TEA PARTY PRESIDENTS WILL NOT BE LAW PROFESSORS : CAN LAW GOVERN WAR?

AN ESSAY

Last week, Sarah Palin delivered a speech to the first annual "Tea Party" convention in Nashville. Many listened very closely to her remarks because everyone wants to know what she plans to do with her political future. Love her or hate her, she has found a niche: Semi-factually orating to the semi-intelligent, nativist, government-hating "silent majority" that would not mind seeing President Obama lying in a pool of blood.

Apparently, this "silent majority" has launched a "counter-revolution" called the "Tea Party Movement." From what I understand, its adherents believe that all government is bad. They take their name from the American patriots who revolted against English taxation by destroying royal property in 1773. I suppose that these 21st Century "patriots" share the same hatred for taxation as their 18th Century "brethren."

But that's about all they share. Patriots in the 18th Century fought against legitimate wrongs. They sought to establish a Republic of laws against foreign autocracy. By contrast, these 21st Century "patriots" are not rebelling against a foreign monarch to establish a "more perfect Union." No, they are rebelling against their own government in order to pay fewer taxes and to exclude undesirable immigrants from American shores. They don't want to establish a new government to provide for Justice and "Domestic Tranquility." They basically want to abolish all government so that private business can do whatever the hell it wants.

I don't think James Madison or Thomas Jefferson would have joined this "Tea Party." Their talk about "the Rights of Man" and "equal human dignity" would not have gone over too well with this wetback-hating crowd. And they certainly would not have gone far with arguments about a Constitution. No, Palin's "Tea Party" adherents just want unlimited business license, not an enlightened Bill of Rights.

In sum, then, I gather that the "Tea Party" wants something just above anarchy. They want a "minimalist" government that does not interfere with private wealth or property ownership. They don't want health or welfare regulations, nor do they want intrusive "civil rights" legislation that blocks business opportunity. They want government to maintain an army, protect the borders, guard foreign trade interests, vindicate private contract rights and to prosecute domestic criminals. Beyond that, they do not want government to play a role in public life.

So these are the folks to whom Sarah Palin directed her remarks last week. And what did she say? Not surprisingly, she took vicious swipes at President Obama, who represents everything the "Tea Party" is not: A big-government minority intellectual who eschews military strength and supports high taxes. She lambasted him for failing to keep America safe from terrorism. To make her point, she attacked his intellectual spirit: "To win [this] war, we need a Commander-in-Chief, not a Professor of Law."

In other words, law professors ruminate and dawdle over legal intricacies while Commanders-in-Chief ignore the law and just kick ass. "Tea Party" members don't want the law. They want swashbuckling, extralegal ass kickers.

As much as I personally disagree with Palin's simplistic reasoning on this point, I cannot ignore that she illuminates a popular distinction: She equates law with weakness in war. There are "law professors" and there are "Commanders-in-Chief." Law professors are vacillating cowards who waste time worrying about the law. By contrast, Commanders-in-Chief kick down doors and get the job done, the law be damned.

Sadly, there is a widespread public belief that anyone who follows the law cannot protect the country from terrorism. The "Tea Party" fully endorses this belief. It asserts that the President cannot protect Americans if he insists on following the law--and the Constitution. Rather, according to the "Tea Party," a "strong President"--namely, a "Commander-in-Chief"--will gladly ignore the Constitution in order to "kick terrorist ass."

This is a stunning admission of the law's weakness. After all, if ignoring the law is the only way to win wars, what does that say about the law? Why even bother with it? Wars test States in the harshest possible ways. Yet law is supposed to guide a State through everything. If the law cannot handle war, it cannot handle anything. If the public believes that law is insufficient to win wars, then it rejects law completely. No one trusts weakness; and the "Tea Party" associates law with weakness. In that light, it is no wonder that Palin pejoratively labels President Obama a "law professor." That is the same as calling him a "Professor of Weakness."

But what is the alternative? Who is the fabled "Commander-in-Chief"? What does the "Tea Party" want in a President? Do they want a man who tears up the Constitution and tramples on their rights as citizens? Do they want a man who ignores international treaties and indefinitely imprisons people without cause or charge? Do they want a man who tortures others? Do they want a military State? Well, that is the opposite of law. And if law is weakness, maybe they do. After all, terrorists exploit weakness. It's better to be strong than weak, no matter how much liberty you must surrender, right?

I say no. It is dangerous to associate law with weakness because our law exists to govern all contingencies, including war. Our Constitution creates the term "Commander-in-Chief." See U.S. Const., Art. II § 2, cl. 1. There is no fanciful distinction between "law professors" and "Commanders-in-Chief." If anything, the "Commander-in-Chief" owes his existence to the Constitution--and the Constitution symbolizes life under law. In this sense, "Commander-in-Chief" is a legal term. The "Commander-in-Chief" plays a specific constitutional role under law. According to the Constitution, the President manages war within the law. He even takes an oath to support the Constitution. See Art. II § 1, cl. 8. Textually speaking, then, the President's first duty is to the law, not to kicking ass.

Ms. Palin did not know that. But then again, she does not know a lot of things.

Law is not weakness. If anything, it symbolizes our strength as a State. In the United States, law stands for something better than mere brute force. We enshrine our deepest values in law. Through law, we guarantee personal liberties and rights. Through law, we define the parameters by which government acts. We insist on law because the law protects us. If war suddenly entitles government to ignore the law, we have lost our protection. And it is no accident that our Constitution provides for war. Our Framers knew that war often provides an excuse to ignore law. That is why they demanded that the law remain intact, even in war. By defending law even in war, we affirm ourselves our own strength as a State--and our own rights as individuals.

Yet the "Tea Party" would have us believe that war trumps law. It even mocks a President who commits himself to following the law to govern war. This is extremely troubling. After all, the President has an institutional duty to follow the Constitution. By observing the law, the President is not betraying the people; he is doing his constitutional job. This is not weakness. If anything, it is strength.

Still, it is hard for the semi-intelligent (and sub-intelligent) masses to understand the value in defending law. To them, kicking ass seems a much more satisfying governmental option than according Due Process rights to prisoners and fretting over procedures. But if they only knew that fretting over procedures keeps everyone free. Perhaps then they would understand that there is value in defending law. After all, once the law falls in one case, everyone is vulnerable, not just the ne'er-do-wells rotting at Guantanamo Prison.

For my part, I feel safer knowing a law professor is guarding the Constitution than some "Tea Party" fanatic who would gladly take a dump on my rights simply because he says there's a "war on" somewhere.

But I'm unusual. Most Americans don't mind when authorities shit on their rights, as long as they can keep shopping in peace. That's why they might join the "Tea Party," and I won't.

MIDWEEK BREAK ON A SNOW DAY

Early this week, I spilled much ink discussing the Supreme Court. Today, I am a little more tired than usual. I am also a little intellectually spent, so I decided to take a rest until tomorrow. Believe it or not, I am not feeling too satirical. I still have a list of potential satires to craft, but nothing really sparks my fire today. I don't write unless I feel that spark first. Uninspired writing isn't worth my time--or yours. It's OK to be uninspired when serving an economic master for pay. But not when you're investing your passion in art.

Yesterday I saw something funny. They just opened a Filene's Basement bargain store on 14th Street, near the Whole Foods between Broadway and University Place. As I walked past, I noticed this sign: "FILENE'S BASEMENT - TAKE THE ESCALATOR UP TO THE SECOND FLOOR."

I didn't know you could ever go up to get to a basement from street level. But I guess you can. After all, companies need to work with the real estate they can scrounge, even if it doesn't sync with their names.

On the other hand, "Filene's Second Floor Mezzanine" just doesn't have the same ring as "Filene's Basement." So basements can be on the second floor, at least on 14th Street.

Now I'm looking for an attic on the lower level. I'm sure I'll find one sooner or later. What's in a name, anyway?

See you tomorrow!

Oesterhoudt

STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 2

Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.

Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.

Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."

But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.

Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.

Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?

You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).

In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.

But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).

What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.

I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.

Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.

Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.

Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.

It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).

Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.

If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.

Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.

See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.

But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.

And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.

He really must not have liked Austin.

Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.

CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 1

Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.

In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.

In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.

But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.

Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.

Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.

To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.

Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.

In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.

In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.

And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).

Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.

Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.

But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).

Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?

According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.

At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.

Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.

That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.

But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).

Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.

In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.

Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.

IF PALIN WINS, OESTERHOUDT EMIGRATES

I CAN PROMISE YOU THIS...

I just read an article in the New York Times detailing Sarah Palin's increasing political influence. It mentioned that she is positioning herself for future elections and that she even is "educating" herself about relevant events so she can better compete with her opponents. She has walled off her home and turned it into a "compound" for conservative patrons. She makes daily Twitter broadcasts to millions outlining her "rogue" approach to American government, namely, that there should basically be no government--beyond a police department and prison system, of course. You know, to lock up undesirables, communists and the like.

I guess that's what they mean by "The Tea Party Movement."

Well, no matter what they mean by it, today I am making a promise:

I, Balthazar Oesterhoudt, author of that certain online periodical entitled "Reason, Commerce, Justice & Free Beer," published in the GREAT REPUBLIC of the UNITED STATES OF AMERICA, do hereby promise and commit to LEAVE this GREAT REPUBLIC of the UNITED STATES OF AMERICA if--and on the express condition that--SARAH PALIN is elected President of the UNITED STATES OF AMERICA.

That's my promise. If Palin wins, Oesterhoudt emigrates. That's all there is to it.

So, if Palin takes the White House, Oesterhoudt is taking Berlin. End of story.

I usually don't write on the weekends. But the sheer potential horror of a Palin government moved me to write this morning. I don't have a complicated message today. All I want to say is that if the American people really elect Palin, I have no place among them. It's no answer to just cower among my fellow radicals in New York. If Palin wins, it symbolizes a much larger problem than mere sectional differences between Americans. It symbolizes the victory of foolishness over reason, ignorance over learning and backwardness over tolerance.

So again, if Palin wins, ich bin ja raus hier... I'm outta here !

NATIONAL BROTHERHOOD OF NO-GOOD SCOUNDRELS, DISHONORABLE PRICKS, LOW-DOWN PUNKS AND PLAIN LOUSY SONOFABITCHES WHO NEVER CALL YOU BACK

POLITICAL PARTIES FOR A CHANGING WORLD

By : Dr. U. B. van Flucken, Ph. D., Yale University (Behavioral Science); Former Fashion and Women's Issues Editor, Men's Health Magazine (2003-2007); Fellow, The National Favorable Results Society (Washington, D.C. Chapter); Author, "Say What You Need To Say : A Beginner's Guide to Getting What You Want from People " (Doubleday Press : New York 1999); Semi-Professional Water Polo Competitor (Greater Northeast Elite Sports Network) (1989-present).

No matter where you turn in this country, people tell you that it is bad to be a scoundrel. They say that it is wrong to lie, exaggerate, deceive, betray, backstab and abuse people's trust. They say it is wrong to borrow money without paying it back. And they even say it is wrong to two-time on your girlfriend.

But these folks just don't know how to be a no-good scoundrel. Contrary to all the propaganda, there is nothing wrong at all with being a no-good, morally-destitute scoundrel. You just have to know how to play your cards right. In fact, great people know how to be great scoundrels. And they become great because they know how to disguise who they really are: Scoundrels.

I started the National Brotherhood of No-Good Scoundrels, Dishonorable Pricks, Low-Down Punks and Plain Lousy Sonofabitches Who Never Call You Back for a simple reason: To show Americans how vital we really are. Since founding the organization, I have struggled to demonstrate that honorable responsibility is not the pathway to success. To the contrary, it is my mission to show that only a dishonorable scoundrel can prevail in this world. And it is not a hard job: If you know how to be a low-down, dishonorable punk and not get caught, there is nothing you cannot accomplish.

Success is all about image. When you're a successful scoundrel, no one knows just how big a scoundrel you really are. If they did, they'd ostracize you and no one would want to talk to you. Scoundrels need people; you can't be successful without them. But real scoundrels know how to control their image. They don’t let people get the right idea about them. They carefully monitor how people perceive them, then skillfully play one unsuspecting idiot off the other to gain all the advantages. Contrary to all the rhetoric, scoundrels aren't haphazard bums. They know exactly what they're doing at all times.

Not everyone has the guts to be an unrepentant, conniving knave. Most people buy into the propaganda and try to live honorable, "decent" lives. A lot of good that does: They wind up working loser jobs for bad pay, then skulking around with their wives and boring children for years on end. Sure, they might get some inward satisfaction from "treating people with respect" and "telling the truth, no matter what."

But at what cost! Wouldn't it be so much better to twist a few arms and tell a few tall tales here and there to really get what you want? Wouldn't life be so much more rewarding if you played some putz like a fiddle, then refused to call him back when he needed you? Why not? As long as you make sure that the guy isn't important for your advancement later, screw him. Tell him what he wants to hear. Inflate yourself. Get what you need from him. Then just forget about him and move on to the next sucker. Remember: Life is a ladder with human rungs. You need to keep moving up if you want to get to the top.

Dishonor, manipulation and double-dealing bring untold rewards. Still, a skillful rogue must make sure he does not generate the wrong impression. Good scoundrels effortlessly master disguises. You can't just trample on people and expect them to take it. Rather, a skillful rogue knows how to totally screw a person over without them knowing until it is too late--if ever. Scoundrels like us only got a bad reputation because some jerk tried to be clever and got caught in the act. And scoundrels only get caught when they are not paying attention to what they are doing. In that sense, true scoundrels are not scoundrels at all: They are virtuosos who know how to spin a story and exploit the hell out of people without anyone ever catching on. That takes skill--not everyone can hack it.

Life is tough enough without worrying about whether you're responsible or ethical. Everyone wants the same things: Money, success, happiness, women, recognition. You know, the usual stuff. Everyone is chasing after the same rewards. It is hard to win even without rules. That is why it amazes me that people insist on "honest dealing," "telling the truth" and "propriety" in their quest for success. That's like tying a boulder to your leg before swimming the English Channel: It greatly impedes your chances to succeed. In fact, it will probably sink you long before you even come close to your goal.

But scoundrels don't bother with boulders. They dress for success. They think about where they want to go and just do it. They do not distract themselves with abstractions. They don't overthink issues; they just deliver results. To that end, it makes no sense to respect everyone. In fact, most people on the road to success are hopeful scoundrels, too, and why would you respect someone who is trying to hoodwink you? No, a skillful rogue simply acts like he respects his fellows, when in truth he knows what they are: Just another low-down sonofabitch determined to block his advance up the ladder. To be a successful scoundrel, you must hold certain assumptions about your fellow man. And that means you expect to be deceived, deluded, used, abused, tossed away, manipulated and forgotten. It’s all part of the ball game: You need a tough heart to keep playing.

Great scoundrels don't get discouraged. They seek out weakness and capitalize on it. Sure, they know that people are out to use them, but they use others before they can be used. And in the off chance that someone actually trusts them, all the better. Clever scoundrels always come out ahead.

In this light, it is inconceivable why society holds us in such contempt. We are the go-getters. On the other hand, we recognize that no-good scoundrels, dishonorable pricks, low-down punks and plain lousy sonofabitches occupy the highest positions in our society. We run the banks. We run the Senate. We run the stock exchange. We run the insurance companies. We control everything. And the beauty of it is that no one knows we are scoundrels--or, if they found out, there's nothing they could do about it. People only ridicule us when we commit some faux pas that blows our cover. Great scoundrels, however, are extremely discreet. They don't make faux pas: They screw everyone else over their whole lives and no one ever notices.

For that reason, all the social criticism against scoundrels makes no difference to a truly dishonorable punk. A masterfully rotten scoundrel never makes a mistake to invite rebuke. He just keeps moving over people until he quietly reaches his goal.

We prefer it that way. The moralists and ethicists can whine all they want about "irresponsibility." They are only talking about amateur scoundrels. Little do the moralists know that professional scoundrels are the ones paying them to do their little jobs. Little do the ethicists know that professional scoundrels are the ones who own the printing companies that publish their little books. Undiscovered, virtuoso scoundrels run this world--and no one will ever know the difference. That's exactly how we like it.

So what is our secret? If being a scoundrel is so advantageous, why do so many people refuse to follow our path? We wish we could provide specific advice in this regard. The most we can say is to put yourself above others, keep your eyes on the prize and do what you need to do to get it. Don’t slow yourself down with categorical loyalties, philosophical principles or--God forbid--conscientious worries.

In a word, a great scoundrel is a great actor. He can play any part. But he must remain believable. In fact, a scoundrel has failed when the world calls him one. Great scoundrels appear to be everything, even if they are nothing. They seem to be friends with everyone, when in truth they have none. In the scoundrel's world, it's all about presentation. It doesn’t matter if there's really nothing there. Very few people ever really look to see if there is, anyway.

So if you really want to be scoundrel, start thinking about your image. Stop thinking about dignity and worth. Stop thinking about honesty, unless it would help to be honest in a particular situation. For a scoundrel, the truth is never absolute. It is just a tool. Mark that and you will go far.

Tread softly. Flatter. Connive. Ingratiate. Betray. Lie. Win.

Be a no-good scoundrel. Because good never got anyone what they wanted. And there's nothing wrong with getting what you want.

OUR SHAMELESS, DISGUSTING SUPREME COURT

OESTERHOUDT STRIKES

Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.

That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.

In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.

But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.

That is not inspiring. It is just disgusting.

It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.

First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.

But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).

Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.

Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.

Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).

This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.

That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.

Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.

Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."

But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.

Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.

Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.

On the other hand, I might get a few guffaws along the way--and more ideas for satire.

I can't write the shit Supreme Court justices come up with.

READING DAY AND A WORD ON WASHINGTON GRIDLOCK

I found some really interesting stuff to read today. I spent the better part of the morning paging through another book on ethics. Then I had some phone calls to make. To be blunt, it cut straight into my writing time.

But that doesn't matter. I grow when I read. I stock up on ideas. When I sit down to write tomorrow morning, I'm sure my inspiration will be flowing at full speed.

In the meantime, thanks for checking in. And don't forget to check out my archives!

I started looking through everything I've written so far about Barack Obama. I'm amazed that my satires have partially proven correct. Last year at this time, I never would have thought that my jokes about stubborn Republican opposition to Obama would have proven true. But oh how they did: Painfully so. In fact, the Republicans have succeeded in completely intimidating Obama simply by digging in their heels, crossing their arms and saying the word "no."

Democrats have not done much better. They refuse to stand up to the Republicans even though they have massive Congressional majorities. But whenever they pass something, the Republicans start screaming "tyranny by the majority." Now most Americans think Obama caused all the problems that originated more than 10 years ago. It's just hopeless.

Who'd a thunk that would have happened on February 3, 2009? I know I didn't. On the other hand, perhaps we all expected just a little too much from the Washington political system. I don't blame Obama as much as I blame the entire wretched two-party system with its identical, wealthy members. There really is no difference between Republicans and Democrats. They all come from the same social class. They just debate each other for show. In the end, nothing changes. Nothing at all.

But at least it gives me something to satirize. I guess that's the saving grace for me. There is abiding truth to the old Russian adage that "laughter through tears" is the best kind of laughter.

Oesterhoudt

NEIGHBORS ARE RARELY GOOD, AND EVEN MORE RARELY THERE WHEN YOU NEED THEM

OESTERHOUDT STRIKES

I reserve especially harsh criticism for insurance companies. In the past, I have mocked them in satires and rebuked them in essays. I know what insurance companies are all about: Demand money from you, then stubbornly refuse to pay when disaster strikes. Neither cockney-speaking GEICO® geckos nor ditzy discount-dishing Progressive® saleswomen nor confident black men telling me "Allstate's® stand" will ever persuade me that insurance companies are anything other than what I already know: Insatiable, vicious, unsympathetic private profit machines that capitalize on human qualms about the future.

Insurance companies advertise all the time. I use insurance advertising as a thematic backdrop for my criticism. I analyze insurance advertising to show inconsistencies between messages and practices. For example, I have analyzed GEICO®'s vacuous advertising several times to show that commercial actors rarely provide the most essential information to consumers, like information about prices, risks and even services. Rather, they merely create "visual candy" that forges a mental link between the product and the company. This implants a sensory impression in the viewer, which then yields an increased likelihood that he will remember the image when it comes time to buy insurance. This has nothing to do with educating the consumer about advantages and disadvantages between competing products. It is merely a cynical ploy to trigger a mental reflex to buy something in particular circumstances.

But this is what advertising is all about. It is not about education or even information. It is about sensory perception. For commercial actors, the end is always profit. To make a profit in the free market, you need customers. To get customers, you need to convince people to part with their money. To make customers part with their money, you need to make sure they know you have something they need or want. Advertising does that: It merely advises potential customers that a company has something they need or want. It shows it to them in a memorable way. It plays to their senses. Once it makes an impression, it increases the chance that they will spend their money in the right place. And that fulfills the profit goal.

Still, my purpose today is not to analyze sensory mechanics in American advertising. Rather, I am writing today to take a hard look at a particular advertising message on its own terms. In the end, I will reveal its absurdity.

Insurance companies use slogans to reinforce their visual advertising. In addition to leaving a visual impression with consumers, they also leave an audible one. For example, GEICO® not only hammers a visual connection between geckos and car insurance. It also pairs the image with the ever-repeated phrase: "Fifteen minutes could save you fifteen percent or more on car insurance." Allstate® uses the phrase: "You're in good hands." And State Farm® matches its imagery with: "Like a good neighbor, State Farm is there." Sometimes State Farm even sings the slogan to make sure you remember it. Hey, they need to make sure you reflexively think State Farm® when you need some insurance. And people remember tunes a lot better than just spoken words.

"Like a good neighbor, State Farm is there." What a curious slogan. It reflects an incredibly naïve view of human nature. And that's ironic, because State Farm obviously does not hold that view. I know for a fact it doesn't. I have litigated cases involving State Farm, and I can tell you firsthand that they do not treat claimants--or their opponents--as "good neighbors." In fact, they treat them as mortal enemies whom they would rather see die than pay a red cent.

What is a "good neighbor," anyway? Do people really like their neighbors? Do neighbors actively help each other in this society? It sure doesn't seem so to me. In that light, I find it bizarre that State Farm adopted a slogan that equates its insurance service with the service you can expect from a "good neighbor." In my experience, I have generally found that my neighbors could not give a damn about whether I lived, died or prospered. Some have said hello. Some have not. Actually, most did not. Most just went to work, came home, locked their doors, attended to their own shit and went to bed without even looking at me in the hallway.

In fact, most of my relationships with neighbors over the years have been negative. If they knock on my door, it's usually to complain about something I'm doing. They never stop over to check on me or to ask how my life is going. They never volunteer to help me with anything. To the contrary, they just grumble about me and spread gossip if they suspect me doing something "inappropriate."

And they certainly don't make house calls if I'm suffering a crisis. If I have a problem, they'll never know about it. Even if they did, I seriously doubt they would rush in to help me.

And why should they? American law says that we are not our brothers' keepers. If you pass a person dying on the street, you have absolutely no legal obligation to render assistance, even if you're a doctor. That reflects our society's views about "neighbors" much more than any corny State Farm slogan. That is why I find it flat-out laughable for State Farm to equate its insurance service with the "help" you can expect from a "neighbor" in the United States. You might as well say that you won't provide any help at all, because that's how much help you'll receive from your neighbor. In truth, your neighbor is much more likely to complain about you or even report you to the authorities than help you in a pinch.

This is the world we inhabit.

If this is the level of support we can expect from neighbors, what can we expect from State Farm? State Farm says that it will be "there" for you "like a good neighbor." Well, no neighbor has never been "there" to help me with anything, let alone a "good" one. By that standard, I guess that means that State Farm will leave you hanging just the way your neighbors do.

But State Farm has a greater legal obligation to help than some undifferentiated neighbor. After all, if you pay money for a State Farm insurance policy, you enter into a contractual relationship. Contracts mean that two people promise to do things for each other on pain of legal penalty. Contracts create legal duties to act or refrain from acting. Neighbors have no such duties. In that sense, if you buy insurance from State Farm, you are buying something more than a neighbor's obligation. You are enlisting services for a fee. You are engaging in commerce. You are creating a legal relationship. If State Farm acts like a "neighbor" after you hire it as a "servant," it would violate its legal duties to you. Hey, you signed a contract so that State Farm would give you more than a neighbor would give. But that's still not that much, because neighbors have no obligation to give you anything at all.

Of course, State Farm does not want you to think this way. It wants you to think that neighbors help each other when they are in need. In fact, it wants you to accept the fantasy that your neighbors will actually sacrifice themselves to help you for no reward. That is an extremely Christian delusion; and State Farm fully exploits it. After all, Christian doctrine advises us to "love our neighbor as ourselves" and to help those in need without expectation of reward. State Farm taps into that notion to cast itself as a "magnanimous patron," not a profit-hungry private corporation. And State Farm knows that many consumers equate the term "neighbor" with selfless Christianity.

This is cynical exploitation at its worst. While Christ might have helped his undifferentiated neighbor without hope of reward, most neighbors are not Christ-like. In fact, experience tells us the opposite.

State Farm is no exception. During Hurricane Katrina, State Farm acted exactly like the neighbors I know: It refused to help out at all when people really needed help. State Farm wiggled out from paying "hurricane damages" because it said its policies did not cover flooding. In my own experience practicing law, I recall a case in which State Farm refused to pay its own customer's $60,000 medical bill because it disputed the doctor's belief that the injury was "permanent." So it left its "neighbor" holding the bag with a $60,000 bill and a deformed arm--even though the "neighbor" dutifully paid his premium every month. How's that for service?

But that's how neighbors treat each other. So I guess State Farm was just doing as it advertised: It was just acting like a neighbor.

I find it utterly shameless for State Farm to exploit Christian overtones in the word "neighbor" to lull customers into thinking it actually cares about their welfare. No private corporation cares about anything beyond its quarterly profits. That is the law. Corporations owe no duties to anyone except their own shareholders; and shareholders could care less about magnanimity toward non-shareholders. They want money; and they don't really care if they're "nice" about getting it.

Commerce and Christianity just don't mix. State Farm knows that. It simply proceeds on the assumption that consumers are too stupid to understand the same thing.

Then again, most advertising functions on that premise. If people were too smart, it would really hurt business.

SOME PEOPLE ARE MORE VALUABLE THAN THINGS THEY DROP ON THE TRACKS

A LETTER FROM A CONCERNED CITIZEN TO THE COMMISSIONER OF THE METROPOLITAN TRANSPORTATION AUTHORITY (MTA)

By : Mrs. Zelda B. Wertheimer, Wife of Joseph G. Wertheimer, Founder, Wertheimer Industrial Plastics & Enamels Co., Inc. Owner, 2500 Acres assorted real estate in four countries; Resident, 237 Park Avenue, New York, NY; Member, Director's Guild, Metropolitan Museum of Art.

February 1, 2010

Dear Sir,

As a New Yorker and a humanitarian, I wish to complain about several new print advertisements you recently published around the metropolitan area. Although your safety advisements and commercial messages rarely arouse my indignation, your recent admonishment to subway riders: "Whatever falls on the tracks is not as valuable as you" is simply shocking. I speak for all New Yorkers when I say that your message is offensive.

I understand that the MTA wishes to protect its customers from train accidents. I also understand that train accidents are more likely when customers step off the platform onto the tracks. Further, I understand that some customers might disregard their own safety if they drop something onto the tracks, such as an iPod or other relatively expensive object. The MTA has a right to warn people not to risk their lives to save a piece of personal property. Additionally, the MTA has an interest in avoiding litigation arising from train/customer collisions.

I do not dispute the MTA's financial reasoning in this matter: No one likes lawsuits and no one likes paying money when they don't have to. But there are other considerations in the world. It might be prudent and even financially advisable to publish a poster warning people not to enter the subway tracks. Still, the MTA's message in this case is both philosophically unsound and in poor taste. In the name of decency and community values, I insist that the MTA remove these posters at once.

It is wrong for the MTA to suggest that "whatever falls on the tracks is not as valuable" as the person who dropped it. Although the MTA might think that its message esteems human equality and the importance of life over property, it is philosophically unsound because there are so many applications in which the message is not true. Popularly, people might believe that no object is worth more than a human life. But experience reveals that this is rubbish. Put simply, value depends on a comparison between how much the object is worth and how much the person is worth. No matter what our mothers told us when we were children, people's value can be expressed in dollar amounts. Insurance companies tell us how much we are worth all the time. Our portfolios define our monetary values. Courts tell loved ones how much their deceased family members "would have made" if they had lived. In a word, people are worth a number: And if the object they drop on the tracks is worth more than that number, then the MTA's "human value" message is totally untrue.

Consider the principle in action. Let us say that an impecunious, smelly beggar has a $40 faux diamond ring in his pocket. Let us further say that this beggar has no money, no savings, no real estate, no bonds, no stocks, no accounts, no chattel paper and no right to receive payment from any investment. He has no job; no one wants to be in a room with him, let alone hire him. In a word, this hideous, stinking beggar is literally not worth a cent. His "value" is zero. In these circumstances, if he drops the $40 ring on the tracks, he is actually less valuable than the object he dropped. If a train runs him over as he scampers to recover the ring, the MTA's "message" does not apply: The object he dropped was actually more valuable than he was: A $40 faux diamond ring is worth more than a $0 beggar. A third-grader could do the math on it.

Of course, that is a simple example. Most people are worth more than a beggar. But again, it is difficult to calculate human value. After all, a fresh-faced 30-year-old graduate with $150,000 in education debt is actually worth less than a $0 beggar even if the graduate has $4000 in the bank and a $10,000 stock fund. In that situation, appearances are misleading. Debt negatively impacts worth. Thus, the graduate is actually worth -$136,000. In this situation, if the graduate dropped even a quarter on the tracks, he would be worth $135,999.25 less than the object he dropped. Once again, the MTA's reasoning fails completely: A debt-riddled person is worth much less than even a modest object on the tracks. Any "positive" value is greater than any "negative" value: And debtors are "negative values."

I find it tasteless for the MTA to suggest that human beings are intrinsically more valuable than property. As the above examples illustrate, property is in many cases much more valuable than people. Many people will disagree with that assertion. But experience proves it true. A beggar's life is nothing compared to a $4,000,000 townhome, just as a debt-riddled graduate is nothing compared to a custom car. And what about criminals? Does the MTA suggest that a convicted rapist is somehow more valuable than an original Van Gogh? If a criminal dropped a Van Gogh on the tracks, does it honestly contend that the criminal is "more valuable" than this classic object of Western Art? I should certainly hope not. The bottom line is: Property is worth more than individual human beings.

But not always. When wealthy people hold comparatively less valuable objects, then people are more valuable than property. For example, if I were standing on a subway platform and I dropped my iPod on the tracks, I should refrain from scurrying after it because I am worth much, much more than the $250 iPod. I have extensive savings, accounts, real estate holdings and cash. My assets greatly exceed my debts. My net worth, therefore, is considerably higher than the object I dropped, so in this case the MTA's message is true: I am worth more than my iPod, so why risk myself to fetch it?

Still, these inconsistent results provide further proof that the MTA's message is incorrect. Messages must be philosophically sound. They must apply consistently no matter the subject matter. Yet even a cursory glance at the MTA's message here shows that it does not apply in many situations.

Finally, I find it utterly tasteless that the MTA believes in life over property. It is hypocritical for any governmental institution in this country to assert that human beings are worth more than valuable objects or land. We do not live in this country to spiritually enrich our fellow men; we live in this country to amass more property. There is simply no merit to the contention that life is about human worth. Simple commercial experience contradicts that contention at every turn. Men only have "worth" to the extent that they can expend labor and capital to amass even more property. Beyond that, there is no "intrinsic worth" in men worth protecting.

Legal doctrines and public messages that advocate life over property are indefensible. It makes no sense to sing odes to human life, as the common law does when it says that it is never permissible to kill someone to guard property. This is just ludicrous. If a person worth $0 tries to steal my art collection worth $45,000, there is no debate about which one is more valuable. What incentive would enterprising people have to amass property if they could not defend it against those without it?

Additionally, the law sends completely mixed messages in this regard. If it is so wrong to kill someone to protect property, why does the law not hesitate to heap supplementary punishments on thieves depending on the value of the objects they steal? Does that not show that our society finds it more wrong to steal something worth more than to steal something worth little?

Put simply, we put dollar amounts on both people and things in our society. Some things--and some people--are worth more than others. In that sense, the MTA grossly misunderstands what is really important in life. It is both philosophically unsound and tasteless for the MTA to suggest that all life is more valuable than all property.

Mr. Commissioner, I demand that you remove these hypocritical messages from our streets. It is time to educate our citizens about real worth, not delude them with foolishness about equality.

Yours very sincerely and truly,

Mrs. Zelda B. Wertheimer