Essentially Contested America

The question of the role of corporate funds (”speech”) in the marketplace of ideas is one that is vital to democracy. Again Bill Moyers provides a forum for an essential debate soon to be heard before the Court.

September 4, 2009

BILL MOYERS: Joining us now is Trevor Potter who had a hand in creating the McCain-Feingold campaign finance reform legislation. On its behalf, he has filed one of the more than 50 friend-of-the-court briefs submitted in this current Supreme Court case.

Trevor Potter heads the political activity law practice of the firm Caplin & Drysdale in Washington and served as general counsel to John McCain during the Senator’s 2000 and 2008 Presidential Campaigns. He’s former chairman of the federal election commission. And he’s the founding president of the campaign legal center. A nonpartisan group committed to quote: “Representing the public interest in the enforcement of campaign and media law.” Good to have you.

TREVOR POTTER: Thank you very much.

BILL MOYERS: What’s the public interest in this case?

TREVOR POTTER: The public interest in this case is enormous. It has grown significantly as the Supreme Court has changed the case. It started with a question of whether a particular film funded with for-profit corporate money could be advertised on television. It has morphed, or the Supreme Court has turned it, into a case about whether 100 years of American tradition of regulating the speech of for-profit corporations in election should be changed. Whether the Supreme Court should legislate that what the government has done for 100 years, starting with Theodore Roosevelt, what more than 22 states do, in terms of restricting corporate spending in elections should be overturned. That’s a big deal.

BILL MOYERS: I’ve read your brief. And you clearly think it’s dangerous– you didn’t use that word. But dangerous to allow corporations and unions to spend so much money in an election, and at certain times. I mean, but don’t they have important questions to address?

TREVOR POTTER: Well, let’s start with a couple things. First, everyone says corporations and unions and it sounds as if there’s some parody here. This is a case about corporate money. If this case is won by the corporation, we will be in the ironic situation where corporations will have no limits on what they can spend in elections and unions still will. So, it’s important to remember we’re talking about corporations.

BILL MOYERS: But aren’t those corporations, don’t they have important things to say, important issues?

TREVOR POTTER: They probably have a lot to say. The question is, first of all, who are they? Now, you and I have never seen a corporation walking down the street and we haven’t seen one in the voting booth. That’s because corporations are creatures of the state. That sounds like some piece of law school mumbo jumbo, but it’s not. Corporations exist, because government said, “We’re going to give you limited liability for commercial, for economic purposes. We’re going to take somebody who might have lost everything they invested and we’re going to say you can limit your liability by having a corporate form. You only lose what you invest.”

That was an economic revolution when it happened. But it was done for economic purposes. Corporations exist because somebody creates them, goes down, files the paper with the state. The state blesses them and gives them a special status. So, what I think is that corporations exist for economic purposes, commercial purposes. And that the notion that they have full First Amendment free speech rights, as well, doesn’t make any sense for this artificial creation that exists for economic, not political purposes.

BILL MOYERS: In the briefs she filed for the government, our Solicitor General, Elena Kagan, makes that same case. She says they’re artificial persons. They don’t die. They don’t get sick. They amass great wealth. And because the state created them, the state has the right to try to limit their activities in non-economic or political–

TREVOR POTTER: I think that’s true, but it goes beyond that. Corporations exist solely to make money. Amassing economic power. They want, if they could get it out of government, monopolies. They want the ability to defeat their competitors. And if they can use government to do that, they will. Individuals have a whole range of interests. Individuals go to church, they care about religious and social issues, they care about the future of the country. They’re voters.

So, they have a range of issues at stake that corporations don’t have. Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere, when we’re deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy.

BILL MOYERS: What do you think will be the result if Floyd Abrams and his side prevail next week with the Supreme Court?

TREVOR POTTER: I think we would see an enormous change in the way our democracy is conducted. And that’s really dangerous to think that that would happen in a case that, you know, as I say, the Supreme Court has largely created, because there are very narrow ways to deal with this issue, and one that would be contrary to what the Congress has done again and again in 1907, ‘25, Taft-Hartley in ‘47, federal campaign law in ‘74, McCain-Feingold. All of these are part of that tradition of saying that individuals speak and vote and are citizens and corporations have a different status. And they ought to be focused on the economic marketplace and not the political marketplace.

TREVOR POTTER: I think there’s some risk here that the court will forget. That it is dealing with laws passed over a century by Congress, by the other branches of government, that, in my view, have worked well. And so, in some ways, what you have here is a solution in search of a problem. And that’s worrisome.

BILL MOYERS: What did you think as you heard Floyd talk about the fact that yes, maybe in a corporation there should be some limitations, but when it comes to free speech, no limitation.

TREVOR POTTER: I respectfully — and I have enormous respect for Floyd and his career as a First Amendment lawyer — I thought it was backwards, because it seemed to me that corporations ought to have great latitude as economic competitors, restricted by the laws that Congress has put in place on competition. But basically, corporations exist for economic reasons. That’s where you want them competing. These courts have never said corporations have full First Amendment rights.

And I think that’s the right balance. Floyd talked, “Well, if corporations are too powerful, then we should make them smaller.” But I don’t think that makes sense in society, when we’re trying to have corporations competing in a global marketplace. So, to me it’s backwards to say we’re going to give them political rights and then we’re going to turn them into different size corporations to deal with that.

Seems to me you want them to be good competitors in the world and you don’t want them to be overpowering the political marketplace at home. And that raises another issue here which no one has really been talking about. And that is corporations are global. We have international corporations. We have had a long tradition in this country of saying that foreign nationals may not participate in U.S. elections and that includes a ban on political speech. What about foreign corporations? What about multi-national corporations? I think you’re opening a can of worms on that.

BILL MOYERS: Are you opening a can of worms?

FLOYD ABRAMS: You’re opening the faucet, so to speak, so that more speech can occur. I don’t think it’s a can of worms to say that corporations, and it is unions as well, ought to be able to participate in the give and take of the democratic processes in the country. From my perspective, at least, the notion of saying that corporations and unions should be out of the picture either because they’re too powerful, or because of the way their money has been created, is so inconsistent with the sort of First Amendment approach that we take in everything else, where we say over and over again, we don’t care who the speaker is, we don’t care where the speaker’s coming from. And speech, we think, is, as a generality, a good thing.

TREVOR POTTER: We do think speech is a good thing. The question though is should it be citizens, individuals, voters, who are speaking? Or should it be this artificial corporate entity, which we have, through law, given enormous economic power to. And what the court has said all along is there is a difference between the two. The court has never said that corporations have the right to unlimited independent political speech.

BILL MOYERS: This movie’s not the issue.

TREVOR POTTER: The movie started as the issue. And as Floyd has noted, it’s becoming a much bigger case with a fundamental issue in it. And I look at it and say, “Why? What is wrong with the law as it stands?” And I don’t see the answer.

FLOYD ABRAMS: I think one of the reasons it’s become a much bigger case is the candor of the representative of the Solicitor General’s office. Who, answering a hypothetical question asked, during the argument in March, said, yes — as a constitutional matter, Congress has the power not just to deal with television and cable and the like, but books. Yes, if — he said — yes, if a book is partially funded by a corporation, Congress has the power to say that within certain time zones, et cetera, during an election campaign, that the publication of the book can be a crime. And there was some audible intakes of breath on the Supreme Court when that was said. Now I happen to agree, that’s been the law for awhile.

FLOYD ABRAMS: But I don’t think we can live with that.

TREVOR POTTER: I’m laughing, because I think that is the epitome of a red herring here. The Solicitor General was answering what Floyd correctly says was a hypothetical. That’s where you are in law school, and they say, “Well, just supposed the facts weren’t as they are, but they were something else entirely.” The reality is there has never been a case in all the years we have had these laws prohibiting corporate spending prosecuting anyone for publishing a book.

The law itself has an exemption for commercial speech. So, if somebody is engaged in selling a book, it’s completely exempt anyway. There’s an exemption for press activity. So, this goes to my point, what we’re doing here — and I think this is why it’s dangerous — is we’re essentially having a high level law school seminar on the Supreme Court about hypothetical, constitutional questions. But the potential result of that, because it is the Supreme Court, is they could end up changing the real world, when the real world actually functions without any book banning at all.

FLOYD ABRAMS: See, but what I think is going on is that the court acting properly, acting it should, is sort of exclaiming if you can do it to a movie, you can do it to a book. Tell us the difference. The answer is, “There’s no difference.”

TREVOR POTTER: No, the answer is the law doesn’t do it to books. And the law–

FLOYD ABRAMS: But–

TREVOR POTTER: –only restricts corporate money for movies, if you construct this sort of a case to make sure that the activity is not covered by any of the exceptions that are in existing law.

BILL MOYERS: But both of you have conceded that this is about more than a movie or a book. This is go fundamentally to the role of corporations in our political elections. And this concerns you, because you say in your brief that this is dangerous.

TREVOR POTTER: Well, if you just look at the numbers here you are dealing with a world we just have never seen in elections. Exxon Mobil has a political action committee, which means voluntary contributions given by shareholders and executives, about 900 thousand dollars in the last cycle. It made last year 85 billion dollars.

Now, there’s just a world of difference in the resources available if you say to a corporation, “You can spend money to defeat global– candidates who are in favor of global warming legislation.” If coal companies can go out and say, “If you don’t sign our pledge to support coal we’re going to defeat you. We’re going to spend money against you.” You take those enormous economic resources and you use them for something that we’ve never seen before. That I think is the radical nature.

FLOYD ABRAMS: I think that’s a real exaggeration about the likely impact if the side I’m on happens to win this case. We have 28 states now that allow unrestricted contributions, as well as independent expenditures. We haven’t seen anything in the way of corporate control. And it’s easier to control a state than it is the country. Coming about or distortion of the processes coming about as a result of the fact that corporations can give and can spend in all these states.

So, I don’t think there’s a real reason to think that the large corporate entities in this country are going to run the risk of public wrath, stockholder suits, new attempt at legislation, coming out against, a popular president or an unpopular Congress? I mean, I think as a practical matter we really shouldn’t fear so much the impact of having a greater amount of corporate money in play in allowing them to speak out.

BILL MOYERS: Would you disagree with the claim that big business dominates the political discussion today? Whether it’s the drug industry or the health insurance industry? Big business is the dominant force in Washington. I mean, I see that as a journalist.

TREVOR POTTER: Well, if that’s true. Just wait till you have unlimited spending by corporations, because you’re saying they dominate in a world in which they have very limited PAC contributions. And they can’t go out and advocate the election defeat of candidates. I would disagree with Floyd, I think, on what we know about the states. First of all, there’s no record in this case, because this issue was not litigated on this basis at the lower courts. So, we don’t– there’s no opportunity to brief for the Supreme Court–

FLOYD ABRAMS: Well, I think we’ve had a lot of–

TREVOR POTTER: What we have learned–

FLOYD ABRAMS: –supplemental briefs.

TREVOR POTTER: Well, I mean, they’re 15 pages long. We haven’t had a trial court look at the information from the states. There was just a recent study out of California, which is one of the states that allows full corporate spending, in which that state’s campaign finance board said there’s an enormous amount of corporate spending. It is directly influencing candidates and elections. And it’s hidden, because it’s going through all these groups that are front groups and sound like the, you know, Committee for a Better California. And it’s really corporate spending, which, of course, avoids those angry shareholders, ’cause they don’t know about it.

In judicial elections, there is an increasing record of spending by the chamber of commerce and other business groups to elect judges who will rule in their favor, because that’s in their economic interest. If you open this up at the federal level, just imagine the incentive for a corporation that only needs a little piece of this bill, a little piece over there to make their competitive position better than their commercial opponents.

FLOYD ABRAMS: And that’s why we’ve banned contributions. But in terms of having speech from the corporations, speech from the unions, the notion that allowing that will therefore result in vast changes in the political system is not only untested but unlikely. And I’d add another note. And that is I don’t know and none of us know the consequences of allowing more speech in this area. We don’t usually judge in the First Amendment area on the basis of what we suspect consequences might be.

If speech is allowed, it’s allowed. If speech is of the sort that we permit, which is just about everything, from just about everybody and just about everything, we don’t say, “You know, come to think of it, if we have too much Glenn Beck the country is going to really suffer from it.” We don’t live like that. We start–

BILL MOYERS: But we’re not talking about free press issues here. We’re talking about the power of an organized economic interest to spend vast sums of money that individuals can’t spend.

FLOYD ABRAMS: I don’t hear you using the word speech. I mean, it’s all very well just to characterize this and diminish the problem by calling it just spending a lot of money. It’s more than that. It is participating in the political process. It is speaking out. It is being heard. I’m in favor of more disclosure to deal with the secret sort of problems that Trevor has correctly identified. But in terms of saying that it is as a policy matter, let alone a legal matter, but even as a policy matter something we should avoid and fear if we have more active, loud, public participation in the political process, my reaction is that is the core indeed of what the First Amendment has always been thought to be about.

BILL MOYERS: Do you really believe that the founders, the men who wrote the Constitution included corporations in the idea of free speech

FLOYD ABRAMS: I don’t know.

BILL MOYERS: Jefferson in 1816 wrote a famous letter about the aristocratic, moneyed corporations, and how they were a danger to us. And the evidence seems to me to the contrary, that they were worried about the power of these economic entities to dominate the political process.

TREVOR POTTER: Well, they thought we were a representative– they wanted us to be a representative democracy, representing the electors. And the electors are not corporations, which are not individuals and don’t vote.

BILL MOYERS: What about that? That seems to me, the real basis of this. Is a corporation the same as an individual for the purposes of free speech?

FLOYD ABRAMS: Well, media corporations certainly are, are they not?

BILL MOYERS: Well, that’s First Amendment free press.

FLOYD ABRAMS: Thanks a lot. But that’s free press, you say. Why is it that large corporate entities, which own newspapers and broadcasters are treated, indeed as I think they should be, but treated as if Congress can’t touch them in this area. The notion of saying, General Electric ought to get more power and more rights than General Motors? I don’t find that in the Constitution.

TREVOR POTTER: Absolutely not. But what–

FLOYD ABRAMS: And the fact that General Electric owns NBC doesn’t change that dynamic. And the fact that Viacom had ownership interest of CBS doesn’t change that or shouldn’t change that. I mean, the First Amendment is not just the property of the press. The press deserves, and gets, but deserves the broadest protection. But so do all other speakers. And once we get an institutional press-only First Amendment we’re going to have a lot more problems than we’re bargaining for.

TREVOR POTTER: My point is I think we’ve had a press First Amendment for almost 100 years and we have not had problems. The example that Floyd gives I think proves it. Which is NBC has freedom of the press, because that’s its function. Its owner, GE, has a more limited speech freedom, which is, under current law, to speak to its shareholders speak to its executives, internally endorse candidates, but not go out and spend the billions of dollars it has in the general political marketplace. The press is in a position where it is able to speak with full constitutional protection. That is not true of the seller of shoes or automobiles, where you and I go out and buy them irrespective of their political views and may not know their political views. We just want their product where their shareholders are in it for economic gain, not to advance political views.

BILL MOYERS: But this is not an issue of free press. It really isn’t. This is an issue of free–

FLOYD ABRAMS: This is an issue of free speech.

BILL MOYERS: And you’re– I come back–

FLOYD ABRAMS: And why are we limiting free speech? If the movie had been funded in a different way, if the funds had come from different sources, then respectfully, but thanks very much– then it would be protected. But because the funding came from a corporation. Because of that, we can make it a crime to put the movie out. That I think is an unacceptable articulation of not only what the First Amendment has meant. But what it ought to mean, as well. We should not make technical distinctions about the degree of First Amendment free speech rights, depending on the nature of the entity that engages in the speech.

If a company wants to speak out beyond an issue. If they want to condemn a Senator who is opposing legislation that has an impact on the company’s interest, economic or otherwise to me it’s just anathema to the notion of free speech to say, “Well, you have to understand it’s a company. Their funding is different.” That’s not the way we ought to go about deciding the limits of free speech.

TREVOR POTTER: I think you, though, understate the enormous amount of speech that exists in the current system, which is essentially full free speech for individuals; the ability of a corporation or a union to have a political action committee gather individual funds and spend that, the exemption that exists for the press; the commercial exemption that exists; the exemption that the Supreme Court created for nonprofit corporations, as long as they’re not a conduit for corporate funds.

Everybody has the ability to participate in the political process, meaning here the election or defeat of candidates, except the for-profit corporations using the shareholders’ treasury funds. That, it seems to me, is a appropriately narrow exemption given whose money that is, the shareholders and the circumstances under which it was created. They can still go out and attack a Senator. They do all the time.

BILL MOYERS: Why should the executive of a board of a big corporation be able to take– you know, I have 401(k)s and retirements and I’m invested in those firms. Why should they be able to take money from the shareholders and back particular candidates or run particular-ads?

TREVOR POTTER: Well, that, of course, is a whole different issue, which we really haven’t talked about. Which is, wait a minute, whose money is this anyway? It is not the CEO’s, who’s making the decision. If you’re going to say corporations should have speech, then you open the whole question of, “Well, who decides what that speech should be? Don’t you consult the shareholders? Do you allow shareholders to opt out? The way you allow union members to opt out of having their money used?”

FLOYD ABRAMS: But–

TREVOR POTTER: But it seems to me you don’t need to get there, because you have the political action committee already.

BILL MOYERS: There’s no shortage of corporate speech in this country, right?

TREVOR POTTER: That would appear to be the case if you look at–

FLOYD ABRAMS: Well, I think you’re wrong, Bill.

TREVOR POTTER: –any daily television.

FLOYD ABRAMS: I think you’re wrong. To say, “Well, we can just carve out this area. We can carve out the speech of these entities, the entities, corporations, not their officers. Not their boards. The corporation, as determined by the folks that run it and the shareholders and whatever way state law determines to say that those entities may not be heard in their own voice, with respect to continue with the–”

BILL MOYERS: Their own voice? Whose voice?

FLOYD ABRAMS: The corporate voice. Who runs the corporation? Management runs a corporation. Shareholders can–

BILL MOYERS: So, this is the speech of the managers of the corporation?

FLOYD ABRAMS: No, it’s not just that. I mean, you’re not objecting to the notion of corporations, in general, Bill.

BILL MOYERS: I object to the notion–

FLOYD ABRAMS: I mean, corporations–

BILL MOYERS: –that a corporation is equal to an individual.

FLOYD ABRAMS: The fact that we’re suspicious of corporations sometimes and of unions, sometimes, not only because of what they say, but because of their power and what they might do, is just not a good reason to say that they have to be silenced.

TREVOR POTTER: I think the difference here is that Floyd presents that as a dangerous and novel idea. And says we shouldn’t go there. I respond by saying, we are there. We have been there for many, many years. The system has functioned, I think, well. So, to me, it is Floyd who has the dangerous and novel idea, which is we should change what has worked, has been held constitutional and go to a system when we have no idea what the effect will be, but based on what we can see, and have seen in the past, we could really have some bad affects on our democracy.

BILL MOYERS: Well, the–

FLOYD ABRAMS: My novel idea goes something like this. “Congress shall make no law abridging the freedom of speech or of the press.” I don’t think that those words are consistent with a regime, a system of law, which bars the amount of speech that we’re talking about today.

TREVOR POTTER: I think that my historical perspective is oddly longer than Floyd’s. And that we would be going back before 1907 and Theodore Roosevelt and the prohibitions on corporate activity in federal elections. We’d be going back to the senator from Standard Oil. That would be a very different world and one that no one alive has ever seen.

BILL MOYERS: We know all this started because it was revealed that Theodore Roosevelt had received secret contributions from New York insurance companies, when he was running, because they wanted legislation out of Congress that would benefit their position. And when the revelation was made, not before, but when the revelation was made, Roosevelt was so embarrassed, he raced right up to Congress and said, “We’ve got to do something about this.”

FLOYD ABRAMS: That’s why we have to be afraid of Congress and politicians making decisions in this area.

BILL MOYERS: But these are positions that you leave to legislatures. I thought conservatives–

FLOYD ABRAMS: You don’t leave free speech decisions to legislatures.

TREVOR POTTER: I would say that legislatures are uniquely knowledgeable here about how legislation has actually made. And your point is that legislators then knew that corporate money was influencing their decisions.

BILL MOYERS: Senator from Standard Oil.

TREVOR POTTER: And what came out of Congress to govern the rest of us. That was what was shown in the long record in the McCain-Feingold litigation. Members of Congress said corporate money is affecting directly amendments, what is voted on, the final language of legislation that has a disproportionate, corrupting influence on what is happening in Congress.

FLOYD ABRAMS: I asked Senator McCain–

TREVOR POTTER: That’s the worry.

FLOYD ABRAMS: –when I took his deposition, in that case, to give me an example of a vote that was changed because of contributions or independent expenditures. And he did not and could not do that.

TREVOR POTTER: Senator McCain is a very polite man, who respects his colleagues and if you go back and look at the record there were a number of affidavits from former members. Interestingly, it’s the former members in this who are the truth tellers. They’re always the ones who say, “Let me tell you what happened when I was there.” And why is that? Because they don’t have to deal with their colleagues, they’re not up before the voters and admitting something terrible. So, they can say, “This is what I really saw.”

And I think that’s the other piece of this whole case, is we’re not just talking about the ephemeral or the broad idea of what is a free speech right of a corporation. We’re talking about how does the legislative process actually work. And what sort of corruption or apparent corruption would you have if you had the ability to spend this money?

BILL MOYERS: As a journalist, I have seen over the years, done documentaries, have reported on this issue, money and politics. And I’ve seen the consequences of huge sums of money in our political process result in legislation biased for the corporation.

But on this point, we will close now. But I want to give both of you a chance to wrap up your case by giving me your response to what the Solicitor General of the United States, Elena Kagan, will say to the Supreme Court next Wednesday. In her brief, she argues that the use of corporate treasury funds is quote, “inherently likely to corrode the political system, both by actually corrupting public office holders and by creating the appearance of corruption.” Do you think that is a justifiable concern?

FLOYD ABRAMS: I don’t think it’s true. I also know the record from the McConnell case. God knows how long it is. And there wasn’t any proof of corruption. So, my reaction is, I think she’s exaggerating on the one hand. And I think she’s ignoring on the other because she doesn’t even acknowledge that this is a free speech issue.

We are confronted with competing values here. And the values of speech are at odds in this area with the desire of well-meaning and very serious people, to do what they think they should to make the system work better. And my view is that the speech interests here are very high, very important, very serious and that when you take them into account you can’t sustain the sort of statutes that we now have on the books and that the Supreme Court is, essentially, taking a second look at.

TREVOR POTTER: Well, I think the Solicitor General’s comments to the court are a warning bell in the night. That she is right that there are enormous implications to this case. I think, ironically, one of the reasons she’s right is because of the very natures of corporations. As we’ve discussed, they exist to make money. They are profit-maximizing. That’s their job.

So, we’re not talking about political speech by people who care about their country, who are concerned about changes in society, who are dealing fairly with friends and neighbors and all the things that get involved in politics. We’re talking about a potential spender here that has a single-minded purpose, which is to make more money, to maximize their value. And I think what we’re looking at here is not a First Amendment speech right, because the individuals who head those corporations have that now, their PAC’s have it now, their shareholders have it now. We’re talking about using the funds that are amassed under the preferential corporate treatment, to go out and seek economic gain, what they call economic rents, through legislation, by electing people who will give the corporation what it wants, whether or not is in the greater good. And I don’t think that’s the essence of democracy. And I don’t think it has been or should be the way the First Amendment is read.

Americans have been wary of too much government from the Republic’s inception. We fought a revolutionary war against tyranny, twice within the first fifty years of our great nation’s existence, and several times thereafter. And government, our government, was a lot smaller then. But is anyone else getting tired with the inbred American aversion to progressive governmental efficiencies which can bring about the goods and services Americans want and need and which justice requires? After all, we, the people are, in the final analysis, the government. Accordingly, the government should be as capacious as we, the people want it to be. If we want government to be involved in health care, the economy, the financial system, the environment, education, well, then it should be.  That’s what a republican democracy is for, to wit: within the confines of constitutional constraints, here the people rule. Unfortunately, this inbred American aversion goes back as far as our first great President and perhaps made special sense then. Consider the following statement of the debate over whether we should have a bicameral legislature. “[A] bicameral legislature slowed down the legislative process. That was a good thing to many of the framers, who worried about excessive government power.  When Thomas Jefferson questioned the role of the Senate in the 1790s, George Washington allegedly asked:  ‘Why did you pour that coffee into your saucer?’ ‘to cool it,’ said Jefferson.  ‘Even so,’ replied Washington ‘we pour legislating into the senatorial saucer to cool it.’” Linda R. Monk, The Words We Live By: Your Annotated Guide to the Constitution (2003).  But in cooling it, we risk seeding the ground for killing it. Sure sometimes that’s good.  But it’s also good to have a lean self-governing process to which the majority–consistent with preserving minority rights–can have access.  Absent such a viable process, well-funded special interests control the destiny of the American Republic. In these circumstances, the corporations rule, not the people.  That can’t be good for the majority of Americans, can it? I know, I know, the founders created a Republic, not a Democracy. But is this distinction quite as useful as perhaps it once was, if it ever was?.  Most Americans want to live in a self-governing polity where the right to self-government–collective-self-direction–permits us to achieve the benefits of our labor–everyone’s labor–and also the benefits of civilization. Several times in American society the private sector has been given its chance and each time the results were problematic at best at least for most Americans.  I know, I know. American capitalism produced more economic growth than any other nation or system and is currently the envy of and the model for the world. But what has it done for us lately. And what do we call “economic growth without fair distribution”? Perhaps, pre-2007 capitalization has huffed and puffed it’s way out.  Moreover, privatization only occurs in the context of law and law means government. So the private sector is just one of several forms of government. Those ideologically committed to the government of privatization usually are indifferent to the needs and aspirations of the highly variegated forms of American life. Big government is not the problem. Oppressive government is.  And laws protecting the private sector and corporate power while preventing the little guys from effecting change can be as tyrannical as any despotic regime.  As Paul Krugman puts it: “[S]ometimes the private sector is the problem, and government is the solution.”

Can’t we try dropping the jejune dichotomy between government and the good guys and see if we can solve our problems fairly and with the common good in mind? Let’s switch to what should have been our ethos all along–democratic capitalism–where the reflective majority will prevails over those whose self-interest prevents them from seeing beyond the narrow corridors of their own insulated hermitages.

It’s official: the 111th Associate Justice of the United States Supreme Court has now been sworn in. I am neither female nor Latino; yet I’m brimming with pride. Perhaps, since I am neither female nor latino, “delight” is more appropriate. NO! I might not be female or latino, but that doesn’t prevent me from being proud of  another human being whose ethnicity and gender has disadvantaged her in this great egalitarian society and has gone on to beat the odds.   The day is finally here. Finally, a Hispanic on the Court—another minority–and the third woman.  I look forward to teaching her judicial opinions.

As reported in the NY Times: “The Senate Judiciary Committee voted, 13 to 6, on Tuesday to endorse the Supreme Court nomination of Judge Sonia Sotomayor, easing her path to likely confirmation as the first Hispanic member of the tribunal.”  The question now is just how many total votes Judge Sotomayor will receive. Senator Lindsay Graham was the only Republican on the committee to vote in favor of Judge Sotomayor. Why? Is it plausible to believe that she wouldn’t get a yes vote from other Republicans in a fair and impartial procedure.  Judges, of course, must be fair and impartial, but Senators Grassley and Hatch do not. What a system?

Will these “fair and impartial” senators and their kin suffer electorally in the next election?  Should they?

The Senate confirmation hearings generated virtually no significant information about a nominee that would help the American people learn about the judicial philosophy of a future Supreme Court Justice.  The explicit language and implicit interpretive norms embedded in that language set up enormous roadblocks for getting a sense of how nominees approach the Constitution and whether the nominees are committed to grand constitutional theories, specific conceptions of constitutional interpretive methodology, or the nature of the role of the courts in American constitutional jurisprudence. For example, each of the last three nominees indicated that they were committed to the “rule of law” without specifying in any detail what that means.  Then Judge Roberts committed himself to the Supreme Court version of umpire Bill Klem by insisting the Chief Justice’s job was to call ball and strikes according to the rules of baseball, not altering those rules in any manner at all. Judge Sotomayor reassured us that she is committed to “fidelity to law” without explaining what that means either generally or in specific cases.  And the senators, oh the senators! They kept throwing around such locutions as “judicial activism,” “interpreting (or applying) law, not making it,” “legislating from the bench,” “the law’s plain meaning,” and other forms of discourse that set up a wall between the Constitution and the public understanding of the document’s complexity and nuances.  Of course, we understand the political reasons for doing this, especially after the disastrous Bork hearings when a genuine dialogue occurred, but that doesn’t excuse the perversion of a process that is essential for judicial accountability and the future of American constitutionalism.

It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong.  No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings:

You know, I — people call me simple, because I really believe this document is the genesis of our success as a country. And I believe these words are plainly written, and I believe we ignore them at our peril. And my hope is that the Supreme Court will re-look at the intent of our founders and the 10th Amendment, where they guaranteed that everything that wasn’t spelled out specifically for the Congress to do was explicitly reserved to the states and to the people. To do less than that undermines our future.

But that’s not what the Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This doesn’t come close to saying that “everything that wasn’t spelled out specifically for Congress to do was explicitly reserved to the states and to the people.” This might be what Senator Coburn wants the Tenth amendment to say, but that’s just judicial activism, legislating from the bench, making, not interpreting law. Indeed, Senator Coburn’s interpretation of the Tenth Amendment is closer to a similar, but much stronger “states’ rights” provision in the Articles of Confederation, the first American charter replaced by the United States Constitution. Here’s the relevant provision “Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (Emphasis added) There’s no “expressly,” “spelled out specifically,” or “explicitly reserved to the states and to the people” in the Tenth amendment. If Senator Coburn is going to object to going beyond the plain words of the Constitution, shouldn’t he be required to know what those words are?

When I was a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Last night on the Chris Mathews’ Hardball  a discussion arose with Senator Orrin hatch about the possibility that President Obama’s health care program will reject the Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion.  Where’s the equal protection here? Two pregnant woman exercise their reproductive rights, one by choosing to terminate the pregnancy, the other by not. How can any reasonably conception of equality sanction such treatment? Lindsay Graham chimed in during the hearing by bristling at the notion that his tax dollars should be used to fund abortion.  But why should my tax dollars be used to fund childbirth? Perhaps I’m worried about overpopulation or simply have libertarian tendencies against governmental support for such private conduct?  In general the government can favor one policy over the other, but does equality sanction permitting such partiality when reproductive rights are concerned?  The Court has said yes.  But this is not a question of case law.  Rather, it’s a question of Republican consistency. Can two pregnant women in relevantly similar circumstances be treated in such a dissimilar manner? How the Republicans’ conception of equal protection can sanction such distinction? Or better yet how can the rule of law permit such a political choice?

The Republicans on the Senate Judiciary Committee are trumpeting the rule of law, equal protection under the law, and treating litigants in a similar manner. Yet, regarding the grotesque Hyde Amendment suddenly disparate treatment is permissible. The Republicans need to explain why the causes they favor need not be subject to the rule of law, but Democratic causes, well that’s another matter.

Hopefully, the Republicans member of the Senate Judiciary Committee will think twice before inconsistently throwing around “equal protection” and “rule of law” when these terms apply to Judge Sonia Sotomayor’s judicial decisions.

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience or appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.

A deliberative democracy should inter alia address a diverse range of views to take seriously, critically evaluate, reject or accept as the circumstances indicate. Ghettoizing particular perspectives to that they are insulated from serious confrontation with other perspectives is anathema to deliberative democracy. While, American political argument thrives within the parameters of particular political paradigms, cross-paradigm argument is brutal, hostile, and blatantly dishonest.  Consider the posturing of the Rush Limbaughs and Bill O’Reillys in the media, and the Dick Cheneys in politics. (Yes, the Left has its share also.). Until fair, honest, and compassionate political attitudes define our political conversations, deliberative democracy will remain illusory and though we will speak and write volumes little consensus building will be possble.