by publius
House Speaker Nancy Pelosi just told reporters that she does not
believe she has enough votes in the House to pass the Senate health
care reform bill as-is — at least not yet.
Here's my proposed response: Not one dollar. Not one ounce of effort. Not one word of support. The Democratic Party gets nothing until they pass health care. And if they don't pass it — if they are too cravenly and cowardly and pathetic to move the ball one more inch across the goal line — they get nothing from me.
I'm small fish but hopefully others will join. This is unacceptable. And the Dems deserve zero support — and aggressive primary challenges — unless and until they finish the job.
#not1$
Other Democrats, who honestly feel that the Senate bill is worse than no bill, are making “not $1” pledges to withdraw support from any House member who votes for the Senate bill.
Did you ever read the Dr. Seuss parable about the north-going Zax and the south-going Zax ?
With respect, those Democrats are making a colossal misjudgment — one that completely ignores how important this bill is, how fleeting and rare the window is, and how easily it can be improved.
Jane Hamsher is not exactly my favorite person right now.
We suck.
Agreed on Hamsher.
I honestly haven’t been this annoyed since October 2002.
Publius, I don’t disagree with you.
I was describing the situation Pelosi with which Pelosi must cope, not arguing in favor of either Zax.
My suggestion is for everyone to just chill the fuck out until the SOTU next week. One way or the other, that’s going to be Rally Point Alpha.
Clothes-rending, hand-wringing, and dire oaths of retribution are all premature until then.
Sasha — I would normally agree with that. But the last two days have been different. Obama should be out there doing something.
This has really tainted my view of his leadership. For the first time, I’m thinking maybe he is Carter
I think there are a lot more pro-bill people like me than there are firebaggers like Hamsher and her ilk who want to kill it. A lot more.
Up to now, a lot of us have been quiet because…well…it’s not like we love this bill either. But passing this bill is, flawed as it is, is a lot better than having no bill at all. It will help a lot of people who really need it. Once there is a bill, we can always fix/tweak it as time goes on.
I think a lot of Dem politicians breathed a little sigh of relief when Brown won because it meant that they could dodge this hard vote and push the blame off on someone else. It’s up to us to let them know that this is not an option.
I don’t think he is Carter, see Carter reallu cared. Obama is a really good politicia. How else do you retain his favorability while his parties crashes. He is pragmatic to a fault. Feigned irritationis about the most you get from him. Oh well.
What exactly should Obama be doing then?
I’m sure he’s doing whatever he can behind the scenes, but perhaps you feel he ought to be out in front of the cameras, stridently arguing for House passage of the Senate bill. He’ll have a much larger bully pulpit to argue that in the SOTU so let him keep his powder dry till then.
The thing is, this *is* Obama’s leadership style: When any sort of crisis hits, he doesn’t automatically charge into the fray — he calmly assesses the situation, decides the best course of action, then fully commits himself. That’s what he did during the campaign, that’s how he’s managed his presidency. That’s also why we elected him: he doesn’t merely respond reflexively to a problem, he actually takes time to reflect before solving it.
Or, in the words of the man himself, “I like to know what I’m talking about before I say anything.”
Not passing the bill at this point is suicidal for the Democratic party. Not only does it encourage the Republicans even more, demoralize their base even further, and make them look weak, but they throw away the entire last year of work, and get nothing in exchange.
If only they’d listened to the Republicans’ brilliant ideas more! /sarcasm
I’ve unsubscribed to every list I was on because I donated money. I doubt calling my rep will do any good (although I have) but if I let them know I’m going to hit them in the pocket book and phone bank maybe they’ll listen to me. At least until they’re bought by a CEO.
i’m right there with ya.
the Dems are worthless, and a worthless investment. not a dollar nor a dime.
i’ll support primary challenges, but no incumbents. they are dead to me.
The problem with ‘not 1 dollar’ pledges and the like is that they punish the people who tried to help you and do nothing to harm the people who didn’t. Some Dem who’s balking because he thinks the constituents won’t like it would most likely be glad to say to his constituents that those wild liberals on the internet are boycotting me because I took the stand that you favored.
I strongly doubt that Pelosi is leaving any material stones unturned here. She understands the stakes and, unlike a lot of the others, has the stones to act. But she can’t make scared Dems vote her way, and she can’t scare them more than their constituents can.
There’s no magical formula for deriving Victory from Defeat. Acting in a way that make defeat more likely — whether cheerleading the death of the bill, or providing a triangulation argument — isn’t going to help.
It’s probably hard for O, but I’d consider asking WJC to go visit gettable House Dems, and explain to them that their no vote isn’t going to save them in November. And by the way, this has been a Dem priority since Truman, and voters will come out in favor once it’s done.
Other Democrats, who honestly feel that the Senate bill is worse than no bill, are making “not $1” pledges to withdraw support from any House member who votes for the Senate bill.
If they could articulate a vision where a better bill gets passed (one that isn’t based on wishful thinking scenarios or a profound misunderstand of what reconciliation can accomplish), then I would find their position credible.
Until then, they should be explaining to folks with pre-existing conditions who cannot get insurance that it’s better to sacrifice a couple hundred thousand sick people and hope that we can get single payer 15 years from now. Those lives will help make the case for HCR in 2025, so we need to make sure they don’t manage to fix the system even a little bit…
And, although I agree with your basic point: some people hold this position, and the Dem leadership has to deal with this, I find it incredible that this is the one moment since the McGovern election that the Dem leadership is suddenly hostage to the left wing of the party. They’ve been f&cking the left wing of the party for decades.
So that just cannot be the reason that they’re paralyzed. They’re paralyzed because they lack the courage of their convictions & are most interested in preserving their jobs (and lucrative post-Congress lobbying gigs).
Jeez. No-one even said “welcome back, publius.”
Welcome back publius.
And its as good a time as any to quote Will Rogers:
Democrats never agree on anything, that’s why they’re Democrats. If they agreed with each other, they would be Republicans.
…and of course:
I am not a member of any organized political party. I am a Democrat.?
We don’t matter.
SCOTUS just completed the process of making corporate America into sociopathic virtual voters.
We are Soylent Green.
We live in a fascist state.
Emigration.
Violence.
Goodbye.
First, Italics off!
And yeah, I agree with Thullen that the Supreme Court giving elections to corporations is a bigger deal than the mofo in MA, but I don’t think the politicians are going to notice until it’s too late.
Carleton Wu: I’m not sure that characterizing health care reform as “hostage to the left” is accurate. Besides the fact the politicians and media’s first instinct is to punch a hippie any time something happens, the useless anti-abortion Blue Dogs like Stupak in the House are probably a bigger block to passing the Senate version of the bill than “the left”.
efgoldman, you forgot to hit SHIFT
I therefore name you shiftless.
I hear and share the anger here, but I don’t think letting Congressional seats turn from (D) to (R) is going to help anything.
Corporations are people.
Money is speech.
Welcome to the American Newspeak.
@femdem. Me too. I unsubscribed from OFA. I called barney frank’s office. I called Sheila Jackson Lee’s office. No response from her. I’m going to support her primary challenger if she opposes. Hell, I’m going to walk the streets of Houston to do it.
I hear and share the anger here, but I don’t think letting Congressional seats turn from (D) to (R) is going to help anything.
Apparently it’s not going to hurt anything either.
Well, of course if healthcare failed it was the left that the moderates and centrists blamed rather than all the sleazy deals and compromises that were made by Obama and the Senate.
Funny how this has worked out. Never coulda imagined.
Femdem- Really? How do people manage to forget the Clinton and Bush years so quickly?
One would assume that if Obama cared to pass this, he could put some pressure on the oh-so-important Blue Dogs.
Is Jane Hamsher a larger problem than Stephanie Herseth or Charlie Melancon? I don’t see any harm in letting those seats turn from (D) to (R).
I’m not sure everyone involved realizes these three things:
1. There is NO WAY to get a bill passed before the elections if the current bill isn’t passed out of conference or by using the Senate bill, and it’s doubtful you’d get any Republican to sign on by combining the two bills in any way.
2. The biggest sticking point between the bills is the funding mechanism (I think the Stupak problem is manageable). This happens to be exactly what reconciliation is good for. And the Byrd rule won’t be triggered since it won’t affect the deficit to switch from the Cadillac tax to a surtax or some hybrid between the two. On top of that, the big corporate players opposed to HCR don’t care how it’s funded; the stuff they’re worried about is already in both bills. In fact, the insurers would prefer the House scheme.
3. The Cadillac tax doesn’t kick in until 2013. There’s lots of time to fix it.
I just got an email from MoveOn saying how now’s the time to ask Congress for a real health reform bill with a real public option. I guess they’re proud of derailing it long enough for Brown to win.
Apparently it’s not going to hurt anything either.
It’s easy to think that out of disappointment at an ineffective Congress. It’s easy to forget that the last Republican Congresses were very effective at rubber-stamping every bad idea the Bush Administration came up with.
And this is why I am a leftist and Jane Hamsher is about my favorite person.
Because there apparently is absolutely nothing liberals won’t sacrifice, sell, or give away in order to feel powerful and self-righteous.
What could possibly have been a deal-breaker, since reproductive rights were allowed on the table?
Liberals have no “deal breakers.” And so the war goes on.
Withholding donations and inducing primary challenges to Democratic incumbents is fine as far as it goes. I hope I’m wrong, but my guess is in most cases it goes as far as giving the feckless incumbents a run for their money before they pull out the primary.
(I could be wrong; I certainly didn’t think the Democrats could lose Teddy Kennedy’s seat, so upsets obviously do happen.)
I think at least you need to think another step ahead to whether you then support the feckless (and hopefully chastened) Democrat in the general election. Believe it or not, things really can get worse than a Congress populated by Democratic cowards and sycophants.
It’s worth noting that the only reason the Dems have a majority, let alone a big one, is because of the big tent strategy. Every time we curse the Dems for lacking party unity in the Senate, realize that the consequence of demanding uniform unity is manifest in the GOP minority. I’d rather have 50+ votes to have the majority than 45 votes guaranteed on anything.
Also, it’s times like these I really wish we had a groundswell of support for instant-runoff voting, as long as we’re discussing fantasy scenarios.
Zach: What good is a 51 seat majority, when they need 60 seats to get anything done, and even when they have it, can’t get anything done?
What good is power if you won’t use it?
All those years of laughing at Republicans as suckers because they vote for politicians who, as soon as elected, turn around and screw them on economic issues while ignoring the social issues they were elected on – well, it doesn’t seem so funny now.
Perhaps we need “What’s the Matter With California?”
What good is power if you won’t use it?
Because it keeps power away from those who will use it.
Zach: A “big tent” model is still compatible with leadership and a semblance of party discipline.
If Joe Lieberman and Ben Nelson want to join a filibuster of a super-duper high-priority item like Health Care reform, threaten their committee leadership and threaten to campaign against them.
The specific problem isn’t a lack of uniformity but a willingness on the part of members of the Senate Democratic Caucus to actively sabotage major policy initiatives and a willingness on the part of the White House and Harry Reid to condone and enable that.
There’s a mile of difference between not-voting-for a bill and supporting-the-filibuster-against a bill.
Apparently it’s not going to hurt anything either. better? Were you people even paying attention during 2000-2008?
That makes no sense. How would having Republicans in charge make
Nate
the useless anti-abortion Blue Dogs like Stupak in the House are probably a bigger block to passing the Senate version of the bill than “the left”.
That’s not my sense at all- the Senate bill was to the right of the House bill that passed. While some Blue Dogs might still move from “yes” to “no” despite that shift, it seems to be the progressives (eg Barney Frank) agressively declaring the entire effort DOA.
To some significant extent I think that the progressives in the House don’t care what the Senate’s excuse is, they aren’t interested in being told to put out or walk. Institutional perrogative and all.
Zach
The biggest sticking point between the bills is the funding mechanism (I think the Stupak problem is manageable). This happens to be exactly what reconciliation is good for.
Totally agree, yet almost no one is talking about this; afaict ditching the bill now is based on a pretty flimsy series of excuses. I think there’s a pretty serious commitment problem for Dems here: both centrist and left-wing Dems have an incentive to oppose the bill (for either being too liberal or not liberal enough). Everyone can find a flaw.
And there’s nothing practical to be gained in supporting the bill if it won’t be passed. So the rank-and-file looked to the leadership, and the leadership apparently wasn’t even prepared for the possibility- again, witness Frank strongly taking one position and then changing it a day later.
Bob
Because there apparently is absolutely nothing liberals won’t sacrifice, sell, or give away in order to feel powerful and self-righteous.
And no one that some leftists will not leave dying in a ditch in order to feel ideologically pure.
One thing I have not seen is someone with a preexisting condition criticize this bill from the left. I have not heard a woman with MS stand up and say “I will not accept this live-saving healthcare if it does not include family planning services! I would rather die than pay out of pocket!”
“If Joe Lieberman and Ben Nelson want to join a filibuster of a super-duper high-priority item like Health Care reform, threaten their committee leadership and threaten to campaign against them.”
My point is that this is exactly what the GOP did and they’ve lost several seats on account of it. I agree that there’s a difference between voting for cloture and voting for passage, and I’d also prefer that Lieberman not be an attention starved asshole.
Zach: But it just won them the Presidency, Didn’t you see?
What good is power if you won’t use it?
Because it keeps power away from those who will use it.
Ayup. At this point I expect nothing from the Democrats other than not being Republicans.
Being gay, I just can’t fall into “what’s the difference” mode, however tempting it may be. Because there’s still a difference. One party pretends to give a shit about me, but really doesn’t. The other party very openly and explicitly hates my guts. It’s not a pleasant choice to have to make, but it is still a choice.
At present we have two parties that stand for essentially the same things, broadly speaking: ever greater concentrations of corporate power and economic inequality, an ever-expanding military-industrial complex, military adventurism and neocolonialism abroad, the endless horrors of the “wars” on drugs and terror, and so on. But only one party thus far has been completely taken over by very dangerous, bugf*ck crazy authoritarians. Keeping them as far away from the levers of power as possible is more important to me than punishing the Dems for being the worthless wastes of space that they have repeatedly shown themselves to be.
“One thing I have not seen is someone with a preexisting condition criticize this bill from the left.” Wu
Jane Hamsher has had three different episodes breast cancer.
Apparently it’s not going to hurt anything either.
That makes no sense. How would having Republicans in charge make better? Were you people even paying attention during 2000-2008?
I didn’t say it was going to make it better, I said it’s not going to make it worse. It’s not going to make any difference at all. The repubs have figured out they can make the dems roll over and play dead even when the dems have massive majorities (and 59% is a pretty massive majority). There are lots of things that could be done but all that’s happening is dems cowering in the corner hoping they can bleach the stains out of their panties. I’ll vote in the prmary but I’m thru phone banking, schlepping thru the appalachian country side, donating money I can barely afford and praying.
I just gave $$$ to Tom Perriello. He has been incredibly courageous through the entire health care battle, after winning an election by less than 500 votes. I will send him an email shortly letting him know that I want the House to vote for the Senate bill (something I’m pretty sure he will do), but the “not one dollar” strategy makes no sense in my jurisdiction, or in others where courageous Democrats need to be rewarded.
And echo the “Jane Hamsher is not my favorite person” statement. I am outraged at people like her who would stick it to so many millions of Americans.
I think a lot of Dem politicians breathed a little sigh of relief when Brown won because it meant that they could dodge this hard vote
It’s hard to believe, in a way – since they’ve already done a virtually just-as-hard vote (the House bill which has already passed) – but this seems to indeed be the case. This is an object lesson on why people despise Democrats (‘liberals’) and why they have a good case for so doing. It’s not about policy; it’s about character.
Jane Hamsher has had three different episodes breast cancer.
And the money to pay her bills.
“And yeah, I agree with Thullen that the Supreme Court giving elections to corporations is a bigger deal than the mofo in MA, ”
What’s that about?
On the Dem-bashing, I’m all for it, but the problem has been there all along and I don’t quite see why not supporting Democrats now is any different from voting Nader in 2000 (which I did then–I’ve been a good little Democrat-enabler since). We all have issues which are breaking points for us.
The dilemma is a perennial one–vote Democrat and they’ll take your vote and keep it just so long as they are slightly less bad than the Republicans. Or vote third party or don’t vote and then a Republican is more likely to win. I’ve not heard a good solution to this, which is why the Democrats are the way they are.
Maybe I need to write a post on it, but I’m not sure what people are complaining about on Citizens United. It certainly isn’t worth “SCOTUS just completed the process of making corporate America into sociopathic virtual voters.”
The law in question made it illegal even for non-profits to make advocacy speech. It would have meant for example that if this blog were organized as a non-profit to pool funds, that we would be criminals to advocate for a candidate.
See for example “Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.”
And the Supreme Court upheld 8-1 the disclosure requirements, so you can tell exactly which corporations are spending what money where.
imagine the difference it would make if “progressive”, “activist” Dems threw their weight and dollars behind actual progressive Dems during primaries. we need better Democrats in office, not more blue pathetic dogs.
Sebastian: Oh gee, I don’t know, because now GE, Blackwater, Montaso, Goldman Sachs, etc, can all just call up the advertisers they have on retainer, and churn out slick ads for the politicians they want? Political donations mostly get spent on ads and ad consultants and crap now, so this is just effectively making bribery even more legal. “Oh, remember that $20 million we spent last election on the ad campaign that helped you win? Vote our way, or next election, we’ll use our spare change to kill you in the primaries and the general.”
Also, because it’s a BAD RULING. Corporations are not “people”, and have no “free speech rights”. Period. For profit corporations are legal fictions designed to hide the people behind the company from liability should the company crash or brea they law. Nothing more. Which has valid uses, but in NO way makes them “people”.
Here’s my model of American politics:
Imagine that the public knows absolutely nothing about policy, and makes their decisions about which party to vote for based solely on how well they personally have done over the last couple of years. If they’ve done well, they vote for the incumbents. If they’ve done badly, they vote for the other guys. The policy positions of the parties are perfectly irrelevant to the election.
Meanwhile the parties themselves have a policy platform developed essentially at random, with the only rule being that while in power they don’t change it much, and while out of power they make changes to it basically at random.
Now, if the party newly elected doesn’t seem to be getting a handle on things, they’ll get kicked out at the next election and the other party will get another chance (having randomized some of their policy) and so on until someone gets a grip on things.
As far as I can tell that is exactly how the public operates and policy, personality, and everything else has very little to do with the outcome of elections. And while it may seem crazy, it is also a process that will eventually work, and not necessarily any worse than any other system. It’s basically the “random walk” method of government – keep randomizing policy until you find one that works.
I think the dysfunction in recent years has been that the rules for how parties should act have been broken: the Democrats don’t follow their own platform once elected, and the Republicans don’t change anything while they’re out of power. That’s a dangerous situation, but perhaps all we need is a few more cycles for everyone to remember that the game we are playing is about getting things done and not actually about ideology at all.
Punish the innocent and guilty alike? You’re beginning to sound like a Tea-bagger!
“Also, because it’s a BAD RULING. Corporations are not “people”, and have no “free speech rights”. Period.”
Corporations are made up of people with free speech rights. Corporations are instrumentalities of people with free speech rights. And in fact most actual political organizations are corporations. Amnesty International shouldn’t be allowed to publish political views? The ACLU?
And what about the New York Times, or ThinkProgress? Should they be banned from publishing political views which could be construed as supporting a candidate?
Because if you want to talk about really bad constitutional doctrines–the idea that reporters have more free speech rights than I do is twice as much crap.
Sebastian: Y’know, abstract debates about who should have more rights than who are all well and good, but the practical effect of this ruling will be to allow corporations to literally buy political contests. Period. That’s what the entire thing is about. And I’m not talking about “interest corporations”, I’m talking about “Billions of dollars a year in income” corporations, like Haliburton, GE, AOL, Microsoft, General Dynamics, etc.
Make up all the sympathetic corner cases you want, but the entire case was set up as a front to get exactly this ruling, to allow big corporations to buy elections. Period.
“Make up all the sympathetic corner cases you want, but the entire case was set up as a front to get exactly this ruling, to allow big corporations to buy elections. Period.”
It’s OK. The majority clearly signaled that the individual contribution limit is up next, so candidates can always raise billions of dollars themselves to combat the corporations. Problem solved!
The nice thing about what Thullen said is that it reminds Democrats that Obama’s most important contribution so far has been to keep McCain from being the one appointing Souter’s replacement.
“Corporations are made up of people with free speech rights. Corporations are instrumentalities of people with free speech rights.”
No, they are not. Corporations are creations of the state in order to further state goals. They have no natural rights because they are not natural creations. They are given special rights and special legal protections because those rights and legal protections serve an end of the states.
Let’s assume that politicians, whether Dem or GOP, are interested in nothing but their own re-election. With me so far?
Good. Now, here are two possibilities:
1) House Dems who balk at passing the Senate bill as is are accurately judging the mood of their constituents; or
2) They’re not.
Take the second possibility first: that they are MISjudging the reaction of their constituents. I’m willing to entertain this possibility, despite the fact that some of them may be long-time incumbents — and you don’t get to be a long-time incumbent by misjudging what you can sell to your constituents. In this case, those House Dems are honest but wrong. Not intellectually honest, necessarily, but politically honest. They’re doing what they think the plurality of their constituents want them to do; they’re simply misjudging what that is.
The first possibility amounts to this: those House Dems are politically honest and right. They’re doing what their constituents actually want them to do.
Please note that both cases imply the House Dems are “politically honest”. The difference is whether they’re right or wrong about their constituents.
Now, all this would be irrelevant if it did not apply to the Republicans, who uniformly oppose HCR, just as well. Am I suggesting that House and Senate Republicans are “politically honest”, too? Yes, I am. In the very narrow sense of “politically honest” that I’m using here, all these congresscritters are honestly trying to get themselves re-elected, and honestly making the best guess they can about what will GET them re-elected. By their constituents.
See where I’m going with this?
I’m saying that the problem is the stupidity of the electorate, not the stupidity of the politicians. Name any Republican (except Cao of Louisiana). He or she voted against HCR. Now, tell me how likely that Republican is to lose re-election because of it. It would be nice to think that a bunch of Republicans will lose their seats because they opposed HCR. It would modify my judgement that (the plurality of) their constituents are stupid.
What’s more likely is that a bunch of Dems will lose their seats because they honestly tried — but failed — to gauge how much their constituents really wanted the Senate bill to pass.
Yes, I know: it’s bad form to call voters stupid. If you’re signed up for this government-of-the-people-by-the-people-and-for-the-people thing, objective stupidity counts for nothing. If a plurality of some politician’s constituents want something that’s objectively bad for them, what’s the poor politician to do?
You can read “poor politician” two different ways, of course. In one sense, a poor politician is one who cannot persuade his constituents to want what’s good for them. But persuading people costs money, just like fooling them does, and the Supreme Court just made it easier to fool people.
So we’re probably doomed. But not because our politicians are stupid.
–TP
Sebastian: “Corporations are made up of people with free speech rights. Corporations are instrumentalities of people with free speech rights.”
This is even more disingenuous of you than usual. Are you truly meaning to suggest that every collection of individuals – on whatever terms – has the same rights as the individual members? The same duties? The same obligations? Is subject to the same punishments?
The corporation IS a legal fiction, and if you have any knowledge of our political and economic history, you know it. Prior to the Civil War, all such entities were strictly regulated & tightly controlled in every state.
And if you know those things, you also know that the “precedent” for considering corporate entities to be persons is itself extra-legal, and without basis in the Constitution.
Not that your argument wasn’t popular back in Lincoln’s day, but we’ve had an extra 150 years to observe the flaws inherent in it. If nothing else, if corporate rights flow without hindrance from the rights of the component individuals (who what, founded it? Work for it? Run it? Invest in it?), there is no argument for the protection of those individuals from personal liability for the acts of the corporation.
If you want to talk original intent, the record clearly supports the view that corporate persons have only those rights necessary for them to conduct their business, and only within the context of the conduct of their business – not in civil society at large.
The really ironic bit is that you’re making a collectivist argument…unless I’ve missed your proposal to strip individual rights from those whose rights are being expressed rightfully through their collective…. I just don’t see how you reconcile all this with a ‘modern conservative’ worldview.
The nice thing about what Thullen said is that it reminds Democrats that Obama’s most important contribution so far has been to keep McCain from being the one appointing Souter’s replacement.
just you wait.
the first SC fight is going to make the Dems performance on HCR look like a model of political courage.
they’re going to completely write the rules on how many times something can fold before it can no longer be bent.
the blue dongs will turn Reid into a Klein bottle of capitulation.
“Sebastian: Y’know, abstract debates about who should have more rights than who are all well and good, but the practical effect of this ruling will be to allow corporations to literally buy political contests. Period. That’s what the entire thing is about. And I’m not talking about “interest corporations”, I’m talking about “Billions of dollars a year in income” corporations, like Haliburton, GE, AOL, Microsoft, General Dynamics, etc.”
Darrell Issa’s Senate run anyone? There is a limit. And speaking of limits those are still in place. Further, you’re surely aware that this law passed in 2002, so at worst we’re returning to the status quo, except with more disclosure because the disclosure portion wasn’t shut down.
And you’ve never explained how your “corporations aren’t people” argument applies to the NYT, or Mother Jones, or Dateline. Are we *really* to assume that corporations can’t use money to publish the work of reporters? Under your constitutional theory it would seem that would be an example of a corporation employing its resources for potential advocacy situations and could clearly be barred. So the New York Times has no protectable free speech rights? Is that really a good policy?
(Note that the current jurisprudence doesn’t believe that, but it is the same jurisprudence that suggests corporations share most of the same rights of the individuals that make them up. So you aren’t really helped by that).
For the record, the ACLU argued against the goverment regulation in this case:
“Section 203 of the Bipartisan Campaign Reform Act of 2002 prohibits unions and corporations (both for-profit and non-profit) from engaging in “electioneering communications.” The legislative definition of an “electioneering communication” was upheld by the Supreme Court in 2003 and then substantially narrowed by the Supreme Court in 2007. In scheduling this case for reargument, the Court specifically requested briefs on whether section 203 should now be struck down as facially unconstitutional. The ACLU has consistently taken the position that section 203 is facially unconstitutional under the First Amendment because it permits the suppression of core political speech, and our amicus brief takes that position again.”
The ACLU seems right on point here. It is amazing to me that liberals on this blog and elsewhere can suggest that the First Amendment protects corporate publication and distribution of Hustler magazine and that it doesn’t protect core political speech. The reason the Supreme court is so free on the obscenity concept is that it didn’t want to come anywhere near the regulation of potential political speech. To allow Hustler while banning political advocacy would be to precisely invert the whole point of the 1st amendment.
Amnesty International shouldn’t be allowed to publish political views? The ACLU?
And what about the New York Times, or ThinkProgress? Should they be banned from publishing political views which could be construed as supporting a candidate?
No, they shouldn’t, but I’m pretty sure the law that was struck down applied only to “broadcast, cable or satellite communication.”
“No, they shouldn’t, but I’m pretty sure the law that was struck down applied only to “broadcast, cable or satellite communication.”
But that was only a matter of statute, not constitution. It has nothing to do with Nate’s argument. Are you suggesting that Nate is essentially correct, but the worst parts of his arguments weren’t actually effectuated? His argument makes no useful distinction between GM and the NYT. And the distinction I suspect he wants to make is not in the constitution. “freedom of the press” is not a special protection for a special class of people. It isn’t freedom of the PRESS (only corporations who get special government protection because they allegedly employ reporters). See here for cases showing that you don’t have to be a member of a media organization to get the freedom of the press protections.
No Sebastian, this wasn’t just overturning the 2003 law. This overturned precedent that’s stood for 60+ years. From here, “A 63-year-old prohibition on corporations using money from their general treasuries to produce and run their own campaign ads.”
That PLUS the McCain-Feingold ban on outside “issue ads” 30/60 days before the election.
They didn’t let corporations donate unlimitedly to candidates. Yet. Wait for it, they will, if they can figure out a way.
But it’s the first part that’s the most important. As I mentioned above, any giant corporation now has the “right” to spend however much they want on their own ads in races. Which is what campaign donations generally go to, so the part about not allowing them to donate to campaigns is basically gutted. Which allows corporations to directly buy elections, and further legalizes the institutional bribery that “campaign contributions” have become.
Not that unlimited corporate
bribesdonations to candidates has ever bothered “conservatives”, even though it’s pretty damn radical to allow that kind of bribery.Sebastian: If you don’t see any difference between GE or Microsoft spending $FOO billion dollars running slick ad campaigns, and the New York Times running political coverage, I don’t think there’s any point in us having this discussion, because frankly I don’t think there’s any way we can communicate, our definitions are too different.
“Which allows corporations to directly buy elections”
Really? They can buy actual votes? I didn’t see that part. Can you quote it for me?
You’re sounding overdramatic. The general treasuries thing was just a formality question. They could set up PACs if they wanted to. The Supreme Court said that it wasn’t proper to limit speech based on which form the corporation took to channel it–PACs vs. general treasury.
And you still have bothered to defend how your theory allows for the NYT to make political pronouncements.
Unless one can realistically demonstrate how a corporation can cast a vote or hold an elected office, I cannot fathom how anyone can sincerely believe that a corporate entity to be identical to a a flesh-and-blood individual.
Well, I for one am happy to run a giant, uncontrolled experiment in letting corporations spend unlimited amounts of money on influencing elections despite decades of negative experience with their actions under restricted regimes, because really, what could go wrong?
I mean it’s not like anything major went wrong the last time corporations teamed up with right-wingers to run the government of a major industrial power.
Jacob, do you believe the election law in question particularly lessened corporate influence in politics? Really?
Okay, Sebastian, whatever you say. The New York Times publishing newspapers is exactly like Haliburton spending $30 million on attack ads to take out politicians who opposed some legislation they liked. So obviously if we allow one, we must allow it all. Money is exactly the same as speech, after all, everyone knows the age old saying “One dollar, one vote.”
All this is going to do is allow the Republicans to rake in even more cash, and make the Democrats even more worthless corporate whores. In addition to Obama’s campaign turning millions of new voters out, then doing their best to turn them all off of politics for good.
Oooh, I know, why don’t we just legalize selling offices, and then use the money to
reduce the deficitgive tax breaks to the richest 1%, in the exact amount of how much they spent to buy the office?If the effects were limited to the law in question, that would be a reasonable point. Since the effects are much broader (this being a widely-framed & precedent-setting Supreme Court decision after all), the fine points of the particular law that was overturned aren’t the actual issue.
But you know that.
“Okay, Sebastian, whatever you say. The New York Times publishing newspapers is exactly like Haliburton spending $30 million on attack ads to take out politicians who opposed some legislation they liked.”
So I take it you have no argument you would like to share about the differences then? No useful thoughts on how the Constitution protects the NYT?
I can see you just want to rant. Got it.
No useful thoughts on how the Constitution protects the NYT?
Congress shall make no law … abridging the freedom of … the press….
Um, the NYT is “the press”?
The first amendment says the freedom of the press, Sebastian. The New York Times is a newspaper, which publishes news, and investigates, and is the “press”, as defined in the first amendment. The definition of “press” has expanded to include things like blogs, TV, cable TV, etc.
These are a different breed of thing than a company like, say, GE, that produced many things besides just the NBC news network and the various papers they own. Media consolidation is another entire kettle of fish, where I’m sure you don’t see any problem with one company owning a huge number of news outlets, or “presses”, broadly defined, despite the fact that does as much to weaken the POINT of the First Amendment as allowing legal fictions the “rights” of personhood, without any responsibilities to anything other than making short-term profit for their stockholders.
So where, pray tell, do you find the part of the Constitution where it says that legal fictions shall be allowed to spend as much money on propaganda for elections as they wish? Since you’re so dead-set on making generalizations based on corporations and ignoring the point.
But you just want to turn this into nitpicking about hypotheticals, rather than address the actual, wide-ranging, and practical effects this Supreme Court decision will have. Got it.
“Since the effects are much broader (this being a widely-framed & precedent-setting Supreme Court decision after all), the fine points of the particular law that was overturned aren’t the actual issue.”
Which effects are you particularly worried about. More particularly, what influence *NOT CURRENTLY AVAILABLE TO LARGE CORPORATIONS* do you believe will now be available. The corporate treasuries thing that Nate is having a fit about was already finesseable by creating PACs. Corporations already have huge back channel ties to congressman.
The disclosure requirements were upheld 8-1, so this doesn’t increase secrecy.
I’m strangely in the position of being more cynical than Nate about corporate-government ties. I think they ALREADY exist and that all this does is bring them more into the open. I don’t think this substantively changes the influence matrix of corporations and government, because I believe they are already deeply entwined. It isn’t as if we live in a world where before this ruling, the US government let GM and Chrysler go under right?
I’m actually not entirely hostile to the idea that the restrictions on speech violated the First Amendment. What I am concerned about is that the change that has just been instituted is very sharp, very radical, and that un-countered political speech by corporations has already shown itself to be quite dangerous in American (and foreign) experience, and there has been little preparation for this new world.
Now the Supreme Court has only certain instruments at its disposal, and cannot engage in fine distinctions in policymaking; but that’s all the more reason to be cautious. This sounds a lot like the arguments made against the “sharp, radical” changes of Civil Rights-era decisions, and I appreciate that fact, but I think the dangers to society as a whole from unrestricted corporate speech are genuine in a way that the fears of opponents of civil rights were not.
In the end it’s up to us how to deal with this. It’s possible that a decade from now we will look back and laugh about the worries we had, but I guess I’m just not that confident in the abilities of people to resist persuasion on television; television has a particular power that newspapers and books do not. Both amplify and spread the thoughts of one person to an audience larger than that person could reach in person, and the effect of paper media has mostly been positive. But television (to a lesser extent radio too) provides much greater amplification than a book, and has emotional effects that go beyond what a book can do, and to me it is quite apparent that those amount to a difference in kind and not just degree. Combine that with today’s hyper-corporate world, where we have (essentially) synthetic, non-human organisms programmed solely for profit-seeking and lacking the human capability for empathy and choice of action based on consequential harm to others, and I think you have the makings of a situation not anticipated by those who wrote the First Amendment. Which doesn’t mean it is obsolete, but that it requires some thought as to how to mitigate the destructive effects – for instance, the equal time rule, or public funding for factual broadcasting by entities devoted to serving the public interest and not private profit motives.
Now I am hopeful that the internet provides a new medium that greatly diminishes the amplification effect of any one voice. But I’m not an idiot – I know that for most of the population, television still holds the same power it always has. There is a quote much beloved of conservatives under other circumstances, which I did not realize until now emerged in another First Amendment case(*): “This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
I don’t buy the logic there, and maybe I shouldn’t buy it here. But if nothing else, even if we are to accept the idea that the restrictions violated the First Amendment, we should certainly not pretend that there are no dangers inherent in their removal.
“The first amendment says the freedom of the press, Sebastian. The New York Times is a newspaper, which publishes news, and investigates, and is the “press”, as defined in the first amendment..”
No you’re wrong and you didn’t read what I linked. The press is an instrumentality used by the NYT and blogs and TV stations. Freedom of the press isn’t held by some special elite. It is held by everyone. You have it too.
” shall be allowed to spend as much money on propaganda for elections as they wish?”
The whole point of a huge swath of 1st amendment jurisprudence is that the government doesn’t get into the game of deciding what is propaganda and what isn’t.
Which is exactly what I said about the press, Sebastian. But claiming that a legal fiction such as General Dynamics is a “person” with first amendment rights, or part of the “press”, is absurd.
“The whole point of a huge swath of 1st amendment jurisprudence is that the government doesn’t get into the game of deciding what is propaganda and what isn’t.”
But they went way beyond that in their ruling. Speech may be free, but media air time is an asset that is bought and sold. It went so far beyond to facts of this case to open up pandora’s box.
All those on the right who are cheering this rule as a blow in defense of free speech are sadly mistaken, no one is going to like where this ends up, not even the corporations who spend time passing laws against each other once they’ve eaten what passes for the middle class these days
The case before the USSC was perfect: a movie about a candidate. If free speech means anything, than surely Congress can’t prevent art and political speech.
This just seems to be an area where we should not want government officials having the authority to say yea or nay.
But that was only a matter of statute, not constitution. It has nothing to do with Nate’s argument. Are you suggesting that Nate is essentially correct, but the worst parts of his arguments weren’t actually effectuated? His argument makes no useful distinction between GM and the NYT.
It seems to me that one can make a case for the constitutionality of such regulation of the public airwaves, without implying constitutionality of similar regulation of private printing presses.
I mean, he wasn’t saying that the NYT should be exempt from the restrictions on buying electioneering ads on the teevee, or that GM shouldn’t be allowed to print and distribute pamphlets, right?
No that isn’t what you just said about the press, which is clear because you immediately say “or parts of the ‘press'”, which makes no sense in the sense of “press” as an instrumentality of publishing. The NYT isn’t ‘press’ either in that sense. It is a corporation that communicates using the printing press and other instrumentalities of communication that we say fall under press protections.
The 1st amendment doesn’t protect the freedom of speech for citizens and an additional special freedom for reporters and corporations supporting reporters. It has freedoms of speech and of the press which are held by everyone protected by the first amendment. You can argue that corporations are not intended to be protected, but then you run into the problem of the fact that almost all reporting systems are corporations.
You want to have it both ways. You just don’t seem to remember that the NYT *is a corporation*. It isn’t “the press”.
Corporations are made up of people with free speech rights. Corporations are instrumentalities of people with free speech rights.
But that doesn’t mean that corporate management (in a normal, for-profit corporation) speaks for the political views of shareholders. That’s the problem I see, and it’s a big one. The shareholders are united not by their political views, but by their desire to earn a return from the business activities of the corporation. For their money to be used to support political objectives, including the election of candidates, that they oppose, is simply wrong.
You know, I thought that conservatives favored judicial restraint, and narrow rulings. So it’s interesting to read the decision where the majority proclaims its utter inability to distinguish between organizations like the NRA or the Sierra Club on the one hand and Microsoft or GE on the other. Utterly bizarre. And I thought Roberts et al were such geniuses.
Sebastian, every time this comes up, you make the same arguments in favor of allowing corporations to buy elections.
Also, the difference between TV ads played on public airwaves licensed to private entities and the many many kinds of other distribution should be obvious, but you ignore that as well.
Nate, for someone allegedly capable of discerning fine distinctions, you seem to read everything that anyone who disagrees with you as saying that they are for “buying elections”.
Bernard ” So it’s interesting to read the decision where the majority proclaims its utter inability to distinguish between organizations like the NRA or the Sierra Club on the one hand and Microsoft or GE on the other.”
Apparently Congress can’t do it either. And the lack of distinctions that area is the entire basis for the obscenity permissiveness in 1st amendment jurisdiction. If you want to revisit so widely as the Hustler precedents, you might have a point. Otherwise I can’t understand how you can believe that the periphery of 1st amendment protections are strong to allow obscenity laws to be almost impossible while the very core–political speech–can be legislated without a care. It just doesn’t make sense.
“But that doesn’t mean that corporate management (in a normal, for-profit corporation) speaks for the political views of shareholders. That’s the problem I see, and it’s a big one. The shareholders are united not by their political views, but by their desire to earn a return from the business activities of the corporation.”
But for the most part corporations are spending political money to influence the government i.e. get a better return from the business activities of the corporation. You have a much better case against unions or professional associations getting involved in things that don’t necessarily track their members’ views (say the BAR association taking a stand on an inheritance tax or a Teacher’s Association taking a stance on gay marriage).
I’m not saying that money–corporate or otherwise–can’t be a problem in politics. I’m saying that regulating speech isn’t a good way to deal with it.
And contra Nate’s hyperventilating, running ads because you like someone’s politics is not the same as actually buying them a house or something.
Back to Nate, though against my better judgment: “Also, the difference between TV ads played on public airwaves licensed to private entities and the many many kinds of other distribution should be obvious, but you ignore that as well.”
You mean like the internet? Because you know that it was covered by the act, right? So you would be ok with outlawing the NYT political expression on the internet, right?
Can we agree that we’re not having an argument about free speech, but expensive speech?
Can we agree that expensive speech only works, politically, because it actually does buy voters? (If it doesn’t, what’s the big whoop?)
Can we agree that if it’s okay to buy voters with expensive speech, then it should be okay to buy voters straight up?
At least the voters would get something out of the deal, that way:)
–TP
No, we can’t agree. We’re talking about free speech in the sense of freedom, not in the sense of cost. And talking to voters is not BUYING voters.
Aside from the ACLU, which agrees with this decision, it seems that the liberal rush to abandon freedom of speech is almost complete. All it took was the perception that they’d be the ones doing the censoring.
To clarify what I said above, having now read much of the dissent (not yet the opinion itself) I am not at all convinced that there were real First Amendment issues at stake. From the dissent:
“Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. A significant and growing number of corporations avail themselves of this option; during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.”
The free speech rights of the individuals who composed a corporation were not impinged upon, nor was their right to pool their own resources in collective entities in order to speak about issues of collective concern. Their ability to use the resources of the corporation for political speech is what was at issue. One wonders what it is about a corporation that is different to, say, a public school, or a prison, that it should be permitted to divert its resources to the financing of political speech where those entities are not. Certainly it has a profit motive, but then, a public school could argue that supporting a candidate who would increase school funding was in line with its chartered purpose; a prison could argue that supporting a candidate who promised to lock up more (or fewer) people was in line with its purpose. What is different about for-profit corporations that they should be permitted to divert resources intended for investment in profit-making enterprise toward political influence? The fact that it is convenient, or their stakeholders would like them to, applies just as well to any other synthetic entity, including those that are public institutions. As a parent I might encourage my child’s school to pursue political speech to secure additional funding, but that doesn’t make it a very good idea. Those other entities are not permitted to engage in political speech because of the obvious problems with corruption and diversion of purpose from that which they were chartered for, so why are private corporations & unions different?
“No, we can’t agree. We’re talking about free speech in the sense of freedom, not in the sense of cost. And talking to voters is not BUYING voters.”
Let’s be straight here, they are buying the candidate, not the voter. Heck, why not buy both candidates – they’re all easily replaceable if they don’t play ball. the general election ends up being the freedom to choose coke or pepsi. If they want to keep their job they’ll vote as they’re told.
If that’s how you want to run things, fine – but international corporations aren’t interested in your small government fantasies.
You know, I have zero interest in arguing with people who can’t see why corporate attack ads are anti-democracy.
Rather than waste time on Sebastian’s fantasies, does anyone have any practical ideas for rolling this back?
Obama appears to think there’s some kind of legislative fix along the lines of Senator Durbin’s Fair Elections Now Act (S. 752), but, (a) public funding can’t possibly outspend big multinationals, and (b) I’m not at all sure that under Citizens United, Congress can distinguish between individual and corporate contributions when awarding matching public funds.
Frankly, I see no possible solution short of a constitutional amendment, which was a non-starter even before this decision gave its opponents this much power.
I’m stuck. Anybody?
It’s kind of funny to see how the same crowd that claims that “the bill of rights is only for american citizens” says, “limited-liability corporations have the protections of the bill of rights!”
And talking to voters is not BUYING voters.
Talking to voters doesn’t require money. I have no objection to your favorite corporation or mine merely talking to voters the way you and I can talk to voters.
As for “talk” not BUYING voters, are you freakin’ kidding me? Pfizer “talks” in multimillion dollar TV ads about the virtues of its latest boner pill. If it’s not “BUYING” customers with its expensive speech, then what the hell is it doing? If it runs a TV ad touting its favorite tame politician instead, are you suggesting it’s not “BUYING” voters in exactly the same sense?
–TP
Sebastian,
Bernard ” So it’s interesting to read the decision where the majority proclaims its utter inability to distinguish between organizations like the NRA or the Sierra Club on the one hand and Microsoft or GE on the other.”
Apparently Congress can’t do it either.
Of course they can. And so could the court, if they had wanted to. I mean, how hard is this? Profit vs. non-profit; funded by contributions and memberships vs. revenues and return-seeking investors; financial objectives vs. political objectives.
There’s a start.
But for the most part corporations are spending political money to influence the government i.e. get a better return from the business activities of the corporation.
The question is the broad effect of the expenditures. It’s one thing to lobby for, say, tax breaks. It’s another to support a candidate who favors the same tax breaks, because that same candidate also favors a lot of other things that some shareholders may not like. Indeed, they may be entirely willing to give up the tax breaks for some other goal. In other words, a candidate is a bundle of positions, and many shareholders may dislike the bundle, even if part of it appeals.
Consider someone who is strongly opposed to abortion on moral grounds. A corporation in which she holds shares spends money in support of a pro-choice candidate because he also favors some legislation that would benefit the corporation financially. WOuld such a shareholder have a right to be aggrieved? And before you tell me she should sell, remember two things: first, that she may not even know she is a shareholder; second that by the time she learns about the expenditure, if she ever does, it’s been done. Horses. Barn door.
Frankly, I see no possible solution short of a constitutional amendment …
Barney Frank was just telling Rachel Maddow that as chairman of the House financial services comittee, he’s gearing up to look for a solution from the corporate governance side, rather than the campaign finance side, of statute law. Corporations are bound by all sorts of statutes, in return for recognition as legal entities. A corporation law prohibition on specific types of spending by corporations ought to pass constitutional muster, since nobody is required to be a corporation.
–TP
In answer to Crafty’s question, these people come to mind: no doubt the foofy New Age fantasies of aging hippie baby boomers, but for all that, possibly in the same general ballpark (or at least continent) as the approach Tony P. reports from Barney Frank: change the terms under which an entity can be a corporation.
It ain’t gonna happen; the corporations already have almost all the money and power, and Congress bought and paid for. So where on earth would the leverage for such change come from?
Talking to voters doesn’t require money. I have no objection to your favorite corporation or mine merely talking to voters the way you and I can talk to voters.
Ah, but Tony, corporations aren’t physically capable of carrying on conversations with voters in the same way you or I can. Stop discriminating against Corporate-Americans! Are you some kind of an ablist bigot? I’m sure we can find some provision in ADA to shoot down your mean ‘ole ideas…
Stop discriminating against Corporate-Americans!
NV, some of my best friends are Corporate-Americans, so there!
–TP, Inc.
Barney Frank was just telling Rachel Maddow that as chairman of the House financial services comittee, he’s gearing up to look for a solution from the corporate governance side, rather than the campaign finance side, of statute law.
Good idea.
Here’s an idea, Barney:
Once a quarter the corporation announces to its shareholders that it intends to spend $X on polkitical activities in the coming quarter. It explains what specific matters are involved – helping candidate Y, etc.
Any shareholder of record on a certain date can object, and have his portion of $X paid to him, and the political budget is then reduced by the total amount of all refunds. That is, if there are a billion shares out, and the corporation wants to spend $10 million on politics, any shareholder can get a penny a share payment, paid out of the $10 million.
Note that this means the corporate political expenditures really are voluntary on the part of the shareholders. It also restrains political expenditures, since the larger the per share refund the more shareholders will demand it. Plus, it really is not particularly onerous. The information can be included in quarterly information already sent out.
How about that?
I think it’s funny, to say the least, that some folks think corporations talk to them.
Do you hear corporate voices in your heads?
Do corporations make love to you, too. Have you ever put out for a corporation? Which part of the corporation is screwing you, the marketing department or the schlub in the mailroom? Or has Rupert Murdoch shown up personally and reamed your asses, lately.
Did he whisper? Does News Corporation talk to you while it fucks you?
I doubt it. He hires liars to sweet talk you. Then Sean Hannity fucks you. You’d talk back, but your mouth is full.
Can corporations defecate? If they can talk, they must be able to go to the bathroom, too. Do they read while sit on the toilet?
Which corporation most recently sat down and read Madame Bovary?
Which part of the corporation is talking to you — the four out of the five dentists, or the fifth dentist who was just hustled out the back door and had a restraining order placed on him?
When a health insurer denies care and murders an American, is that a conversation?
Corporations are all very and good, in their place, serving me, like a hammer, or a toothpick.
I spose you think when you visit Disneyland that Goofy is a real dog and he’s, you know, talking to you.
I saw a guy dressed as an enchilada the other day on the street corner. I think HE was talking to me. The corporation he was working for was in Washington talking to Senator So and So trying to deny the guy dressed as an enchilada health coverage.
Maybe they do talk.
Jon Walker makes concrete and pragmatic proposals for fixing the health insurance bill via reconciliation. If you want to take on his substantive arguments, and argue that there are not 51 votes for the fixes he lays out, do that.
But threatening to sit on your hands unless Nancy Pelosi comes up with enough votes to pass a bill that severely shafts the actual base of the party and lacks crucial votes from the panicked closet Republicans who make up the Democrats’ apparently meaningless majority undercuts your posturing as the serious, sensible pragmatist. If every liberal Democrat got on board, the bill would still not have enough votes.
But somehow this is all the fault of Jane Hamsher and MoveOn. And publius (and Josh Marshall and Yglesias) are somehow the sensible realists, while the people at FireDogLake still fighting to get something that could actually an achievement for Dems to run on are the nihilists.
The case was about an advocacy group that made a movie about Hillary Clinton. Should everything by Michael Moore be forced off the screen before elections? Really?
Links to substantive points in my post above:
Jon Walker on the fixes by reconciliation
David Waldman on the fixes via reconciliation
David Dayen on the votes available in the House for the Senate bill
Joan McCarter on the votes available in the House for the Senate bill
Publius, you could engage the substance of the argument about how to get a health insurance bill that will give Dems something to run on — because the people you paint as wreckers in fact share your commitment to do that. Or you can continute to smear them and hold your breath until you turn blue.
Bernard: Consider someone who is strongly opposed to abortion on moral grounds. A corporation in which she holds shares spends money in support of a pro-choice candidate because he also favors some legislation that would benefit the corporation financially. WOuld such a shareholder have a right to be aggrieved?
Not if they were strongly opposed to abortion on moral grounds, because in that case, they would favor pro-choice candidates themselves.
“Bernard: Consider someone who is strongly opposed to abortion on moral grounds.”
Then why the Hell did they join NARAL?
Look, you want to make this about for profit corporations, but Citizens United was not a for profit corporation. If Congress had written the bill so that it only applied to for profits, rather than groups like the Sierra club and NRA, I doubt you could have gotten 5 votes for this decision.
If they’d been honest, and written the bill to apply only to non-profits, and NOT GE, you’d have still gotten 5 votes, but it would have been a narrow decision applying only to non-profits.
But they didn’t. And the reason they didn’t is because they didn’t want to shut up GE, they wanted to shut up the NRA. Shutting up GE is just a pretext. Congress isn’t worried about GE running political advertisements. GE IS for profit, they can be bought off or threatened. It’s the groups that actually care about ISSUES that are the thorn in the average politician’s side, because… They Won’t Shut Up.
So the campaign censors wrote an over-broad bill regulating corporate speech, in order to attack the core political speech rights of Americans, and used silencing for profit corporations as the excuse for shoving a gag in the ACLU’s collective mouth. And it blew up in their faces, and now GE can run “Vote for Scott Brown!” advertisements on election day.
Boo hoo. That’s the result of a dishonest attack on the First amendment, and a deliberately over-broad bill.
The case was about an advocacy group that made a movie about Hillary Clinton. Should everything by Michael Moore be forced off the screen before elections? Really?
Let’s all band together and explain to Sebastian the difference between movie theaters and television.
Hey, Brett, do corporations have Second Amendment rights? Why or why not? Show your work.
First, General Dynamics is not a “legal fiction”, it’s a legal fact. Quibble, I know, but you’re coming close to saying corporations don’t exist as legal entities, which is pure bunkum.
My position on all of this is that sure, obviously, corporations aren’t persons. But people that work for corporations are persons, with First Amendment rights identical to yours and mine. How are you going to constrain what people working for a corporation say, or decide whether those acts of speech were made in their capacity as employee, or in their capacity as a citizen? I don’t think you can. I think that’s a good chunk of Sebastian’s argument, although I might be wrong about that.
What I’d like to see happen is something like this: declare that corporations are NOT people, as far as First Amendment rights are concerned, and that people speaking for the corporation and paid by the corporation to speak do. With their own money. Which is all to be taxed as personal income. If that income all comes from the corporation, fine: they get taxed on a huge income at the top bracket rate.
As far as corporate donations to candidates or their campaigns, I have no problem with laws to limit that, because it’s not speech, and it’s not press. Corporations are not people, and money is not speech.
Issue ads I don’t yet have an opinion on, because I can’t think of a way to regulate or levy disclosure requirements that’s workable.
Laws are all well and good, but if they don’t have teeth, they’re ineffectual. We have a few cases of people who were extremely stupid about influence-peddling (Ted Stevens, William Jefferson, for instance) that were caught and prosecuted, but you have people who were only slightly less stupid (Friends of Angelo, Charlie Rangel, as a couple of many possible examples) getting off scot-free. Crank down on reporting violations. There are probably other things that could be done; Congree can do them.
Unfortunately, Congressional corruption is tough to regulate, because the corrupt get to vote too. But you can enforce existing laws, and the IRS can exercise more vigilance on Congressional and other government tax returns. Audit every Congressman every at least once per term? I don’t know what would work.
Anyway, to be more specific now that I’ve showered, Sebastian, the Citizens United case before the court hinged on an issue under McCain-Feingold. McCain-Feingold had absolutely nothing to say about movie theaters, so throwing in OH NOES MICHAEL MOORE as an argument is completely irrelevant.
The question was whether CU offering their anti-Clinton doc on Pay Per View ran afoul of McCain-Feingold’s prohibitions on television advertising prior to the election. Prior courts ruled that it did.
Now, frankly, I’d have been completely fine with the Supremes overruling that decision. Pay Per View is not like a commercial, and there was no reason for the law to treat it as such. I’d go even farther and say that McCain-Feingold should have been limited to licensees of the public airwaves and not to land-based cable or satellite operators.
But the Court went WAY beyond that narrow issue, in a ruling that, were you and many other conservatives not so unbelievably hypocritical it makes my head spin, would be being denounced as JUDICIAL ACTIVISM. Because that’s exactly what it was: A couple of Bush-appointee ideologues used the Citizens United case as a pretext to make a ruling on an issue of law that had nothing to do with that case.
It’s as if this same group of five judges voted to overturn Roe, then added, “Not only can you not have abortions, condoms and the Pill are also illegal kthyxbye.”
Oh, and Bernard makes some good points as regards the funneling of corporate income into things the stockholders might not agree with, without any stockholder recourse, that I generally agree with. I’m just not quite certain how you’re going to separate “political activities” from business development.
But I work for a defense contractor; there’s a lot of overlap, there. Maybe it’s different for corporations in general. All I know is that as a stockholder-employee of a major defense contracting firm, I don’t want my company spending a lot of corporate money lobbying congresscritters and in an effort to convince the government to buy things that aren’t wanted or needed, or obsolete. I’m just unsure how we’d keep that from happening, while keeping business development efforts in place.
It’s not like the old days, where you’d just take your representatives and senators out to the local cathouse for fun and games. Or maybe it is; I’m not privy to such things.
Hugo Chavez is a person.
The Venezuelean State Oil Company is not a person.
But it owns Cities Services, which is now a person.
A more powerful person than I am, in my own country.
If I were al Qaeda, I’d go legit stateside and incorporate. I’d start taking that drug money and funneling it into political advertising. I’ll bet, given the currently deplorable corruption of our demagogic political class, I could convince Mike Pence, say, to vote to establish the Caliphate right here in the United States.
The Caliphate could be a person, too.
Since the discussion has (d)evolved into one about corporations, I wonder if anyone can discuss how corporations are treated in other countries. As for Japan, I don’t know much, except this amusing note, Japanese corporate law, up until a revision a few years ago, was modeled after the Illinois Business Corporation Act of 1933, not because this was the ideal model, but because the occupation officials in charge of doing this all came from Chicago. I wonder what would have happened if they came from Delaware or Nevada…
What’s going on here? I thought this was a thread devoted to trashing Jane Hamsher, because it’s “the left’s” fault we don’t get a crappy health care bill.
And just as an aside, I don’t particularly appreciate the guttersniping about “saving lives” and using that bat on those who believe a bad bill should fail. It’s the hypocrisy of that whole “adding up the bodies” debate that always goes exactly nowhere….and I mean, where was that outrage over, say, the last 50 years?
Oops. There I go. Like I said, it goes nowhere.
So, if every state repealed their corporate law tomorrow, do they still have free speech rights? Do they even exist? Would that be an unconstitutional taking?
Brett,
Yes. There’s a difference between NARAL and GE. Now see, you understand that, I understand that, but the majority on the court spends pages explaining that it’s too stupid to understand it.
Maybe you and I could put together a PowerPoint for them. How about it?
Hey, Brett, do corporations have Second Amendment rights? Why or why not? Show your work.
Well, if you read the First Amendment, and then the Second, there’s a pretty clear distinction between the two that can be made, such that corporations can have 1A rights but not 2nd.
Interesting contrast between Sebastian, who’s trying to convince people, and Brett, who’s just here to rant and probably helping the other side more than his own. I don’t understand how years ago I used to get the two mixed up.
Ugh: Are you saying corporations can’t form militias, or are you saying that the Republican expansive reading of the second amendment doesn’t apply to fictional entities rendered legal “persons” by crappy Supreme Court decisions?
Can we quarter troops in the homes of corporations then? And shouldn’t they have the vote, by the 14th amendment? (Not that they need it, what with buying candidates and all, but)
I’m thinking Posted by: Phil | January 22, 2010 at 07:57 AM nails it.
Nate: I’m just saying that the second amendment is pretty clearly limited to “people”, and the first amendment is not, except for the right to peaceably assemble. So if you want to make an argument on the text of the amendments alone, there is a pretty easy one to be made.
Further, there are things corporations cannot do and are not counted for, that natural persons are, even under SCOTUS precedent treating corporations as “persons” for certain purposes, that could might provide a basis for a distinction between 1st and 2nd amendments, though I am not familiar enough to say wheter such a basis exists or would be persuasive.
And none of which is to say I agree with treating corporations as persons under SCOTUS precedent, though I’m sure I do in certain respects (it seems to me the state should not be able to just confiscate property of a corporation in a manner that it wouldn’t be able to do so if a natural person held the property, for example).
When I was young, the left led the charge for a broadly construed and expanded First Amendment, eschewing even any remote limitation that might have a chilling effect on free speech. The thinking then, on the left, was there are no “good” or “bad” ideas, only ideas and these ideas, in a free society, would acquire what weight they may have by how society received and reacted to them. That McCain-Feingold had and has serious First Amendment problems was evident from day one, and any person reasonably knowledgeable of constitutional law knew this.
Sebastian is making two points that have yet to be addressed substantively and in way that could be applied in a principled, predictable manner, as the law and the Constitution require. First, he makes the point that the NYT, GE and the Sierra Club are all corporate entities (Moore produces his movies through a corporate vehicle as well–virtually no economic activity is performed outside of some class of corporate entity) and that no court or statute can meaningfully distinguish between one class of corporate entity and another for purposes of deciding who gets to speak and when. Second, he makes the larger point that the very idea of the courts regulating who can say what and when has been, traditionally and under the large body of First Amendment law, a constitutional anathema.
There is a third angle here as well, for those who would ‘lawyer’ a fix. Tony P wrote:
A corporation law prohibition on specific types of spending by corporations ought to pass constitutional muster, since nobody is required to be a corporation.
A third widely held constitutional rule is that, absent exceptional circumstances, the state cannot condition the exercise of one generally available right, i.e. the right to participate in the economy, with the forced waiver of fundamental right, i.e. the right to free speech.
When I was young, the left . . .
Stopped reading here.
abstract debates about who should have more rights than who are all well and good, but the practical effect of this ruling will be to allow corporations to literally buy political contests. Period.
You are correct sir.
The Sierra Club has 750,000 members, and is probably one of the largest and most influential special interest political action groups on what could be sort of construed as “the left”, if you squint.
In 2009, they spent $370K on lobbying.
Here is a list of the top spenders in Congressional lobbying in 2009.
The annual lobbying budgets for the high rollers range from $10M for Altria to $65M for the Chamber of Commerce.
There is precisely one entity in that list — the AARP — that is not either a corporation or a representative of corporate interests.
My House Rep spent $121,000 to win his seat in 2010.
The *most expensive* House race in 2010 was NY23, which cost $2.5M.
If you can spend $10M bucks, it’s highly likely that you can buy a couple of House seats.
Try and tell me that’s not true with a straight face.
Who has the money to do that? Corporations have the money. They have the money because they exist specifically as a way to accumulate wealth.
The free press, NYT issue is an interesting one because the actual presses are, in fact, generally owned by corporations.
Likewise, the fact that many activities that we would not like to see limited — for example, those of either the NRA or the ACLU, depending on your taste — are carried out by corporations.
However, we’re able to make useful legal distinctions between for-profit and not-for-profit corporations now. We’re able to distinguish between corporations established specifically for political action, and those not. We’re able to distinguish between corporations engaged in activities we recognize as “the press” and those that are not.
We’re even able to make legal distinctions between political speech and commercial speech.
So I imagine, if we really put our minds to it, we could find a way to protect the editorial page of the NYT even if corporations were not granted first amendment rights.
The problem with the SCOTUS ruling is not that it fails to prevent corporations from doing what they can already do anyway.
The problem is that they can already do it in the first place.
The US is well on its way to being a de facto oligarchy operating for the benefit of the folks who own corporations.
And yes, it’s true that “the folks who own corporations” are to some degree you and me. But for pretty much anyone reading this, the level of ownership and control that “you and me” have is noise.
Utter and total noise.
If you are interested in economic disparity in the US, the real action is not in income. The disparity of ownership of fungible wealth is greater, by an order of magnitude.
The ruling sucks, because it simply reinforces a situation that *already sucks*.
As interesting as Citizen’s United vs. FEC is, I’m personally not familiar enough with the specifics to argue that. As a principle, if money is speech, then nearly everybody is essentially mute by comparison to for-profit businesses.
To derail this conversation back to the original topic:
publius: Why do you believe the Senate bill could easily (!) be improved after it is passed?
Could it not – just as easily – be made worse by the same mechanism?
Is there reason to believe President Barack “I didn’t campaign on the public option” Obama will demonstrate any leadership on this issue?
The decision to allow Joe Lieberman to keep his Homeland Security chairmanship has had the opposite effect of what (D) leadership promised. Lieberman has personally stood in the way of historic legislation. I suspect that Lieberman’s free pass emboldened Ben Nelson — if defection carries no political cost, there’s no reason not to hold out for a sweetheart deal.
It seems to me that the illusion of centrism has done more harm than good. Democratic leadership has watered down major initiatives and gotten nothing for liberals in return (half of a stimulus, relocate the Guantanamo Bay prison rather than closing it, weakened health care reform). Do you seriously propose that liberals should surrender just once more to Lieberman &c?
If you want Liebermancare to pass, go talk to the Blue Dogs. Let the White House put pressure on them.
A third widely held constitutional rule is that, absent exceptional circumstances, the state cannot condition the exercise of one generally available right, i.e. the right to participate in the economy, with the forced waiver of fundamental right, i.e. the right to free speech.
IANAL, but it seems to me that “generally available” rights apply to people. Corporations are constructs that are afforded some of those rights (according to my understanding) as necessary to allow them to function as participants in the economy (as extensions of people, who have the right of said participation). So I don’t see how this mechanism for people to participate in the economy necessarily has to be a mechanism for people to exercise their other rights, which they are free to exercise individually regardless of the limits placed on corporations.
A third widely held constitutional rule is that, absent exceptional circumstances, the state cannot condition the exercise of one generally available right, i.e. the right to participate in the economy, with the forced waiver of fundamental right, i.e. the right to free speech.
I thought that rule was that the State cannot condition the grant of benefits, like, say, welfare or social security, on an individual giving up a fundamental right, like free speech. For example, the state cannot condition the receipt of food stamp on the recipient agreeing not to criticize the government (or giving up the right to vote).
Ugh, the principles are related, and you are correct up to a point. The circumstances under which a waiver of a fundamental right can be a condition for the excercise of another right are very limited and circumstance-specific. Some examples would be commercial air travel or attending a class. Both of these allow limited speech restrictions and only for the duration of the flight-related activities or the class.
HairShirt–rights are not limited to natural persons. They extend to corporate entities, except where by specific limitation and context, only natural persons are granted a right, e.g. to vote or to bear arms (no, corporations can’t bear arms, join the militia or form a militia because a militia, as understood circa 1789 was the local citizenry combining for the common defense). This fixation on corporations is a bit of a rabbit trail anyway. General partnerships and unincorporated associations can accomplish the same economic end as a corporate entity, the only difference being unlimited vs. limited personal liability. If the NRA dissolved tomorrow and reconstituted as an unincorporated association, it would simply be a group of citizens agitating for a particular agenda.
Phil–that’s ok. I used a lot of big words.
If corporations are now people with free speech rights do they also acquire the same liabilities that ordinary citizens face?
If so, fine. Stockholders are now liable for any judgments the civil courts rule against the corporations they own stock on based on their share of the companies outstanding stocks.
Or do corporations want to have it both ways?
This fixation on corporations is a bit of a rabbit trail anyway.
Cherchez l’argent.
You may have used big words, but you didn’t really say much.
First, he makes the point that the NYT, GE and the Sierra Club are all corporate entities . . . and that no court or statute can meaningfully distinguish between one class of corporate entity and another for purposes of deciding who gets to speak and when.
We can certainly distinguish between them in the tax laws, so I’m not sure what’s holding you up.
Davebo, corporations have always been about having it both ways. In 1911, Ambrose Bierce defined a corporation as “An ingenious device for obtaining individual profit without individual responsibility.”
Or do corporations want to have it both ways?
Davebo, corporations have always been about having it both ways. In 1911, Ambrose Bierce defined a corporation as “An ingenious device for obtaining individual profit without individual responsibility.”
Actually, one step further is the Limited Liability Company.
Taxed like a partnership. Liability limited like a corp.
do they also acquire the same liabilities that ordinary citizens face?
No, they do not.
Stockholders of corporations are shielded by the doctrine of limited liability.
Within some limits, officers and other agents of corporations, likewise.
And, of course, the corporation itself has no corpus to habeas. So, it too is exempt.
In general, sanctions against corporations are limited to fines. In theory, the corporate charter can be revoked and the corporation liquidated, but that doesn’t really happen very often.
Can anyone think of an example of a corporation having its charter pulled as a punishment for malfeasance?
Or do corporations want to have it both ways?
Corporations, not being natural human persons, or natural any kind of persons, have no desires or wishes of any kind.
They do, however, in fact *have* it both ways, to the benefit of the folks who own them.
Let’s really start treating corporations like persons: If they’re found guilty of criminal or civil wrongdoing, they have to refrain from economic activity for what would be the duration of their prison sentences if they were individuals. That sound OK to everyone?
“Should everything by Michael Moore be forced off the screen before elections? Really?”
Yes, and any other time, but I dislike him and Borat about equally.
Let’s do something even simpler.
Let’s recognize for-profit corporations as a useful vehicle for accumulating capital. Let’s limit stockholders’ risk to what they have invested in the corporation. Let’s let corporations own real property and enter into contracts with real persons and other corporations.
And let’s leave it there.
Corporations are not people. They are not individual people, nor are they some kind of aggregation of the individual people who participate in them as owners or employees.
For profit corporations are useful legal entities, distinct from the human persons that participate in them, that exist to encourage the accumulation and employment of capital. That’s an enormously useful thing, and it should end there. They do not deserve, and ought not have, the rights that properly belong to natural human persons.
“First, he makes the point that the NYT, GE and the Sierra Club are all corporate entities . . . and that no court or statute can meaningfully distinguish between one class of corporate entity and another for purposes of deciding who gets to speak and when.
We can certainly distinguish between them in the tax laws, so I’m not sure what’s holding you up.”
I don’t think you’re paying very close attention to even your own argument.
The NYT is a for-profit corporation. If we are making the classifications it would be GE and the NYT in the “for profit therefore has no first amendment rights bucket” with the Sierra Club and the NRA in the “not for profit therefore has first amendment rights” bucket. Since you’re arguing against that result, I don’t see how you believe that your proposed method helps.
If you want to have some elaborate scheme where we somehow pretend that the NYT is a non-profit, it would be nice if you actually showed how it worked instead of continually suggesting it is obvious–which I take in this instance to mean that you have no functional idea how it would really work.
Further I’m REALLY resistant to some mess where we pretend that journalists/media empires have special 1st amendment rights. The idea that hilzoy’s, or katherine’s, or andy’s reporting wouldn’t be protected because they are bloggers with other jobs strikes me as pure garbage. It strikes me as functionally silly to get worked up about how powerful corporate donations could be without being far more worried about how the owners of the NYT and Rupert Murdoch collectively get to set the agenda at least as much as Microsoft and GE combined. And any special reporter exception is just going to give them even more power–while taking it away from the rest of us.
I don’t think you’re paying very close attention to even your own argument.
The NYT is a for-profit corporation. If we are making the classifications it would be GE and the NYT in the “for profit therefore has no first amendment rights bucket” with the Sierra Club and the NRA in the “not for profit therefore has first amendment rights” bucket.
Since none of this is my argument, I’m just going to ignore you.
The idea that hilzoy’s, or katherine’s, or andy’s reporting wouldn’t be protected…
Dude, why you treat me like a stepchild?
“Can anyone think of an example of a corporation having its charter pulled as a punishment for malfeasance?”
Arthur Andersen had to give up its CPA license because it was a convicted felon…
(Technically the concept was that convicted felons weren’t allowed to audit public corporations and it gave up its license)
The conviction was overturned on jury instruction grounds, but not on corporations can’t be convicted of fraud grounds.
But for grins, Sebastian, try to a) refrain from telling people what they think JUST THIS ONCE, and b) consider that GE, the NYT, the Sierra Club and the NRA can all exercise both their speech and press rights by, for example, publishing a magazine, newsletter or other periodical, and nobody can say “boo” about it.
“For profit corporations are useful legal entities, distinct from the human persons that participate in them, that exist to encourage the accumulation and employment of capital. That’s an enormously useful thing, and it should end there. They do not deserve, and ought not have, the rights that properly belong to natural human persons.”
Russel. So what about the NYT? No first amendment rights for them? If you are going to make exceptions for them, does Microsoft get it for running MSNBC? GE for NBC? Are you going to argue that there ought to be extensive and constant court review of what counts as ‘reporting’ and what doesn’t? Are you willing to reopen the Hustler decisions since if corporations don’t have 1st amendment rights vis-a-vis politics they certainly don’t have the more peripheral rights near obscenity. Or do you think that the 1st amendment isn’t really about protecting political speech and is *more* concerned about protecting things in the obscenity zone (pun deliberately not omitted).
I think russell has arrived at the destination that my previous comment was headed towards. I’m at the point where discussions of what the law allows have become disconnected from what is right or wrong (or, maybe more appropriately, what is functional or disfunctional). I don’t see why the law should allow for-profit corporations (or partnerships or associations that are for-profit) certain rights. They exist for specific purposes and should only have the rights necessary for those purposes.
Not being a lawyer, discussing this with lawyers, basing their arguments on laws that seem to me to be completed f**ked, has started to feel like discussing moral issues with fundamentalist Christians who base their arguments on literal interpretations of the Bible.
I should add that I’m not trying to dismiss the law completely and its application in court rulings. But, in this case, I’d go back to Phil’s comment this morning. The court didn’t need to rule as broadly as it did to apply the law properly, so they wreaked havoc unnecessarily AFAICT.
Phil: “Since none of this is my argument, I’m just going to ignore you.”
I’m so deeply surprised at that response.
I’ll leave it to the other readers to decide if I deeply mischaracterized your argument in some mysterious way or if this is another in your long line of rants where you beat a hasty retreat from actual discussion if anyone calls you on specifics.
“Not being a lawyer, discussing this with lawyers, basing their arguments on laws that seem to me to be completed f**ked, has started to feel like discussing moral issues with fundamentalist Christians who base their arguments on literal interpretations of the Bible.”
It is even more frustrating when they are both. However, the underlying question and answer is when did wee start recognizing corporations as people? I am not sure but it wasn’t a Constitutional recognition for sure.
Sebastian, I can’t speak for russell, but I would say, with regard to the NY Times, that they shouldn’t be unlimited in their ability to purchase commercial time on the public airwaves to campaign on behalf of politicians any more than GE should. If GE wants to publish a newspaper that I would have to buy to read what they have to say, they can have at it.
“Russel. So what about the NYT? No first amendment rights for them? If you are going to make exceptions for them, does Microsoft get it for running MSNBC?”
In addition to the problem of equating corporations with persons, the courts have equated speech with spending. One thing is not like the other.
However, the underlying question and answer is when did wee start recognizing corporations as people?
At different times for different “rights”.
But, in general, following the Civil War.
In addition to the problem of equating corporations with persons, the courts have equated speech with spending. One thing is not like the other.
Bingo. Thank you for clearing the air, Sapient.
“One dollar, one vote” is the real issue here.
I feel like I’m being forced into a two step where the argument shifts to another base every time I try to focus on specifics. So I’m going to list the various points of contention as I see them:
A) Corporations aren’t people argument (so they don’t deserve 1st amendment protections)
Objection–lots of organizations that we want to have speech rights are corporations–Sierra Club, NRA, NYT.
When I make the objection we seem to shift to
B) non-profits should be protected but not for-profits.
Objection–you still haven’t fixed the problem with the NYT or any of the other major reporting outlets.
this in a couple of cases led to
C) the non-profit/profit thing was just a red herring, I was really talking about printed paper objects.
Objection–the only basis I know for that in the Constitution is the dubious-to-me public regulation of airwaves argument. It was based on the idea that government had to regulate TV and radio transmissions because of interference problems. The jurisprudence on that pretty quickly evolved to avoid content-based restrictions, and to focus on interference based restrictions.
This third argument seems even worse than the others. The law in question regulated the internet, so it would have banned internet political communications of say the NYT. It also would subject bloggers to FEC inquiry about where they got their money. Seems like a cure worse than the disease.
Pay-per-view isn’t an interference based transmission.
Also, content based inquiry sucks. Do we really want a court case, brought by fundamentalist Christian groups, against the NOVA series for putting on a documentary about global warming on the basis that it was de-facto issue advertising?
Do you have no imagination about how this tool could be used for evil?
So what about the NYT?
Off the top of my head, I’d say it should be possible to distinguish between the right for a natural human person to engage in speech through a medium, and the ownership of the medium itself.
So, frex, it seems, to me, that it should be pretty straightforward to say that you cannot pass a law limiting what David Brooks, or Paul Krugman, or any given reporter, can say on the pages of the NYT, without having to grant 1st Amendment protections to the NYT itself as an entity.
Ditto for any other form of print media, TV, radio, blogs.
You should be able to shut down the NYT for not paying it’s bills. You should not be able to shut down or otherwise penalize the NYT for printing protected speech.
The obscenity issue simply turns on whether the speech is protected or not, not on the rights of whoever owns the printing press.
No doubt there is some reason why this simply will not work. If so, please enlighten me.
Russell, your formulation is what the Supreme Court just did. It said that individuals can, if the corporation allows, use the money and tools of the corporation to get their political messages out.
So either your fix doesn’t work, or you aren’t arguing with the Supreme Court decision.
Actually I thought of another possibility.
You could be suggesting that reporters have special first amendment rights that regular citizens don’t have. (Which comes back to the regulating hilzoy question).
I’ll leave it to the other readers to decide if I deeply mischaracterized your argument
Well, let’s begin with you quoting where I said that GE and the NYT should have NO First Amendment rights, rather than addressing the narrow issue of spending corporate money — which belongs to the shareholders — on political campaigns.
in some mysterious way or if this is another in your long line of rants where you beat a hasty retreat from actual discussion if anyone calls you on specifics.
Oh, Sebastian. Just for this I must devote my remaining free time today to seeing if you can once again be made angry enough to completely lose track of with whom you’re arguing and start attributing quotes to the wrong posters willy-nilly. What fun we’ll have!
Oh, btw, I take it that in the wake of this ruling your objections to both a) judicial activism and b) labor unions using their dues to engage in political activity are both no longer operational?
Do you have no imagination about how this tool could be used for evil?
Do you really welcome our coming oligarchy?
Russell, your formulation is what the Supreme Court just did.
No, I don’t think so.
The court ruled that Citizen’s United should have been allowed to air a political movie on a cable video-on-demand channel during an election cycle.
The analogy in the NYT example would be not if Citizen’s United was enjoined from showing the film, but if the cable channel was.
My personal opinion, expressed here several times before, is that not-for-profit corporations organized for the purpose of political advocacy are perfectly fine, *with the caveat that they be made up of, and be funded by, natural US persons only*.
In my opinion, those organizations deserve First Amendment protection, because they are, in fact, exactly aggregations of individual natural human persons who are entitled to 1st Amendment protections.
So, for example, assuming that the membership and funding of Citizens United is 100% from natural US persons, CU should have been allowed to broadcast the movie.
For-profit corporations, not so, and so they do not deserve those protections.
The legal infrastructure exists today to make these kind of distinctions. They’re easy to understand and enforce. They protect the political speech of natural US persons and do not extend it to any other kind of person.
I don’t see that it’s rocket science.
I’ll be especially interested in watching you back up your claim that I think corporations should have First Amendment rights with my statements upthread that Citizens United should have been allowed to offer their movie on PPV and that McCain-Feingold should not have applied to non-broadcast entities.
If it’s as stupid as I’m expecting, it’ll make my day.
Phil, the problem is that you make throw away comments like:
“[quoting mckinney]First, he makes the point that the NYT, GE and the Sierra Club are all corporate entities . . . and that no court or statute can meaningfully distinguish between one class of corporate entity and another for purposes of deciding who gets to speak and when.
[your part]We can certainly distinguish between them in the tax laws, so I’m not sure what’s holding you up”
And THEN you try to pretend that you have been talking all along just about printed text as if it was the only important part of your argument.
Now if you think that the printed text/broadcast distinction really is the only thing important here you *could have said* “The profit distinction is irrelevant, the only important thing is that first amendment rights are for printed things” or whatever else you think the distinction really is (I’m reduced to guessing because you are notoriously unclear about what you think the important issues are and you seem to shift ground in between nearly every post).
You didn’t do that. You suggested that you thought the distinction was important, and that the government routinely makes it.
When I pointed out that the NYT was a for profit entity, you suddenly act as if you had never been talking about such distinctions and/or as if they were never important.
Arguing with you is frustrating because you throw in short, off the cuff bombs, and then when someone is idiot enough to take them seriously you pretend that you didn’t mean it.
You seem to be stating that the government distinguishes between profit and non profit all the time, so the NYT issue isn’t a problem.
So, in the quoted passage, did you mean to suggest that the profit/non-profit was important? Or were you making some useless comment about the fact that the IRS has a non-profit category? Or what?
BTW I suspect your 2:18 is missing a n’t in one of the words. But with you I certainly shouldn’t guess your meaning.
I would say, with regard to the NY Times, that they shouldn’t be unlimited in their ability to purchase commercial time on the public airwaves to campaign on behalf of politicians any more than GE should. If GE wants to publish a newspaper that I would have to buy to read what they have to say, they can have at it.
This argument and Russell’s keep missing the point. No matter how you rig the rules, short of a blanket ban on any kind of corporate speech, you have government picking winners and losers. Ban political speech by a for-profit corp? No problemo, amigo. Sebastian (who I suspect is a transactional guy) will set up a stand-alone non-profit to make the movie or buy the add.
Likewise, prohibiting the NYT from advertising elsewhere while permitting it to make endorsements, spin news or whatever or allowing GE to start its own newspaper is even worse. What you are saying is, if a person or a corporation has enough money, they can start their own media outlet and be free of McCain-Feingold. But the small company is forbidden to buy a half page in a newspaper. Talking about oligarchies.
The whole thrust of constitutional development beginning in the Warren era is that any limitation on a fundamental right must be very narrowly focused, limited in application and only for a compelling state interest (or maybe even a higher threshold). Otherwise, what should be a bright line right understood as such by all becomes a series of grey areas. Underpinning this thrust is that the republic will not fail if more voices are heard, even evil corporate voices. Your counterparts on the hard right would do to Hustler what you would do to GE. Both are equally wrong, even if it could be demonstrated that Hustler corrupts the minds of some and GE corrupts the politics of others.
And THEN you try to pretend that you have been talking all along just about printed text as if it was the only important part of your argument.
No. I did not. I used that as a starting point for ways in which corporations of all kinds can exercise the right to free speech and a free press.
If you want to engage me like you’re an adult, fine. If you’re just going to rely on your tired you-don’t-understand-your-own-argument shtick, I have other things to do.
Russell:
This coupled with your previous post, makes distinctions I don’t think I understand, and/or that I don’t think can be made into laws that make sense.
I’m trying to break down where I’m confused. So please bear with me.
“The analogy in the NYT example would be not if Citizen’s United was enjoined from showing the film, but if the cable channel was.”
In your previous comment you seemed to be saying that it was ok for the NYT to use corporate money to pay Krugman to write political essays and publish them using corporate printing presses, and corporate websites, additionally paying the salaries of corporate editors, typesetters, and web designers.
Citizens United (a non profit) paid people to create a documentary (analogous to paying Krugman to write an essay). Some of their funds came from a for-profit corporation. They then paid for it to be broadcast (using corporate funds to publish).
Which part holds the distinction you want to make? Is it all ok if the NYT (a for profit corporation) does it all, but somehow not allowed if they did the exact same thing by giving money to a non-profit? That seems weird if you’re worried about for profit corporations getting involved.
Ban political speech by a for-profit corp? No problemo, amigo. Sebastian (who I suspect is a transactional guy) will set up a stand-alone non-profit to make the movie or buy the add.
In Russell’s Perfect World, the only people who can contribute to political campaigns or have their political speech protected are natural US persons or not-for-profit corporations made up of, and funded exclusively by, natural US persons explicitly for the purpose of political advocacy.
The NYT as owner of the press, or MSNBC as owner of a broadcast license, or the owner of a radio broadcast license, would not be entitled to first amendment guarantees of free speech, however Congress would not be allowed to pass any law hindering their operation because of their presentation of any act of protected speech.
NYT doesn’t pay their rent? Close them down.
NYT runs an article, an editorial, or a paid political advertisement from a protected buyer, and you don’t like it? You can’t touch them.
So, Sebastian Holsclaw, natural US person, can buy whatever air time he can afford. Sebastian and 100 of his buddies can organize themselves into a not-for-profit political advocacy corporation and pool their resources to buy even more time, as much as they want.
Again, in Russell’s Perfect World, they can buy their ad time during election cycles if they so desire. If they can afford it, they can buy every minute of air time in every media market in the US and run an ad that does nothing but call Barack Obama an insane poopyhead. They can run it on election day.
But no other entity can engage in or fund political speech.
Natural US persons, only, individually or in any not-for-profit combination.
This would, BTW, exclude endorsements and/or advocacy from the “editorial board” of newspapers, magazines, and broadcasters.
I’m OK with that. If you want to engage in political speech, sign it with your name.
Man, I just love this faux-naive idea coming from our resident conservatives that this is all just about more voices being heard, maaaaaaaan, rather than the corrupting influence of organizations spending disruptive amounts of money* to, essentially, buy or destroy candidates. (Or, as John Cole puts it, “Does anyone here think the Goldman boys and their friends would flinch at the notion of dumping a couple billion in advertising to save their 150 billion in bonuses? Anyone?”)
Money is power, and anybody who denies that is a fool. And sorry, but the resources of ExxonMobil to buy a 30-second spot in every commercial break on 10 channels for six months prior to an election is the kind of distorting power over the electorate that nobody in their right mind should favor.
*And, again, this is money that rightfully belongs to the shareholders. Barclays, in the UK, is the majority institutional shareholder in a large percentage of Fortune 500 companies. What if their political agenda differs from that of the board of directors? Should the BoD get to spend their money that way? Why?
“No. I did not. I used that as a starting point for ways in which corporations of all kinds can exercise the right to free speech and a free press.”
The whole of your comment there was “We can certainly distinguish between them in the tax laws, so I’m not sure what’s holding you up.”
That isn’t a starting point. That is a curt dismissal. And it is a dismissal that glosses over the whole problem of having the government conduct reviews of what counts as permissible and impermissible political speech.
I’m OK with that. If you want to engage in political speech, sign it with your name.
No more pseudonymous bloggers?
“is the majority institutional shareholder in a large percentage of Fortune 500 companies”
First, the majority institutional holder is, in general, not very atcivist in running a company.
Second, it is more in the realm of the individual CEO or certain Board members to exert that influence.
Third, The reality is that even foreign corporations that often are foreign owned by something less than 100% (more than 50 by definition) often have US subsidiaries or headquarters that would be more likely to have an opinion.
Fourth, Just like Iranian candidates aren’t served particularly well by obvious US support, it would be unlikely that many candidates would be seeking the sponsorship of Hugo Chavez. So disclosure becomes the centerpiece of the reponse to this.
First, the majority institutional holder is, in general, not very atcivist in running a company.
That’s nice. What does it have to do with the question of what the Board does with their money?
Fourth, Just like Iranian candidates aren’t served particularly well by obvious US support, it would be unlikely that many candidates would be seeking the sponsorship of Hugo Chavez. So disclosure becomes the centerpiece of the reponse to this.
You are perhaps familiar with the concept of “ratfncking?” You don’t have to have a candidate seeking his support. You just have to imply that the other guy has it.
The NYT as owner of the press, or MSNBC as owner of a broadcast license, or the owner of a radio broadcast license, would not be entitled to first amendment guarantees of free speech, however Congress would not be allowed to pass any law hindering their operation because of their presentation of any act of protected speech.
Russell, this sentence falls in on itself: if the NYT is publishing an editorial endorsing a candidate, it, as a corporation, is engaging in political speech. You would ban this? Adios 1st Amendment.
Sebastian and 100 of his buddies can organize themselves into a not-for-profit political advocacy corporation and pool their resources to buy even more time, as much as they want.
And Hugo Chavez, through Lyondell-Citgo, hires Sebastian as a consultant and pays him a one time $500,000 fee. Sebastian pays his tax on the fee, keeps half and puts half into his non-profit corp. All perfectly legal. What, can’t use money paid to you by a non-citizen? Well, that’s an awful lot of US citizens who are going to lose their free speech rights.
To repeat yet again: the beauty of giving everyone the same rights (a/k/a equality under the law) is that takes all the gaming out of the system, not to mention being in line with the Constitution.
In your previous comment you seemed to be saying that it was ok for the NYT to use corporate money to pay Krugman to write political essays
Yes, I do think that’s OK because the speech is Krugman’s, and Krugman is a real live person.
I think CU’s speech should have been protected, but funding from for-profit corporations should not have been allowed.
I recognize that the Krugman example opens the door to for-profit media license holders paying real live humans to basically just parrot their point of view on their bandwidth.
More or less Fox News, or the WSJ editorial page.
But given what we have now, I’d see that as an improvement, and an acceptable risk.
What I’m after is no for-profit corporate money, no union money, no money from anyone other than real, live, human beings, involved in the political process.
That includes speech, lobbying, the whole shooting match.
For-profit corporations play a useful role in the economy. They aren’t people.
No more pseudonymous bloggers?
LOL.
As long as it isn’t a pseudonym for Monsanto, I’m good with it.
Yes, some corporations will pay someone to sit around all day and horse around online, spinning blog conversation in favor of their employer.
I can work with that. Hell, Krempasky was getting paid by WalMart when he was on the editorial board of RedState. Nothing new there.
It’s the $65M per annum in lobbying money, or the millions upon millions in soft-money corporate contributions to elections, that I’d like to get rid of.
You would ban this? Adios 1st Amendment.
Yeah, I’d ban it.
If Arthur Ochs Sulzberger, or Bill Keller, or Eddy in the mail room, wants to publish and editorial in the NYT endorsing a candidate, I have no problem.
The NYT is not a person. Sulzberger, Keller, and Eddy are.
And Hugo Chavez, through Lyondell-Citgo, hires Sebastian as a consultant and pays him a one time $500,000 fee. Sebastian pays his tax on the fee, keeps half and puts half into his non-profit corp. All perfectly legal.
Yup, and that gives Seb something less than a quarter of million bucks to change the course of US history.
To get to the kinds of levels of corporate money flowing around now, Chavez would have to hire a hell of a lot of Sebastians.
Not impossible, but a hell of a lot harder than just writing a check.
If that’s how it plays out, I can live with it.
@Slarti:
How are you going to constrain what people working for a corporation say, or decide whether those acts of speech were made in their capacity as employee, or in their capacity as a citizen? I don’t think you can.
I’m inclined to say that e.g. the Hatch Act suggests that we’re capable and indeed willing to make these sort of decisions.
“Yes, I do think that’s OK because the speech is Krugman’s, and Krugman is a real live person.
I think CU’s speech should have been protected, but funding from for-profit corporations should not have been allowed.
I recognize that the Krugman example opens the door to for-profit media license holders paying real live humans to basically just parrot their point of view on their bandwidth. ”
I still don’t understand the distinction. Do you think that films/documentaries do not count as speech? Or that there is some distinction between being a writer of a column that doesn’t protect being the writer of a documentary?
Essentially why can a for-profit corporation fund Krugman’s speech, but a for profit corporation cannot fund a movie producer’s speech?
Does your rule allow fundie groups to sue NOVA for making global-warming documentaries that air within three months of a vote if PBS get funding from corporate entities (which it very much does)?
@Marty:
However, the underlying question and answer is when did wee start recognizing corporations as people? I am not sure but it wasn’t a Constitutional recognition for sure.
More specifically than russell’s fundamentally correct answer, I am led to understand the first formal (though ironically not actually binding, although in this context that does not, alas, matter) recognition of this in the US was Santa Clara County v. Southern Pacific Railroad, which had the court reporter make passing mention in the decision’s headnote that the Court was of a unanimous opinion that corporations are people too. Other decisions following from this explicitly codified various specific rights for the unnatural things.
NV,
Thanks for the info.
Essentially why can a for-profit corporation fund Krugman’s speech, but a for profit corporation cannot fund a movie producer’s speech?
A for-profit corporation can both pay Krugman’s salary and a movie producer’s salary. IMVHO.
A for-profit corporation should not be able to fund a political advocacy group, give any money to any political campaign or party, engage in lobbying of any member of Congress. Also IMVHO.
Is it possible that, in Russell’s Perfect World, a for-profit corporation will exploit their employment of an essayist, movie producer, or other person engaging in public speech to promote their point of view?
Yes, it’s not only possible, it’s virtually inevitable. Russell’s Perfect World is not, in fact, perfect.
I can live with that. It would still be a hell of a lot better than what we have now.
The distinction is this:
1st Amendment guarantees apply to natural human persons.
They do not apply to for-profit corporations.
Why? Because corporations are not people.
Is it possible for all of the details to fall into place perfectly and neatly?
Why no, it is not.
I’d just like the starting point of the discussion to be the recognition that FOR PROFIT CORPORATIONS ARE NOT ACTUALLY PEOPLE, and that THE CONSTITUTION OF THE UNITED STATES IS INTENDED TO SAFEGUARD THE RIGHTS OF PEOPLE, and then proceed from there.
“A for-profit corporation can both pay Krugman’s salary and a movie producer’s salary. IMVHO.
A for-profit corporation should not be able to fund a political advocacy group, give any money to any political campaign or party”
I guess I just don’t understand how this distinction helps the underlying problem you want to get at. Under your formulation the corporation can hire the producer for the project of making a political movie and that is ok. So why can they not give the exact same money to a group to hire a producer for the project?
And in fact, your way seems worse. Under the Supreme Court decision the disclosure part of the law stands. So under the case, the corporation still has to show exactly where it spent the money and to whom. Under your system it just gets filed under some accounting number for who knows what buried deep in their 10-k.
Seb, whatevs.
What’s going to happen next is that for-profit corporations are going to spend a f**kload of money and buy themselves some Congressmen and women.
You heard it here first.
It took a few decades of deliberate, concerted effort in the 19th C to move the state of the law to the point where for-profit corporations were considered to deserve the civil liberties guaranteed to natural human persons by the Constitution.
It’s been that way for over 100 years now. The law has teetered back and forth a bit on what exactly that means, what specific rights belong to corporations and when, etc.
But the basic idea that for-profit corporations are some kind of people, deserving of the same guarantees of rights that you, I, and every other natural human person derives (as the founders would have it) from the divine itself, is baked in at this point.
It’s fun to kick it back and forth on a blog. What if this? What happens then? What about that?
But there’s too much history and too much money in it now. It ain’t gonna change.
To me, it should be kinda obvious that, in fact, corporations and people are different kinds of things.
Seriously, aren’t they?
And that the civil rights enshrined in the Constitution were intended for human beings.
Isn’t that kind of self-evident?
But we live in a world of legal artifice of all types, and this is one more of them.
The court ruling is going to result in further distortion of public policy toward the benefit of corporations and the people who own them, and away from the common interest of the public at large.
That’s what is going to happen.
So, it’s been real, but we’ve probably gone around enough on this for today. I’m not trying to be a smartass, I’m just not sure what the point is of discussing it.
Who’s going to change it? Congress?
Corporate money is their bread and butter.
Not that it’s a law review article, but wikipedia has some citations regarding the history of the corporation as person concept: http://en.wikipedia.org/wiki/Corporate_personhood_debate
There are practical reasons (good ones) why a corporation should be able to own property, pass title, etc. The purpose of corporations is for a group of individuals to act collectively in business. Limiting liability of shareholders to the extent of their investments encourages innovation. There is absolutely no socially redeeming reason to allow corporations to influence elections, since corporations represent individual shareholders who already have freedom of speech. Assuming that shareholders themselves would vote in the political process the same way the corporation would vote, allowing a separate speech right for the corporation is redundant; and since, obviously this is a bad assumption, it’s ridiculous to allow a corporate free speech right to be able to undermine the speech interests of the corporation’s individual shareholders.
Russell, a different Supreme Court can change this. And yes, a change in the Model Business Code (as adopted by the states) specifying that a corporation’s charter does not allow it to be included as persons in a Bill of Rights. Let’s hope. It’s unlikely to happen anytime soon.
So, after all the back and forth, can anyone tell me why the SCOTUS had to rule on anything further than the applicability of McCain-Feingold to the Citizens United PPV offering? Is there any reason at all that they had to go into anything beyond that?
And, btw, I have to buy, borrow or steal a Hustler if I want to see what they have to offer. Same goes for the NYT or anything on subscription TV or in a theater. I think campaigning for specific candidates on public airwaves at election time (outside of the candidates’ campaigns, themselves) is f**ked, not to mention that it represents quite a narrow slice of “free speech”, so I’m not as concerned about the alleged potential for the stifling of various viewpoints as I am about our politics becoming even more oligarchic than it is now.
So, after all the back and forth, can anyone tell me why the SCOTUS had to rule on anything further than the applicability of McCain-Feingold to the Citizens United PPV offering? Is there any reason at all that they had to go into anything beyond that?
Wait, wait!! I know!
Because they are activist ideologues who use their positions to further their political preferences?
No silly Bernard, liberals are activists, and these judges are conservative, thus their actions can’t be activist. After all, conservatives vehemently oppose activism on principle – not to create some useful political expedient steeped in hypocrisy.
I think campaigning for specific candidates on public airwaves at election time (outside of the candidates’ campaigns, themselves) is f**ked, not to mention that it represents quite a narrow slice of “free speech”, so I’m not as concerned about the alleged potential for the stifling of various viewpoints as I am about our politics becoming even more oligarchic than it is now.
If you force me to equate spending money to buy media exposure with “speech”, I’m quite willing to lump doing so in a political sense (particularly that done by artificial “persons”) in with things like yelling “Fire!” in a theater. It’s behavior we put limits on because there’s a cost associated with not doing so. Does it restrict Constitutional rights? Of course it does. The price of not doing so is too high though. Is that debatable and subjective? Of course it is. But it’s not like much of anyone is arguing for absolute free speech – they’re arguing about where to draw the lines. I personally am happy with lines helping to slow our march into complete oligarchy.
If political speech is the equivalent of “fire” the 1st amendment is pretty much a dead letter.
Seb, you willfully ignore the point. Limiting certain types of speech in certain circumstances is an august tradition, and with cause.
But let’s not beat around the bush, let’s be specific. What you’re saying is that (in the name of preventing harm, in this case severe distortion of democracy) not allowing for-profit corporations to spend as much money as they want to in order to purchase media access during election cycles makes the 1st Amendment a dead letter. Correct? You’re willing to stand by that statement?
Basically this is the left’s War on Terrorism scare. And you’re freaking out because you can’t have your mostly worthless Homeland Security Act.
Corporations already have lots of influence. This rule was almost wholly ineffective at changing that. Therefore removing the rule AND respecting the 1st amendment is a good thing.
Corporations already have lots of influence.
Let’s take that as a given. My question is to you, Sebastian, do you think that’s a good thing or not?
Okay. So your “dead letter” line was pure, over-the-top hyperbole that you’d not dream of standing behind. Gotcha.
(Note that this ruling flat-out stated that any rules restricting direct spending by corporate “people” would be invalid. It’s not just saying what we have now is invalid, it’s saying that any laws bearing similar aims to it are invalid. So pardon me if I’m underwhelmed by your scornful dismissal with a side of platitude.)
Nope, I’m absolutely standing by the statement that if political speech (the very core of 1st amendment protected speech) is to be outlawed by analogy to yelling fire that the 1st amendment is effectively a dead letter.
“Let’s take that as a given. My question is to you, Sebastian, do you think that’s a good thing or not?”
Is it an ideal thing? No. But it is a real thing. Is it a real thing worth sacrificing the 1st amendment to fight? No. Especially when there is very little evidence that it is a particularly substantive rule anyway. The rule existed for a few years. Did you notice a particularly strong diminishing in corporate influence then?
And I mean that as a serious question.
…if political speech (the very core of 1st amendment protected speech) is to be outlawed…
Yeah, because we couldn’t be having this political discussion without the recent SCOTUS ruling, I guess. To quote Napoleon Dynamite: “What the heck are you even talking about?”
Is it an ideal thing? No. But it is a real thing. Is it a real thing worth sacrificing the 1st amendment to fight? No.
I agree. See above.
Especially when there is very little evidence that it is a particularly substantive rule anyway. The rule existed for a few years. Did you notice a particularly strong diminishing in corporate influence then?
Not really. But my understanding is that this ruling is a green light that didn’t exist before. I’m not familiar enough with what specifically the rules were before “the rule”, so I’ll leave it to other commenters get into the specifics. I’ll say generally that I think there’s more to this than just McCain-Feingold.
Again, Sebastian, I will accuse you of willfully ignoring the point. You did not make your dead letter statement in response to a comparison of “outlawing political speech” to crying fire, you made it in response to a very narrow statement of imposing limits on the purchase of media access to make political speech by corporate “people”, even given an acknowledgment that this gives these artificial “people” undue influence over the democratic outcome of elections. You do not appear to be willing to stand behind your statement in the context that you made it.
Also:
Is it a real thing worth sacrificing the 1st amendment to fight? No. Especially when there is very little evidence that it is a particularly substantive rule anyway. The rule existed for a few years. Did you notice a particularly strong diminishing in corporate influence then?
Beyond the fact that I find your idea that any possible limit placed on free speech is “sacrificing the 1st amendment” and making it “effectively a dead letter” (assuming of course that we accept the controversial premises that corporations are people and buying media access is speech)… I again point out that saying that the rule that had existed was ineffectual is not all that telling, because the decision was more sweeping than just striking down the existing rule.
From Wikipedia:
As early as 1905, President Theodore Roosevelt asserted the need for campaign finance reform and called for legislation to ban corporate contributions for political purposes. In response, the United States Congress enacted the Tillman Act of 1907, named for its sponsor Senator Benjamin Tillman, banning corporate contributions. Several other statutes followed between 1907 and 1966 which, taken together, sought to:
Limit the influence of wealthy individuals and special interest groups on the outcome of federal elections;
Regulate spending in campaigns for federal office; and
Deter abuses by mandating public disclosure of campaign finances.
In 1971, Congress consolidated its earlier reform efforts in the Federal Election Campaign Act (FECA), instituting more stringent disclosure requirements for federal candidates, political parties and Political action committees (PACs). Still, without a central administrative authority, the campaign finance laws were difficult to enforce.
Public subsidies for federal elections, originally proposed by President Roosevelt in 1907, began to take shape as part of the 1971 law, as Congress established the income tax checkoff to provide for the financing of Presidential general election campaigns and national party conventions. Amendments to the Internal Revenue Code in 1974 established the matching fund program for Presidential primary campaigns.
Following reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs. The 1974 amendments also established an independent agency, the Federal Election Commission (FEC) to enforce the law, facilitate disclosure and administer the public funding program. The FEC opened its doors in 1975 and administered the first publicly funded Presidential election in 1976.
The Supreme Court struck down or narrowed several provisions of the 1974 amendments to the Act, including limits on spending and limits on the amount of money a candidate could donate to his or her own campaign in Buckley v. Valeo (1976).
Congress made further amendments to the FECA in 1976 following those decisions; major amendments were also made in 1979 to streamline the disclosure process and expand the role of political parties.
Which “few years” did you have in mind, Sebastian?
“you made it in response to a very narrow statement of imposing limits on the purchase of media access to make political speech by corporate “people””
That isn’t very limited. That in fact encompasses huge amounts of speech.
So corporations purchasing ads on the public airwaves within a number of days before elections in favor of or against specific candidates running in those elections constitutes “huge amounts of speech” relative to all political speech that can be made? And prohibiting this is a threat to liberty? Seriously? Really? REALLY???
No, it’s not a simple threat to liberty. It renders the 1st Amendment a dead letter. Get with the program.
Sorry, NV. My bad. I think it’s time for bed.
(Seriously, though, I’m on the East Coast and have to go to one of those bouncy kid-party places tomorrow morning with two of my kids, and I’ve probably had too many drinks already.)
“So corporations purchasing ads on the public airwaves within a number of days before elections in favor of or against specific candidates running in those elections constitutes “huge amounts of speech” relative to all political speech that can be made?”
Yes. Because most of the rest of it is made by incumbents for free on TV.
Less snarkily, I again dispute that indiscriminately imposing limits on how much media access artificial legal constructs can buy in the context of elections is a horrific blow eliminating “huge amounts of speech”. Even were I inclined to concede that it was (which, again, I’m not), I fail to see how a “public good” argument (as in the “fire” analogy that got you so hot under the collar) would be inappropriate, or a dire threat to freedom. Most corporations have more resources than most natural people, generally by a scale of magnitude. Corporate people are not citizens, nor are they allowed to vote. Allowing them unlimited political “speech” in the form of purchase of media access for the purpose of electioneering allows them to wield undue influence in the outcome of elections in which they are not allowed to participate.
If certain types of political speech were being limited (or even specific classes of artificial people, though that’s a harder sell), I’d think you might have a case for this being a legitimate threat to the 1st amendment. But that’s not what this is about. It’s about blanket, indiscriminate limits on media access purchase for electioneering. I get that you feel this is a historic civil rights victory for the downtrodden and oppressed Corporate-Americans over The Man, but I’m just not buying it.
Yes. Because most of the rest of [all political speech that can be made] is made by incumbents for free on TV.
Oooooooh. So this is a Fairness Doctrine thing? And poor, beleaguered Corporate-Americans need to be able to buy up access to support their favored challengers in the elections they can’t vote in? Since, ya know, Corporate-Americans naturally root for the underdog and never support incumbents. Or concern themselves with ballot initiatives.
More seriously (if possible, given the remark being responded to), this represents a “huge amounts of speech relative to all political speech that can be made” because political speech can only occur immediately before elections, in purchased media? Huh.
No it isn’t fairness doctrine at all. I don’t even understand the analogy. High profile political speech is made by incumbents. You know that perfectly well. A fairness doctrine would mandate either equal time, or give the opponents money directly. This just lets people who aren’t incumbents have access to speech if they want to pool their resources.
Sebastian, this isn’t about political advocacy groups. You know that perfectly well. This is about for-profit corporations electioneering in a manner well outside the corporate purpose as outlined in their charter.
This is about for-profit corporations electioneering in a manner well outside the corporate purpose as outlined in their charter.
More than that, it’s about for-profit corporations engaging in bribery, something that is illegal in its own right for excellent reasons.
I have a very direct question: do conservatives believe that bribery is appropriate? Do they believe that circumstances have changed such that public officials can no longer be bribed? Do they think that corporations have developed to such ethical standards that they will no longer attempt to originate bribes? Very recent history says that is not the case. Boeing, Federal Government, 2003. Oracle, California, 2002.
Or do you think that the ability to smuggle bribes as in-kind campaign contributions through television advertising is irrelevant? I find that very hard to swallow given the way politicians intermingle campaign and personal funds.
My problem with the ruling has nothing to do with speech – I could give a crap what Boeing has to say about issues – but on the potential for legalized, legitimized bribery. I’m way more of a hawk than most of the other liberals around here, and I think it’s really, really important that the US has the best air-superiority fighter in the world produced at the lowest possible cost. I am 1000% in favor of sourcing said air-superiority fighter from private industry. What I am not in favor of is allowing Boeing to bribe the US Congress, because that’s a pretty good way of ensuring that the next fighter Boeing delivers will have an inflated cost and lower capabilities than promised. Frankly, neither Boeing shareholders nor the US people should be in favor of that – the damaging effects of corruption on the long-term interests of the party offering the bribe are huge, bribes tend to be the result of corporate malfeasance.
John McCain got this. That’s why his name is on McCain-Feingold. You cannot have a world-leading defense industry if defense procurement is susceptible to bribery like this.
“Sebastian, this isn’t about political advocacy groups.”
How is not about political advocacy groups? Citizens United was a political advocacy group that produced a documentary on Hillary Clinton.
“More than that, it’s about for-profit corporations engaging in bribery, something that is illegal in its own right for excellent reasons.”
The problem is that political speech is not the same thing as bribery. Continually insisting that it is, doesn’t make it so.
When Paul Krugman writes kind things about Obama, that isn’t bribery.
When publius writes nice things about Obama, that isn’t bribery.
When the NYT writes kind thing about Obama, that isn’t bribery.
You are devaluing the word ‘bribery’ by pretending that we are talking about bribery.
“Do they believe that circumstances have changed such that public officials can no longer be bribed? Do they think that corporations have developed to such ethical standards that they will no longer attempt to originate bribes? Very recent history says that is not the case. Boeing, Federal Government, 2003. Oracle, California, 2002.”
You prove too much. The later one happened after the campaign finance law in question was law. Suggesting that the law in question wasn’t doing what you think.
How is not about political advocacy groups?
The problem is that talking about for-profit corporations electioneering in a manner well outside the corporate purpose as outlined in their charter is not the same thing as talking about a non-profit PAC electioneering, or for-profit corporations disseminating political information in lines with their charter. Continually insisting that it is, doesn’t make it so.
“So, after all the back and forth, can anyone tell me why the SCOTUS had to rule on anything further than the applicability of McCain-Feingold to the Citizens United PPV offering?”
Because the Obama administration was insisting that it would be perfectly constitutional for them to ban books, if they were published by a corporation. As essentially ALL books are. They made the real aim of campaign finance ‘reform’ too plain for the Court to pretend it was innocuous anymore.
It was stomp on this claim with hob nailed boots, or 1st amendment, RIP. Four members of the Court, ‘liberals’ (Yes, those are sneer quotes.) were perfectly fine with writing the 1st amendment’s epitaph. Fortunately, the conservatives decided to conserve the 1st amendment.
It appears the problem lies more in the “well outside the corporate purpose” part than the electioneering part, yes?
I suggest that legislation pointed in THAT direction might be more effective in accomplishing your goals, without the potential for unpleasant side effects.
Human behavior being what it is (scratch that: animal behavior being what it is), for every desirable objective, barriers to meeting that objective will be tunneled under, skirted around, or riddled by termites. People are going to want to spend their money supporting their own political objectives, and people are likewise going to want to keep their adversaries from achieving their political objectives. The money stream will not be stopped; it might be temporarily dammed or diverted, but sooner or later it’ll find its way back to influence.
If you can keep people from spending other people’s money without their permission for political ends, I am nominally in favor of that. But you’re going to have a hard time drawing a legal line of demarcation between politics and business development, at times. It’s the grey areas that make for ineffective legislation, I think.
JMHO of course. Feel free to ignore.
“The problem is that talking about for-profit corporations electioneering in a manner well outside the corporate purpose as outlined in their charter is not the same thing as talking about a non-profit PAC electioneering, or for-profit corporations disseminating political information in lines with their charter. ”
Maybe I shouldn’t call you out, but you’re kind of making stuff up here right? Most modern corporate charters read something like “incorporated to conduct any business legal in the state of X”. So all this “well outside the corporate purpose as outlined in their charter” doesn’t sound very convincing. Now maybe we should go back to the 1800s idea of limited corporate charters–that is a completely different debate. But to invoke the relatively unlimited modern charter the way you do makes me suspicious.
And I don’t see this PAC, non-PAC distinction as very important. Any corporation who thought political advertisments were really important set up a PAC. Unless you are positing a world where corporations:
A) Believed that political advertisement was important
and
B) Decided “why bother” on PACs,
I don’t see why you find the distinction so darn important.
The most important thing from my perspective on PACs is that they mandated disclosure. But even fuller disclosure is the one thing the Supreme Court didn’t strike down.
Seb, given that across this discussion you have obtusely insisted variously that it is impossible to make a distinction between:
I am somewhat reluctant to engage you in a parsing contest at this late hour. But I’ll try.
I’ll admit I’d prefer very narrow corporate charters (with the corporate death penalty alive and well, natch). But even taking the very loose (and yes, I know, arbitrary chosen, so I shouldn’t read too much into it) example you give above, I’m not seeing how electioneering can or should be construed as “conducting business” (IOW, I take Slarti’s criticism to heart). Period, full stop. That doesn’t seem too hard. For-profit corporations are incorporated to conduct business. Elections are not business. Ergo, activity intended primarily to influence the outcome of elections should be beyond their purview. Yes, this is where you’ll claim to be incapable of distinguishing freedom of speech and of the press. Red. Herring. And I’m not going to argue with you on this, because you’re being obtuse. The distinction is possible to make, and should be made. If you instead want to claim that it’s absurd to place limits on “speech” (or spending money) based on intent… we already do. The majority opinion hung a lot on the notion that we can’t (simply can’t) place type-based limits on “people” to restrict their free speech in certain circumstances. However, every member of the majority has done so in other opinions. So plainly, we can. “We” just don’t want to.
So, yeah. There’s no reason we should be allowing artificial non-citizen business “people” to attempt to influence the outcome of elections. Preventing such legal constructs from doing so does not a priori render the 1st Amendment a dead letter. In-kind “gifts” with the intent to obtain influence is still bribery; corruption does not cease to be corruption simply because it is formalized and institutionalized. There is a difference between freedom of the press and freedom of speech. Citizens United v. FEC was decided far more broadly than it needed (or should) have been decided.
How is not about political advocacy groups? Citizens United was a political advocacy group that produced a documentary on Hillary Clinton.
If that were all it was about, I wouldn’t even have noticed. And, if I had, I wouldn’t really have cared. They made it about much more than that, and it’s the much more part that I and seemingly most of the other commenters here have a problem with. Why isn’t that obvious by now?
“That doesn’t seem too hard. For-profit corporations are incorporated to conduct business. Elections are not business. ”
And if governments didn’t regulate business we’d have no problem. But for profit corporations are often both helped (see GM) and hurt (see the out of control new lead rules for toys) by government. So it isn’t shocking that they want to get their voice heard. And like unions (who also fall under these rules) there are reasons to believe that the collective voice is not only ok, but often even good. Government effects the conduct of business. It even should. And that is why businesses care about elections.
“Yes, this is where you’ll claim to be incapable of distinguishing freedom of speech and of the press. ”
I’m not sure what you are talking about. Electioneering communication (communicating criticism or support for policies and candidates) is the *VERY FREAKING CORE* of the reason why the first amendment exists. It wasn’t written just to protect trash novels and supermarket tabloids. The main thrust of the first amendment was that free speech means being able to write and talk about the issues and politicians. Of course I have trouble distinguishing between that and electioneering. Electioneering is part of the very core of the 1st amendment.
“The distinction is possible to make, and should be made”
Between electioneering and core free speech? If the distinction is possible, which I highly doubt, you haven’t even tried.
“•purchasing media access with the discernible intent to influence the outcome of an election and the totality of political speech ”
What do you think free speech is about? Of course they are trying to influence the outcome of elections. Where the heck did you get the idea that speech trying to influence the outcome of elections wasn’t protected by the 1st amendment?
“However, every member of the majority has done so in other opinions. So plainly, we can. “We” just don’t want to.”
Really? What are you talking about? You can advocate for the KKK and that is almost always protected by the 1st amendment. You can advocate the theoretical exterimination of an entire race or class of people and so long as you aren’t immediately inciting violence you are protected by the 1st amendment.
You have to go pretty far to the edge cases for you general statement to be anywhere near the truth.
And btw, I’m convinced that you don’t even really understand PACs at all. Please specifically outline why you think
A) Corporations wanted to influence elections
AND
B) they didn’t use PACs
AND
C) suddenly they will start influencing elections
It seems like politically interested corporations were already using PACs. Right?
You prove too much. The later one happened after the campaign finance law in question was law. Suggesting that the law in question wasn’t doing what you think.
??????
The Boeing case was old-school bribery – you know, the kind where you just give a procurement official cushy jobs for their kids and an extra-cushy one for her when she leaves “public service”. It was nowhere near the terrain covered by the campaign finance laws and that is not why I brought it up… geez.
I brought it up to demonstrate that old-fashioned bribery is alive and well, that it already has a negative effect on government procurement, and that removing very major existing barriers to legal bribery is likely to result in a “new normal” situation where politicians expect millions of dollars of in-kind donations from corporations in the form of campaign advertising for every election – which will make an already problematic environment for bribery much much worse. The problem with normalizing massive corporate campaign contributions (far in excess of what can be raised from constituents) is that every politician will be corrupted, and corruption breeds more corruption. As you keep saying, that situation already existed to some extent, but what you seem to be willfully denying is that it’s going to get far worse now.
You also don’t seem to understand what the difference between a PAC and a corporation was: http://en.wikipedia.org/wiki/Political_action_committee
“Contributions from corporate or labor union treasuries are illegal, though they may sponsor a PAC and provide financial support for its administration and fundraising.”
Now the situation was already pretty bad – where corporate execs and employees would be expected to contribute to a corporate PAC as a condition of their salaries, which amounts to smuggling money out of the corporate treasury and into the PAC. That situation was bad, but at least on paper it was still illegal to do that. That’s gone – goodbye. Now the corporation can just spend its general treasury money on campaign commercials. You seem to think that’s an irrelevant distinction, I think you are profoundly mistaken.
you’re going to have a hard time drawing a legal line of demarcation between politics and business development, at times
No kidding! You know what’s going to make drawing that legal line a lot harder? Tossing out the century of bipartisan legislation that was passed in order to define that line in favor of an “anything goes” rule. It’s really hard to draw legal lines between two competing and extremely important concerns – free speech and fair elections – when the Supreme Court waltzes in and throws everything you’ve tried to do in the garbage can.
You guys are celebrating because you think this is not a big deal, and that to the extent it matters at all it will benefit Republican candidates – but I think you are not going to like the situation 10, 20 years down the road when every member of Congress is a bought-and-paid-for corporate rep. That’s not going to be good for conservative ends any more than it will be good for liberal ends. It won’t even be good for corporate ends, because corruption in procurement breeds incompetence in delivery. You might have some idea of a cosy corporate-Republican alliance with a grip on political power being a pastoral conservative wonderland, but prior experience does not speak well of that situation.
It’s that we’re too stupid to know what a PAC is and not that we’d prefer some level of restraint to none at all. (Yes, I have a mouse in my pocket.)
I don’t see this PAC, non-PAC distinction as very important. Any corporation who thought political advertisments were really important set up a PAC.
PACs. Could. Not. Take. Money. From. Corporate. Treasury. Funds.
I respectfully submit that when opposing sides of an argument are both using arguments that state (verbatim, or near enough) that their opponent “know[s] that perfectly well”, maybe there’s some failure of communication.
I also submit that when one accuses one’s opponent of being obtuse, deliberately avoiding the point, or general evasion, one may not be operating at peak persuasiveness, as far as said opponent is concerned. If one is merely saying those things to poison the well so that one may “win” the debate in the eyes of the studio audience, though, one may be using a more effective tactic.
Provided the audience is suitably credulous, I mean.