, to make unlimited donations to political campaigns through super-PAC’s, Right-wing activists have qualified so-called “paycheck protection” initiatives for the November 2012 ballot in California and other states that would effectively kill union political activity by requiring unions to get signed permissions from each of their members, every year, to use shares of their dues for political activity. Meanwhile, says Saldaña, in the financial industry it’s just the reverse: financial corporations can spend any of their money on political activity any way they wish, but their employees are forbidden from contributing their own money as individuals unless they get permission from their bosses first.

“Money should never equal speech,” said Saldaña. “You see that in Civic Center Plaza, where people are being told they cannot put up a soapbox and speak. We need to organize not only in defense of the right to speak, but also the right to vote. We have a government ‘of the people, by the people and for the people’ who vote. Get out there and show that the people can overturn money.”

The people’s power to overturn money is, according to some legal scholars, under threat from a broad-based offensive by a Right-wing U.S. Supreme Court. Citizens United, they argue, is just the start of a movement to return the Supreme Court to its position from the 1880’s to the 1930’s, in which it declared in case after case that any government interference with the workings of the private economy deprived corporate “persons” of their rights to equal protection and due process under the 14^th Amendment. While, as Cohn pointed out at the rally, the 14^th Amendment was passed three years after the end of the Civil War (1868) and its purpose was “to protect the newly freed slaves,” a Republican Court majority soon seized on it to protect corporations against minimum-wage laws, regulations protecting workers’ health and safety, and virtually any regulation that might interfere with corporations and their ability to maximize profits.

The most notorious of these cases was Lochner v. New York, decided in 1905, in which the Court invalidated a New York state law setting maximum daily and weekly hours for bakers. As Jedediah Purdy explained in “The Roberts Court vs. America,” an article in the winter 2012 issue of Democracy: A Journal of Ideas (available online at http://www.democracyjournal.org/23/the-roberts-court-v-america.php), the Court ruled in Lochner “that the law violated constitutionally protected ‘liberty of contract,’ the freedom of both employees and employers to make whatever agreements they saw fit.” Between the 1880’s and the 1930’s, Purdy explained, “the Supreme Court struck down more than 200 pieces of state and federal legislation as violations of ‘economic liberty’” — including minimum-wage laws and laws guaranteeing workers the right to join unions.

Today, according to Purdy, the Right-wing Court majority has the same reactionary economic agenda as the Lochner court but has adapted its strategy for a different sort of economy. Instead of the 14^th Amendment, Purdy argued, it has seized on the First Amendment and has essentially overruled a 1942 case that “purely commercial advertising” did not constitute constitutionally protected “free speech.” Indeed, one quite remarkable passage in Citizens United — written not by Justice Anthony Kennedy, who wrote the majority opinion, but by Antonin Scalia in a previous case Kennedy was quoting — says that restrictions on corporate speech “muffle the voices that best represent the most significant segments of the economy.” This suggests that to the current Supreme Court majority, corporations are more important economic actors than flesh-and-blood humans and therefore should have more speech rights.

Justice Kennedy appeared to endorse this position in 2011, when he wrote the majority opinion in Sorrell v. IMS Health, in which the court threw out a Vermont law barring the sale of information on individual doctors’ drug prescription records to pharmaceutical companies unless the doctors specifically gave permission for their records to be sold. Kennedy, Purdy explained, “wrote that the law was unconstitutional because it burdened speech — i.e., marketing — based on the identity of the speaker (patent-holding pharmaceutical companies) and the content of their message (advertising of drugs). Kennedy described the issue as follows: ‘The State may not burden the speech of others in order to tilt public debate in a preferred direction.’ … There is, of course, something otherworldly about describing as ‘public debate’ companies’ targeted pitches to physicians. … [T]he case extended First Amendment protections beyond anything recognizable as speech.”

Purdy summed up the Right-wing economic ideology behind both Citizens United and Sorrell as follows: “[M]arkets are the best way … of capturing and maximizing … value. Therefore, elections and other institutions should come to resemble markets as much as possible. The one incontrovertibly valuable kind of freedom, then, is freedom that makes markets work. It is in this market-fixated climate that courts can declare that spending is speech, advertisement is argument, and the transfer of marketing data is a core concern of the First Amendment. …Whether in elections or in marketing and the vast data economy behind it, the market itself, with all its inequality, is ever more thoroughly constitutionalized as a realm of freedom.”

As on so many issues, the Left has been divided on how to respond to Citizens United. Reformist liberals have called for legislation narrowing the scope of the opinion, perhaps by subjecting super-PAC’s to requirements that they disclose their contributors, just as candidates’ official campaigns have to do. Others have called for amending the Constitution itself, though they split on exactly how they would want to change the Constitution. Some would simply reverse the decision and add to the Constitution a provision that money does not equal speech and therefore the government can prevent corporations from donating to campaigns and enact limits on contributions and expenditures.

But the one essentially endorsed at the January 20 event was a far broader proposal from a coalition called “Move to Amend,” whose banner was posted as a backdrop to the speakers. Move to Amend wants to change the Constitution to “firmly establish that money is not speech, and that [only] human beings, not corporations, are persons entitled to constitutional rights; guarantee the right to vote and to participate, and to have our votes and participation count; [and] protect local communities, their economies and democracies against illegitimate ‘pre-emption’ actions by global, national and state governments.”

EDITOR'S NOTE: An earlier version of this post stated that the rally was originally scheduled for the front of the Federal Building until Department of Homeland Security (DHS) agents moved it to the grassy area south of the Federal Building where it took place. According to an e-mail received from event organizer Pam Page, the permit for the event was originally arranged for that location and "in no way did Homeland Security move the event or restrict our actions. Quite the opposite. On the day of the rally, HS officers were courteous and respectful of us as well as those in attendance." Zenger's regrets the error and has corrected the post above, as well as the version of this story in the March 2012 print edition, to reflect Page's information.