Friday, January 29, 2010

Citizens United v. Federal Election Commission (558 U. S. ____ (2010))

"And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice."
- Joseph Story, Commentaries on the Constitution, 1833

The Case

The case challenged an federal law (2 U. S. C. §441b of Bipartisan Campaign Reform Act of 2002), prohibiting corporations and unions from speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.

During the 2008 presidential campaign non-profit corporation Citizens United wanted to release a documentary critical of then-Senator Hillary Clinton. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission(FEC) summary judgment.

In it’s January 21, 2010 ruling, the Supreme Court concluded that since it could not resolve this issue alone “without chilling political speech” it was also necessary to consider, and ultimately overrule, the precedent established in Austin v. Michigan Chamber of Commerce (494 U. S. 652) that political speech may be banned based on the speaker’s corporate identity.

The Majority Decision

“Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section203, but also 2 U. S. C. 441b’s prohibition on the use of corporate treasury funds for express advocacy.” (citation omitted). Section 441b’s restrictions on corporate independent expenditures are therefore invalid and cannot be applied to Hillary…”

Deciding that “Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech” the decision concluded: “… The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” (citation omitted)

So, disregarding partial concurrences and partial dissents, here’s how the 5 – 4 decision was made:
KENNEDY delivered the opinion, in which ROBERTS, SCALIA, ALITO and THOMAS concurred. STEVENS filed a dissenting (in part) opinion, in which GINSBURG, BREYER, and SOTOMAYOR joined.

Scalia’s Concurring Opinion

Scalia’s 8-page concurring opinion (page 79 - 87) is mostly a snarky exercise in rebutting Stevens’ dissent, saying that while the purports to show that “today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment.”

Further, “the dissent embarks on a detailed exploration of the Framers’ views about the 'role of corporations in society.' (citation ommitted). The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted—not, as the dissent suggests, as a freestanding substitute for that text…. Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them?” (page 79 - 80)

The Dissenting Opinion

The dissent seems pretty straightforward: “The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for profit corporations and unions to decide this case.
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United maybe required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” (page 88 – 89).

Stevens also takes issue with the majority opinion’s judicial activism in ignoring stare decisis (precedent) and overruling Austin when Citizens United didn’t even ask it to do so. “In fact, no one has argued to us that Austin’s rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the businesscommunity, organized labor, and the nonprofit sector, together with more than half of the States, urge that we preserve Austin.” (citations omitted) (page 108 – 109).

My Opinion

My favorite part of the 57-page majority opinion were these gems:
“References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.” (page 40); and
“That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.” (page 44).

So, not even addressing the threat that foreign corporations can now use their money to influence U.S. election outcomes, the decision seems to me to be not merely a stealthy extension of the rights of corporations but (as night follows day) a giant step towards fascism in America. Too bad.

Monday, January 25, 2010

Happy Anniversary

“Some time when the river is ice ask me mistakes I have made. Ask me whether what I have done is my life. Others have come in their slow way into my thought, and some have tried to help or to hurt: ask me what difference their strongest love or hate has made.”
- William Stafford

Talk about a glass half full. He asks the question, but does not answer it. Has the strongest love or hate has made a difference in his life? If so, was said difference positive or negative?

And what about us on the 23rd anniversary of my marriage to my one true love? We’ll have dinner at the same place we dinned after our courthouse marriage – a local restaurant within a mile of home. Just us, this week. That wedding dinner included your brand-new stepdaughter of thirteen going on 35, an adolescent with the new-found independence of a latch key child. Stepfather.

These days, we're sharing the frustrations of growing old together, watching our capabilities and cognizance dwindle with our bodily strength and beauty. It’s a bitch to get old, but we have the consolation of doing it together. Thanks for a ride twice as scary in the crazy clown car, stuffed with all the baggage of a quarter century. Thanks for the moral support, the mutual growth, the hard work we both put in

Thanks for all the parenting, the COPD, the depression, and the understanding. Thanks even for the MIL whose own decline has overshadowed our long marriage; and has sapped our strength and diminished the resources left for us to care for one another. Boy, do you guys get on my nerves sometimes.

Thanks for the joy, the accomplishment. We’re learning together how to make our lives progressive – building on the lengthening tail of all our life experiences and becoming better for it despite our mutual decline. Thanks for the kitties, the iPod, the neck surgery. Thanks for the sex, and the love, and the support, and the compassion.

We’ll go to dinner a night or 2 before our actual anniversary. Close enough and mildly more convenient. Here’s my toast:. Let’s keep this circus show of a marriage on the road another quarter century. At some point, I’ll get my own bedroom closet.

I love you. It’s the love that counts. Of all the mistakes you have made, and I have made, and we have made, what we have done is not our lives. What we have done together is the difference the strongest love can make: we’re still alive and we’re still in love. Thanks again.

Saturday, January 23, 2010

Winter Harvest

"Once more I am the silent one who came out of the distance wrapped in cold rain and bells: I owe to earth's pure death the will to sprout."
- Pablo Neruda (1904 - 1973) Winter Garden

The week of recent rains have brought both good and bad news to the Veggie Garden. The white flies are gone from the cauliflower, although you can see the pathetic stunted purple cauliflower. The one to the left was planted at the same time, but for some reason, some pest attacked the one on the right, prompting it to desperately re-grow and sprout. Nothing like the fear of death to make plants come alive.

Hungry rabbits knocked over the wire screen enclosing some lovely purple kale. All that’s left are the skeletons. I’ve replaced the screen, and if the plants are brave enough and have the will to sprout, they might yet live. I'm not a big fan of kale anyway, but it was pretty to look at. I don't care for any leafy greens you have to cook first. Kale gives me flashbacks to the slimy canned spinach I was forced to eat when I was a kid.

But the good news is the broccoli. The enclosure it lives in, built with love and care by T, protects it from all predators larger than the diameter of the chicken wire. Between the insects and the squirrels and rabbits, it's been a struggle to grow veggies the past few years. Perhaps all the recent rain will revitalize the plants and strengthen them against attacks by predators who come silently, presumably at night, to munch.

Here is part of the harvest. I gave broccoli away to others as I strolled through the Garden after a meeting this morning. The taste of real broccoli, immediately after it’s picked, compares to store-bought broccoli about the way Aretha Franklin’s singing compares to mine.

Dinner tonight will include fresh broccoli slaw, and some yummy organic pork sauteed with roasted tomatoes and some of my canned caramelized onions and garlic. Eat your hearts out rabbits!

Tuesday, January 19, 2010


“That blessed mood
In which the burden of the mystery,
In which the heavy and weary weight
Of all this unintelligible world,
Is lightened.”
- William Wordsworth


I managed to cut some herbs before the rains came. Forecasters are saying that by the time the third storm moves through So Cal by the end of this wet week, we could get up to 20 inches of rain. So, you might be asking yourself, what’s a little winter rain? In a place where we’ve had so little rain for so long, we tend to over-react when it rains for more than a few hours at a time. Monday’s storm caused Disneyland to close early for goodness sake! Besides, generally speaking, Southern Californians collective skill level in driving in the rain is approximately that of a bus full of rodeo clowns trying to perform brain surgery while the bus tries to outrun the pursuing border patrol. Besides, I’m not even sure where the windshield wiper control is on my five-year old car.

I remember once when I worked in the Ivory Towers of Academia, the entire university closed early due to rain. I had to stay behind because I was in a car pool driven that day by a guy whose job became more critical in bad weather. I answered the phone and spoke to a contractor in Washington DC who thought I was kidding when I told him the entire university was closed due to rain.

Now, the real reason the university let us go home early was that storm drains – unused for years and clogged with debris – were overwhelmed and flooding was endemic; and that the university had thousands of workers who would only make the evening commute more hellacious if we waited until winter’s early darkness to hit the roads.

But I didn’t mention this to the caller. Instead, I explained that the only reason I picked up the phone was that I was still waiting for the cab I had called to pick me up at the door of my building and drive me to my car in the parking lot a block away. I said nobody here owned umbrellas because it never rained, and that we all wore clothing was “dry clean only”, and that I’d just had my hair done and didn’t want to get it wet.

This, of course, confirmed all his latent prejudices about us vain and shallow phonies living in the shadow of Hollywood. It also got me out of doing any serious business with the jerk, so it was a win-win.

Saturday, January 09, 2010

Sneaky Weather

“I come from a land in the sun-bright deep,
Where golden gardens glow,
Where the winds of the north, becalmed in sleep,
Their conch-shells never blow.”
- Thomas Moore, Song of a Hyperborean

The weather has turned warm and sunny again. Perversely, it always does this to tempt me to prune too soon. In a logic almost illogical enough to be human, once pruned, branches want to start growing to replace what has been lost. Silly branches.

Once the tender new growth begins to flourish, Winter comes back to remind me who’s really in charge of the back yard. Tender young stems and tiny new leaves are killed by frost, their dead blackened tips waving reproachfully; mocking my clumsy gardening efforts. So, I’m not going to be a patsy to Winter this year. The other day, I pruned the white wisteria because it hardly matters to this rampant weed what weather challenges, or my pruning shears dish out. The wisteria seems to make even dumber decisions about growing than I do about pruning. For no reason apparent to my eye, some thick wisteria branches will die while other gangly strait shoots will grab all the energy and produce new growth in the wrong place.

But apart from the wisteria, everybody else can just look like crap until March. No more pruning. I doubt if the flowering quince branches now showing off in January will make it without some frost damage. But I dare not cut back the growth to make it a bit more compact. Tried that with the hydrangea (may it rest in peace) one year about this time, and then one rare killing frost took the entire plant out overnight. It seemed mean of nature to punish the hydrangea for my sins, but at least I learned from its untimely death the dangers of premature pruning.

Perhaps my potted plants are like rock stars. They can’t manage to just live a glamorous life. They have to try to go out in some grand gesture that befits their splendor. They could get old like a regular person, eating prunes in a bowl, and wrapping themselves up in a metaphorical old plaid flannel bathrobe, and sitting by the fire, and dying in their sleep. But if you’re a rock star, you’re probably going to die in a fiery crash of your Lamborghini - missing a curve and diving off a cliff in Monte Carlo. Or, maybe you’ll die huddled in a tent on an icy mountain in Antarctica with your faithful Sherpa guide, or whoever it is that acts as a local guide in Antarctica, victims of some unlikely and unseasonable weather.

Or, like my potted basil, burned black by frost and looking for all the world like you died of an overdose of prescription medication while sitting on the toilet. Not that my basil took drugs, you understand, but that it died before its time, and a way somewhat more notable than tripping on a roller skate and falling down the basement stairs, and being found a week later by the underpaid cleaning crew.

Monday, January 04, 2010

Hello 2010 and Lotus

“When the lotus flowers bloom in summer, they close at night and open in the morning. Yun used to put some tea leaves in a little silk bag and place it in the centre of the flower at night. We would take it out the next morning, and make tea with spring water, which would then have a very delicate flavour.”
Shen Fu, Six Chapters of a Floating Life

The Lotus is usually considered the flower of summer, a blossom of Nelumbonaceae is usually the first thing you picture when you think of a lotus: Nelumbo lutea or Wild American lotus. The Native American Lotus is also known as the Yellow Lotus or Water-chinquapin. I’m one of the places in California where a lotus should survive, though I confess, despite several tries, all I can grow is water lilies, Nymphaea.

But I wish to distinguish these from the lotus of Chinese myth and legends which is probably the Asiatic Lotus, Nelumbo nucifera. The Asiatic Lotus is also identified as the blue lotus, Indian Lotus or Sacred Lotus. The Chinese recognize lotus as the flower of July.

The lotus is more than a flower. It is seed and root. Many cultures associate the 3-stage transformation as an emblem of past, present and future. Lotus can represent change, and can be the emblem of purity: it resurrects from the muddy black root to produce a flower so pure and lovely that it represents truth.

But pictured here are the frost killed lotus blossoms of last summer flowers, with their heads hanging down like so many bells to reflect their seeds in the water. This picture taken on New Year’s Eve, 2009 at Huntington Gardens’ Chinese Garden of Flowering Fragrence in Pasadena, California.

Shen Fu illustrates how practical Chinese peasants appreciated the lotus to be one of the most useful of all ornamental plants. Some contemporary herbals insist the lotus root is poison ( (Jeanne Rose’s Herbal, Herbs & Things (1972). However, Chinese people know the lotus root is sweet and can be eaten as fruit, salad, or as base for soup. Nutritional contributions of the lotus root include iron, vitamins B & C and efficacy as a febrifuge.

Shen Fu’s floating world referred to special places for geisha to idealize woman and remain somehow pure. Yet he includes his recipe for growing lotus flowers that “will be only the size of a wine cup, while the leaves will be about the size of a bowl, very cute and beautiful to look at.” Presumably, such flowers would adorn suitably-sized bonsai gardens or miniature landscapes with mountain-shaped stone.

To my north, I happen upon these bowing lotus seeds, nodding above the surface of the pond, preparing to keep their promise, to begin their dignified, almost smug, subterranean journey that will bring Spring’s blossoms. The picture was taken in Pasadena California on the eve of the New Year's Day Rose Parade. Sidewalks blossomed with people staking out either side of Colorado Avenue, snug in their lawn chairs and quilted coats. For one night a year, this street's sidewalks are inhabited - from one year into the next. This night, the population is not exactly the street people one typically finds in urban winter landscapes.

A few days later I traveled in the other direction. To my south, I see poverty and blight in my usually invisible neighbors. The border crossing is about 20 miles from my house. The streets are alive with life, color, smells of chorizo, taco stands, hot peppers and steaming corn tortillas. We went to buy prescription heart medication for an uninsured person at a cost less than the $10 co-pay I pay for mine.

This is the Mexican side's view at the border crossing between Tecate, Mexico, and Tecate, California. If not precisely impregnable, it clearly conveys that poor people are no longer welcome to California. They once were. The colors of the dry winter landscape are parched like the stalks of the lotus, if somewhat lacking in somber grace, these two pictures mark the stark border between the rich and the poor.

Here in rural San Diego, I stand at the threshold separating Winter from Spring. I stand at the beginning of the last year of the first decade of the new millennium. Here I pause. Whether I use lotus as a myth, a food or medicine, or as an inspiration, I want to find in the lotus an appreciation of all the stages of life, not merely youth. I want to find for rich and for poor, that we pay attention this year to the public mood and continue to hope for tolerance and compassion instead of hate and fear. My hope for 2010 is that I wait a bit longer before starting on about how this year has been a rough one for me. The year feels new, pure and ready to promise renewal.

Friday, January 01, 2010

Goodbye 2009

“With immediacy and intensity, smell activates memory, allowing our minds to travel freely in time.”
- Tom Robbins, Jitterbug Perfume

Went outside yesterday to say goodbye to the garden in winter. It’s so messy that at least it reminds me how industriously I once spent afternoons, and how swiftly nature moves to erase traces of the gardener. I pruned the wisteria alba on the leaning arbor. I managed to clean up the poorly swept patio area of an entire trash-can of pine needles, fallen leaves and other deadfall. The guys who come by every other Friday to blow away such detritus manage to simply blow it into corners where it accumulates – the closest I get to snow drifts in So Cal. (The picture is at the Chinese Garden in Huntington Gardens, Pasadena, CA. Taken on 12/31/09)

So, raking, then light watering in the last of the veggie garden and awoke the smells of the last survivors as well as those of the slow decay and return to dust that this season bring. There are no ants working industriously, no grasshoppers fiddling indolently, no bees survive to sip water from the shallow basins. Just me and the smells of a slumbering garden. Me and the pink flamingo, in its vanity managing to color-coordinate with the final mums.