Thomas Mitchell

What would 'Pitchfork' do?

Since the 5-4 Supreme Court ruling in Citizens United v. Federal Election Commission restored the rights of corporations and unions to freely spend money on political campaigns and issues, there has been a persistent caterwauling about how the radical, conservative court overturned a century of law and legal precedents, turning back the hands of time to the benighted age of robber barons, sweat shops and billowing smokestacks.

The first federal law to restrict the ability of companies to contribute to political candidates was the Tillman Act of 1907.

The New York Times editorial of Jan. 21 sounded this theme of tried-and-true, long-established and revered precedence: "With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court's conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding."

In his dissent in Citizens United, Justice John Paul Stevens even quoted Republican President Theodore Roosevelt's 1905 State of the Union speech, in which he declared: "All contributions by corporations to any political committee or for any political purpose should be forbidden by law ... an effective method of stopping the evils aimed at in corrupt practices acts."

But the name on the resulting law is Tillman, not Roosevelt.

Democratic Sen. Benjamin "Pitchfork Ben" Tillman of South Carolina, that is -- the leader of that Ku Klux Klan-style lynch mob known as the "Red Shirts," the man who declared, "The Negro must remain subordinated or be exterminated" in order to "keep the white race at the top of the heap."

Maybe it wasn't Roosevelt's motive, but Tillman, and who knows how many others, pressed the ban on corporate free speech because he feared the rise of blacks employed by Northern companies. It was a way to squelch speech he feared.

Justice Clarence Thomas pointed this out in remarks delivered during a speech at Stetson University College of Law in Gulfport, Fla., shortly after President Obama's State of the Union speech, which Thomas refused to attend.

A student asked Justice Thomas about Obama's public chiding of the court. The president said: "With all due deference to the separation of powers, last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. Well, I don't think American elections should be bankrolled by America's most powerful interests."

Thomas replied to the questioner, "First of all, remember most of the regulation of corporations started with the Tillman Act. Go back and read why Tillman introduced that legislation to regulate corporations. ... 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. So we don't raise this to the plane of some sort of beatific action.

"But that aside, I've taken the position that the court adopted with respect to how we associate. If 10 of you got together and decided to speak just as a group, you say you have a First Amendment right to speak and a First Amendment right of association ...

"I find it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company, who were exempted by statute. So then it becomes a statutory right, not a constitutional right."

At a whim, Congress can revoke a statutory right. Are the Times and Post willing to depend on Congress for their free press rights?

It is not the corrupting influence of big money. It is not some noble stand for the sake of one man, one vote. The motive is always: I don't want you to hear something with which I disagree.

One can as easily say the liberal editorial pages and the president are standing up for the century-old tradition of Jim Crow, Plessy v. Ferguson, lynching and cross burning.

They are siding with a man who wrote, "I have come to doubt that the masses of the people have sense enough to govern themselves."

Whether your prejudice is race hatred or wealth hatred, whether it is a century old or a couple of millennia old, the result is an abridgement of the right of free speech. Why is one seen as shameful but the other laudatory?

Both are anathema to the First Amendment.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and free speech. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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Comments

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1. patrick Feb. 15, 2010 | 9:07 a.m. Report Abuse

   Still:
   
   I'm not sure exactly what you mean, but I believe the point you are trying to make, and correct me if I'm wrong here, is that since the Constitution doesn't expressly provide for abortion, then...what? You can't get abortions?
   
   I'm sure this isn't really what your saying, because the Constitution doesn't provide for candy bars either, and I'm sure you don't believe candy bars are "unconstitutional".
   
   But, until you clarify I will say this; like "corporations", abortion has been permitted based on two things.
   
   First, and in furtherance of my position here, a "fetus" is NOT a "life in being" and therefore has NO standing under the Constitution. See, in order to have some "right" pursuant to the Constitution, you have to be one of the entities entitled to Constitutional protection and that means "a person, a citizen, or people". Since a fetus is not any of these, it gets no protection pursuant to the Constitution.
   
   Secondly, even if someone has standing (which is always required under the Constitution) to object to a law that might allow abortion, or preclude abortions, a balancing of an individuals fundamental rights under the Constitution (life of the mother in this case) must be balanced against whatever "rights" the opponent may have.
   
   So, I will await your clarification on the issue, but otherwise, here you go...yo.

2. patrick Feb. 14, 2010 | 7:46 p.m. Report Abuse

   jcm:
   
   The intent of the guys that wrote the Constitution is obvious; if they wanted corporations to have rights subject to being recognized in this country, they would have included corporations like they did with people, persons, and citizens.
   
   See, the Constitution recognizes the rights of those entities, but no where, does it even mention corporations, a more clear expression of the founders intent could hardly be imagined.
   
   See, the Constitution doesn't recognize the rights of enemy combatants either. And even though enemy combatants ARE people, and persons, the republican party has argued that enemy combatants have no rights because the Constitution doesn't mention them and therefore offers them no protections.
   
   Its really easy jcm; the Constitution was drafted to recognize certain rights in certain people and limit the right of Congress and the states to act against those rights.
   
   Since corporations were never intended to have any "rights" the guys who wrote the Constitution never would have even thought to include phrases like "Congress shall make no law EXCEPT when it comes to corporations" it would have seemed the ultimate in ridiculous for guys who wrote a document which protects PEOPLE to write some superfluous language about corporations when corporations were never intended to have any protections and no one could have imagined a day when an activist Supreme Court would have "discovered" that corporations actually have "rights".
   
   There is no need to amend a document which is clear and excludes recognition of any "rights" of a non-person; its self evident.

3. Alcohol Feb. 14, 2010 | 6:04 p.m. Report Abuse

   I don't see what the big deal is pertaining to this ruling.
   
   Corporations have/had always found loopholes where they could fund money. They are called loopholes, PACS and lobbyists.
   
   $2 Billion dollars was spent on the last election.
   
   All this does is bring it out in the open. We will now exactly where that money comes from, because they have to file reports.
   
   The classic one is the Health Care Debate. Approximately $300 million was spent by the Health and Insurance Industry. Well, the opposition couldn't.
   
   So, to me this evens the score because now, they all can spend as much money as they want.
   
   Well, they were already doing it in the 1st place. Now it will be out in the open.

4. patrick Feb. 14, 2010 | 5:25 p.m. Report Abuse

   jcm:
   
   It is very simple, the Constitution was NEVER intended to protect the "rights" of corporations.
   
   Since there was NEVER any intention that its prescriptions be used to protect corporations, corporations are not entitled to the protections against Congressional actions afforded to persons, people, or citizens.
   
   Kind of like enemy combatants don't get any.
   
   What COULD be more plain than that?

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