When senators won’t take your call

This nauseating NYT profile of David Koch does have one perhaps unintentionally revealing passage. The very rich personage in this puff piece is quoted here referring to a prank call made last month by a Koch impersonator to the governor of Wisconsin, a conversation in which Scott Walker earnestly reassured the fake-billionaire that he could be counted on to crush the public unions.

Mr. Koch joked that the call could cause him problems. “I was thinking to myself, ‘My God, if I called up a senator or a congressman to discuss something with them, and they heard ‘David Koch is on the line,’ they’d immediately say, ‘That’s that fraud again — tell him to get lost!’ ” he said with a laugh.

I wonder how many non-rich Americans presume that, in the natural course of things, they can simply ring up a senator in Washington to “discuss something with them”? This is the explanation for the Supreme Court’s rather curious insistence that giving money to political causes has to be viewed as a form of free speech. For without it, how can you be sure that your phone call to a senator will even be taken?

Update The new danger that his calls might be ignored seems to be an obsession now for David Koch. He said something very similar in a Boston Globe interview: the other day:

"Right now, if I make a call to some important person and say my name is David Koch, they’re probably going to reject the call, thinking I’m another fraudster."

I wonder which people qualify as unimportant?

crossposted at unbossed.com

SCOTUS eviscerates campaign finance regulations: What to do about it

No doubt by now you’ve heard that the Supreme Court’s “conservatives” took an axe to regulations that for a century have limited corporate spending on political campaigns. By the slimmest of majorities, SCOTUS ruled today that corporations and unions may spend without limit on political issues and in support of candidates because they have free speech rights under the 1st Amendment just as any actual human being.

The ruling threatens to open floodgates to spending on a massive scale by corporations seeking to advance their own interests against the interests of, well, actual human beings. It should also do nicely to enhance the public’s cynicism about corporate influence over legislators (and elective judges). By itself the mere potential for uncontrolled corporate spending will tend to distort political calculations and legislative/judicial decisions – and the public’s perception of those things. The impact could be most severe in congressional elections where corporate spending or its potential will be most likely to overwhelm actual humans’ spending.

National Republicans are overjoyed at the ruling because they gladly and loudly shill for corporate interests. Democrats are talking about trying to limit the damage caused by this cataclysmic change to campaign financing by enacting new legislation. But what kind? Lyle Denniston expresses skepticism that Congress will be able to find any constitutional and practical solution to this crisis.

To my mind, however, the first step is pretty obvious. Congress should prohibit any corporation from engaging in this new political spending if it has any non-American shareholders or owners. Because after all, foreigners have no 1st Amendment protections.

The “logic” behind the SCOTUS ruling is that a corporation composed of individuals ought to possess the legal attributes of its individual owners. Thus the same logic ought to require that partial foreign ownership renders the corporation a foreign body at least in part. The foreign parts of a corporation have no constitutional right to free speech. And since there is no practical way to distinguish the legal rights of the parts from the rights of the whole corporation (that presumption underpins the SCOTUS ruling), then it’s impossible to give American constitutional rights to part of a corporation but withhold them from another part.

Hence it is constitutionally permissible to deny a partly foreign-owned corporation from spending on political speech within the United States. Congress should act to do so immediately.

Why make this a priority? There can’t be many large corporations that are entirely owned by American persons. Indeed large corporations would not find it easy to determine the legal status of their actual human owners (that’s the rotten core of the Supreme Court’s insistence on treating corporations as if they were homunculi, or composite persons). And it should be obvious that the last trade-off that corporations will want to make, in order to be able to interfere directly in political contests, is to drive away foreign investors.

In short, I think the threatened cataclysm to the country’s political system can be contained rather nicely in this way. With such legislation it may turn out, in fact, that the Supreme Court’s “conservatives” have mainly empowered labor unions to spend freely while doing relatively little to bolster the (already great) clout of corporations.

Update:

In the oral (re-)argument of this case before the Supreme Court on September 9, 2009 (PDF), the question of foreign ownership was brought up immediately by Justice Ginsburg (beginning on page 3 of the transcript). Ted Olson, representing Citizens United, conceded that Congress might be able to prohibit foreign-owned corporations (however defined) from engaging in this kind of unlimited electoral spending. Olson argued that Congress would however need to show that it has a compelling governmental interest in acting to prohibit that.

Clearly Olson was discomfited by the line of questioning. Justice Alito rushed to his assistance by asking whether foreign-owned media corporations (cough! Fox News) have less freedom of speech than American-owned ones. Olson was happy for the help.

The deliberate conflation of news corporations with corporations generally was a central pillar of the "conservatives" attempt to justify handing 1st Amendment protection to any and all corporations. Pushed to one side was the basic fact that the Constitution specifically guarantees freedom of the press, whereas it has nothing to say about either the rights or supposed "personhood" of corporations.

Antonin Scalia justifies torture, again

It nearly beggars belief that we have a Supreme Court justice who'd seek to justify torture, but that is exactly what Antonin Scalia did in a BBC interview aired yesterday.

"Original Intent" Scalia doesn't seem to care that George Washington took an unequivocal stance against torturing captured prisoners during the young Republic's struggle for survival, at a time when the enemy were abusing American captives right and left. No more does Scalia give a damn about the constitutional prohibition of "cruel and unusual punishments". That, he told the BBC, applies to people only once they've been convicted of a crime. According to Scalia, if you're awaiting trial (or just plain hoping to get a trial someday), then maybe anything goes.

BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.

Yes siree, in Scalia's bizarro-world you gain the protection of law by right of being convicted. The Fifth Amendment's guarantee of due process? That little matter of the presumption of innocence, the very foundation of our system of criminal law? Pfffttt.

Actually, come to mention it, what we've got is not so much a legal "system" as a Nielsen profile of Supreme Court justices' TV viewing habits. And you can't rule out the possibility that this season's plot twists will need to involve some torture, just a wee tad.

SCALIA: Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth...

Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

Or, for that matter, any number of potential scenarios: "Have these punks been racing hot-rods lately?" "Let's see if the handyman knows who the burglers are." "What'cha say we beat the crap out of that bum over there?" In fact it's far from clear that any such confessions, in Scalia's world, would be treated as poisonous fruit.

If only the courts are willing to apply Scalia's "ends justify the means test" (definitively enunciated in Jack Bauer v. The World), they'll be able to justify almost any governmental activities. Just so long as officials don't call the torture "punishment", they're in the clear.

Presumably that explains why Scalia sees no need to take too seriously the federal torture statute, or international treaties. Geneva Conventions? Pfffttt. The UN convention on torture and cruel, inhuman or degrading treatment? Double pfffttt.

You'll be interested to learn that, notwithstanding his embrace of torture, there are indeed limits to what Antonin Scalia will tolerate. The practice of televising court proceedings, he told the BBC, is "sick".