Friday, March 10, 2023

Justice Stevens' Dissent Shreds Citizens United Majority Opinion


Most grownups 30 years or older know that money is power and that “power corrupts and absolute power corrupts absolutely.” 
In 2010, the Supreme Court of the United States, or SCOTUS for short, made two things easier: (1) corruption in politics and (2) for corporations to more effectively control the outcomes of state and federal elections. Of course, they would never admit such goals.

 SCOTUS accomplished this when they decided the case Citizens United v. Federal Election Commission (FEC). The majority opinion naively dismissed concerns over corruption and distortion of the political process from excessive contributions and campaign expenditures.
Former Justice Sandra Day O’Connor commented in the related McConnell case that, “Money, like water, will always find an outlet” (Urofsky, 2020, 189).
For over 100 years our U.S. Congress has struggled to minimize corruption by making various campaign finance laws. The purpose of these laws is to prevent politicians from corruptly voting for laws because some billionaire or some corporation donated a huge amount of money to that politician and/or their campaign. How much money does the trick for influencing the vote of a politician? It could be $100,000 or a million or more. And politicians track all contributions because they need to know who it’s most important to pay attention to; and, after one election they’ll need more money for re-election.
There is nothing new about the problem of influence peddling, pay to play, or sheer bribery!

Our Congress has made many efforts at campaign finance reform. But because money is so powerful and elections so expensive, creating effective laws are exceedingly difficult. As soon as such laws are passed, powerful groups of politicians and business leaders file lawsuits to hopefully overturn or effectively disable the campaign finance laws.
I have read and studied the Citizens United v. FEC majority opinion written by Justice Anthony Kennedy; it was about 50 pages long. I have read and studied the almost 100 page dissent by Justice John Paul Stevens. Superficially both the majority opinion and the dissent gave me clear and thoughtful impressions; however, their conclusions were completely opposite. Eventually, I realized that Kennedy and Stevens were clearly writing about an extremely important but complex, hard to handle, topic. Justice Kennedy glossed over many important details and dismissively ignored important campaign corruption problems; whereas, Justice Stevens refuted Kennedy’s majority opinion point by point, providing all the details necessary to grasp the full extent of the problems to be addressed. Stevens’ dissent was clearly written, amply covered the historical background and convincingly shred the majority opinion. 
As you will notice, below, the four campaign finance cases discussed are noteworthy for producing much confusion in the justices and for split court decisions. The Citizen United district court judges each wrote separate opinions, and these were what came on appeal to SCOTUS.

I want you to know the sources of my information. I want you to have the best knowledge, the most solid facts for becoming a more powerful citizen and voter. Here are four books from which come most of facts you’ll read in this blog. My opinions and conclusions are consistent with these four books and also benefit from many additional sources. 
(1) If you only read one of the four books, read: Our Damaged Democracy: We The People Must Act, by Joseph A. Califano, Jr. (2018). Very readable. Califano, an attorney, has spent 30 years in Washington DC government operations: serving at the Pentagon; on the White Hose staff; in the Cabinet as U.S. Secretary of Health, Education, and Welfare; as a Wall Street attorney; as a member of the board of 15 public companies and not-for-profit institutions. And he has authored 14 books. I completely agree with one of the book’s reviewers who wrote that the book is an “[E]lightened, entertaining, and rigorously nonpartisan book.”
(2) If you want to read ALL the background which produced Citizens United v. FEC, read Melvin I. Urofsky’s 2020 book The Campaign Finance Cases: Buckley, McConnell, Citizens United, and McCutcheon. This has 187 pages of well-written but dense prose. Very authoritative. It has five appendices and other pages of useful lists of cases, etc. 
(3) If you want a fascinating, very readable, story of how the corporations went from being “artificial persons” to getting pretty close to actual personhood with a long list of various rights, read: Adam Winkler’s 2018 book We The Corporations: How American Businesses Won Their Civil Rights. From this book you will learn about:
“The transformation of the Fourteenth Amendment from a guarantee of equal rights for racial minorities into a tool for corporations to strike down business regulation, was the one of the first quantitative studies of the Supreme Court, conducted in 1912.”
That study discovered that less than 5% of 604 Fourteenth Amendment cases involved African Americans. There were 28 cases, and in nearly all of those 28 cases the racial minorities lost.
More than half of the 604 cases involved corporations successfully striking down regulations on business such as: minimum wage, child labor laws, and zoning laws.
(4) If your want to read a smaller and easy to read book, then get Thom Hartmann’s book, The Hidden History of the Supreme Court and The Betrayal of America (2019). There’s plenty of well-written drama. This will get you riled up and motivated to take action!
These are the four books which finally revealed the missing pieces by which I could acquire an overall understanding of the good, the bad, and the ugly of politics in government. Indeed, there are so many moving pieces, pieces hiding themselves, going in different directions and fighting one another. It is impossible to hold the full pattern of all these pieces in one’s mind at one time. 
But little by little, we can learn how the Presidency, Congress, and the Supreme Court actually work. Don’t be discouraged! Everyone can be a life long learner about something in government that matters to you; and this will make you proud.
Here, from Urofsky (2020, xi and xiii) are the worthy ideals or goals most can agree on:
“On the one hand, there is the desire [goal] to protect the integrity of the political system from the impact of large contributions from wealthy donors, unions, or corporations. On the other hand is the need [goal] to protect political speech, which is at the core of First Amendment protection” 
But, these goals are in conflict with each other.
Over the years, politicians and experts in government have labored towards these ideals and goals. The output of their work, including many SCOTUS majority and dissenting opinions show two themes:
“One is an appeal to the command of the First Amendment that Congress shall make no law abridging freedom of speech, especially political speech, which many scholars believe to be the core value protected by the Speech Clause.”
“The other is an appeal to facts and common sense, that while political speech is important, if we allow large sums of money to influence who can talk, who can gain access to candidates and officeholders, the political process will be corrupted and the speech will be meaningless.”
And also, these appeals [actually goals] are in conflict with each other.
Campaign financing reform is inherently difficult because of conflicting goals and conflicting appeals; any laws written will have contractions which then must be very carefully resolved by SCOTUS. No simple-minded "solutions" like Citizens United v. FED will work out!

Joseph Califano, in Our Damaged Democracy, writes that:
 “It’s time for the Supreme Court to scrap as mistaken and bad law the decision in Buckley v. Valeo, and its progeny like Citizens United. Giving money First Amendment rights has generated a steady rise in soft and hard corruption, fed a decline of trust in government, and made a mockery of the court’s one person, one vote decision” (Califano, 2018, page 154).
Califano severely criticizes the “[J]ustices of the Supreme Court who have made it impossible for the legislative branch even to consider reforms” (Califano, 2018, page 154).
When a candidate wins, “[T]he people who were his or her big bankrollers have special access unavailable to the individual voter. By blessing unlimited political contribution, the court has given special interest and single-issue individuals the power to buy that access and undermine the value of the individual citizen’s vote” (Califano, 2018, page 154).

Urofsky asserts that to understand Citizens United, one must start with studying Buckley v. Valeo (1976).
In Buckley the Court distinguished campaign contributions from campaign expenses (Urofsky, 2020, xiv). 
Campaign contributions constitute money given to candidates
• was not classified as being speech
• the amount given could be regulated, limited
Campaign expenses was money spent by candidates
• campaign expenditures constituted speech
• campaign expenses could not be regulated by government
When I first read this distinction I was befuddled. I read it several times but couldn’t grasp it as a valid distinction; the distinction seemed arbitrary, contrived for reasons not apparent. Urofsky wrote:
“[T]he Court’s reasoning is confusing.” Later in his discussion he wrote, “But although the Court apparently equated the expenditure of money by candidates with free expression, the lack of rigorous analysis in the opinion would cloud the issue of campaign finance reform for the next quarter century” (Urofsky, 2020, page 44).
According to Califano (2018, page 128): Buckley v. Valeo was a date “which will live in infamy” because SCOTUS gave money First Amendment rights. 
This is a little overstated, because the free speech First Amendment rights applied to campaign expenditures and not to campaign contributions. Additionally, campaign contributions as speech or a version of some other civil right goes back for many decades.
Buckley struck down three amendments to the Federal Election Campaign Act which put a limit on total spending by a candidate’s campaign. Buckley eliminated any limit on campaign expenditures. A candidate could receive lots of money from almost any source AND once it’s expended on his campaign then it’s not limited (this sounds somewhat puzzling to me, however).

In 2010 SCOTUS held that “[T]he free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations” (Wikipedia: An independent expenditure is a political campaign contribution that clearly advocates for the election or defeat of a clearly identified candidate that is not made in cooperation or coordination with a candidate. 
Citizens United also overruled Austin v. Michigan Chamber of Commerce and overruled some restrictions in McConnell v. FED.

“Our damaged democracy” isn’t going to fall off a cliff any time soon. Over the last 250 years there have been many crazy times, bad laws, nutty SCOTUS decisions, and corrupt presidents—and we survived, made a few reforms, and found new and different ways to swing from extreme to another. 
Politics, I’ve come to realize, is the most unwieldy (hard to carry or manage because of size, shape, etc.) of topics to understand and cope with. I guess it is because we’re dealing with masses of people. Whatever one looks at in politics, it’s kind of familiar but has weird causes and related issues, on and on, endlessly, it seems.
But this past year I’ve been hugely gratified in the study of American government. My appreciation for politicians of all parties has grown. I’m actually a lot less cynical because I’ve come to acknowledge the substantial efforts of many public figures whom I formerly disliked for superficial reasons. 

And finally, there are many more blogs to be written!

For references, see the relevant page on the website.

- END -

Thursday, February 16, 2023

SCOTUS Justices Clarify The Boundaries Between Church And State


The First Amendment of the Constitution addresses religious matters in the following statement: 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [.]”
And for brevity and clarity in the logic of legal arguments, I will refer to the establishment clause and the free exercise clause.
That bold statement contains merely 17 words but in the 231 years since 1791, hundreds of federal law suits have found their way to the U.S. Supreme Court. And the justices have elaborated on what those 17 words mean and how the boundary between church and state is supposed to work. 
Certainly, politics and religion are an awful combination of intensely held uncertainties. SCOTUS is about law, reasoning, and logic and when applied to the boundaries between church and state—well, it’s an important, daunting task.
My goals for this blog are to:
Display the logical reasoning in the SCOTUS case of: TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES. Brevity title is: Trinity Lutheran Church v. Comer.
Display the highly refined style of the specific referral question the justices must answer.
Provide some historical perspective and context for the American experience of religion and government. Learn that Congress can make and modify laws which define the term “religion” and where and/or how it can be exhibited.

The First Amendment says Congress cannot establish (put into law to make happen) an official religion or religious activities. And the First Amendment also says Congress cannot prohibit (outlaw or prevent from happening) the exercise of (doing or performing) religious activities. If you ponder these two concepts you might begin to feel or see that they result in some contradictions.

Trinity Lutheran Church, located in Missouri, had a daycare center and preschool, and the preschool had a playground with a rough surface of pea-sized gravel. The roughness of that playground surface sometimes led to skinned knees. And, Trinity Lutheran Church learned that the State of Missouri had the Scrap Tire Program [recycling] which made a rubber surfacing compound. Missouri created a program by which nonprofit organizations could apply for a grant to get reimbursed for installing the rubber surfacing compound on their playgrounds; such a grant is called a government benefit
Trinity Lutheran Church applied for a grant and they were given a high score—fifth out of 44 grant applicants. But they were turned down because the Missouri Scrap Tire Program strictly prohibited giving grants to any applicant owned or controlled by a religious organization; this was in accord with the Missouri constitution. 
In Federal District Court, Trinity Lutheran Church sued the Missouri Department of Natural Resources alleging that they violated the free exercise clause of the First Amendment as well as the Fourteenth Amendment’s Equal Protection Clause; Trinity Lutheran asserted that a playground is not a church and, therefore, the Missouri government isn’t establishing religious practice by awarding a grant for playground resurfacing. But the Federal District Court agreed with Comer and disagreed with Trinity Lutheran.

Trinity Lutheran appealed to the Federal Circuit Court, which:
Made reference to a previous SCOTUS decision, Locke v. Davey, which said it’s not necessarily a violation of free exercise of religion to deny a government benefit to a church.
The Federal Circuit Court affirmed the Federal District Court’s decision. Trinity Lutheran lost.
Trinity Lutheran appealed to the Supreme Court, which agreed to hear the case.

Since over 50 years ago, all SCOTUS justices have been attorneys and most of them have come from the most prestigious law schools in America. When they perform their work on a case they will have:
Read background material, listened to oral arguments by the plaintive and respondent attorneys, and read a draft opinion by their own law clerks (who are themselves highly qualified, young attorneys). 
The nine justices meet and share their thoughts on how they would vote on the case before them and answer the referral-question of the case. By the end of this meeting, most of the justices can mostly figure out how everyone is likely to vote. The Chief Justice will assign a justice to write a majority opinion. 
Concerning our case of Trinity Lutheran V. Comer, each justice would join the majority opinion, or a dissenting opinion, or write a separate opinion of their own and join either the majority opinion or the dissent. 
Each judge will have answered yea or nay to the referral question presented, which is: Whether the [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

Trinity Lutheran Church’s grant application ranked fifth out of 44 grant applications, but they were “categorically disqualified” because they were a church and the Missouri Constitution stated that, “no money shall ever be taken from the public treasury, directly or indirectly in aid of any church, section or denomination of religion.” (Trinity Lutheran Church of Columbia, Inc. v. Comer. (n.d.). Oyez. Retrieved February 9, 2023 from https://www.oyez/cases/2016/15-577)

Legal Precedents Are Used To Make Valid, Logical Conclusions By Analogy
A legal precedent is a previous court decision in a different but similar type of case. When the two cases are similar in their essentials, the court can use the old case to logically infer that the new case should be decided similarly to the old case. SCOTUS justices are fully capable of using this process correctly; but there may be some small differences between the cases which result in dissents rather than concurrences.
In Locke v. Davey (2004) SCOTUS did not overturn a Washington College’s denial of a scholarship for graduate study of “pastoral ministries.” Washington State prohibited public funding for “religious worship, exercise or instruction.” Davey lost his case not because of what he believed religiously, but because of what he wanted to become, a minister. Public money could help fund, for example, his becoming a teacher in a wide variety of subjects; but, public money could not fund him for becoming a minister. 
The SCOTUS majority found the Federal District Court wrong in finding that Locke v. Davey showed that the free exercise clause didn’t require giving a grant to Trinity Lutheran. The free exercise clause requires that the “strictest scrutiny” be applied whenever “special disabilities” are applied as a result of “religious identity” (Church of Lukumi Babalu Aye, Inc v. Hialeah 1973). The ultimate result of these two precedents is that a public benefit cannot be withheld from an organization just because it’s a church. The District Court had made an argument by analogy from Locke v. Davey to Trinity Lutheran Church v. Comer but the District Court failed to account for the implications of strict scrutiny.
Everson v. Board of Education of Ewing (1947) involved an Establishment Clause challenge to a New Jersey law which allowed local school districts to reimburse parents for public transportation of their children to either public or private schools. This was a public benefit to all parents of any religion or no religion at all. If there is public transportation for either atheists or Christians, for example, then to deny the public benefit of transportation to schools for Moslems would be penalizing a religious group.

Precedents May Also Contain Fundamental Logical Structure 
Of "If This, Then That" Procedures
If-then statements are not hard to understand: whenever a specific condition exists then something else happens. For example, IF because of a religious identity issue some rights or benefits result, THEN the procedure of “strictest scrutiny” must be applied. Here’s the definition of strict scrutiny from the First Amendment Encyclopedia website: 
Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling government interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the government. Strict scrutiny also is used when a law targets a specific religious faith.

The SCOTUS Conclusion in Trinity Lutheran Church v. Comer
The referral question was: Whether the [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.
SCOTUS answered the referral question by concluding that: The [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.
This was a 7-2 decision in favor of Trinity Lutheran Church. It was not a close decision. The majority opinion was written by Chief Justice Roberts and he was joined by Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch. Dissenting were Sotomayor with Ginsburg concurring in the dissent. I chose not to discuss the dissent because many of its claims are not convincing or are overstated. It does make a valid point that the majority’s opinion “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
I did not discuss the several concurrences because they focus on relatively minor points.

It is not at all easy to read and fully understand the background and logic of SCOTUS decisions. When I first read through the majority opinion I highlighted much of it as wrong! I had to work hard to understand how actual historical facts and the precedents spanning many decades make the Trinity Lutheran Church v. Comer decision a correct one. It turned out I was naïve on several important aspects of church and state constitutional law. 
Trinity Lutheran Church v. Comer displays clear logic and use of precedents. It includes discussions of the important procedure of applying strict scrutiny. 
The majority opinion is clearly and believably correct especially when focusing on what justice Breyer wrote in his concurrence: “[T]he First Amendment was clearly not meant to prevent religious organizations from accessing government-provided benefits such as police and fire services. The benefit here was for the health and safety of children and therefore was in the same class of government-provided services that religious organizations should be able to access.” (Trinity Lutheran Church of Columbia, Inc. v. Comer. (n.d.). Oyez. Retrieved February 9, 2023, from

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