by Eric Martin
Mark Kleiman on some of the implications of the Citizens United decision (via K-Drum, star of stage and screen):
One aspect of the ruling that hasn’t gathered much attention: as far as I can tell, the analysis doesn’t distinguish between domestic and foreign corporations….So the ruling allows Hugo Chavez to spend as much money as he wants to helping and harming American politicians. If the Russian, Saudi, and Chinese governments don’t currently have appropriate vehicles for doing so, you can count on it: they soon will.
….The United States has a $13 trillion GDP, and total annual campaign spending is on the order of $2 billion. Buying influence on the American government has to be the highest-leverage activity ever invented, and Justice Kennedy and his four accomplices just invited every oligarch and tyrant in the world to play. This is not just a threat to democracy; it’s a threat to sovereignty.
Brilliant!
See, also, The Editors.
I think there is ample precedent for distinguishing between non-U.S. persons and non-U.S. controlled entities in the campaign finance laws, but I haven’t read the case so maybe it obliterates such distinctions.
That said, even if it didn’t remove the U.S./non-U.S. distinction, it wouldn’t be too hard to disguise the ownership of a corporation running hundreds of paid television ads long enough to have them affect an election.
Also, what if foreign entities were just major shareholders? Is there a threshold at which point the corporation would be considered a non-US person?
Last time I looked, non-US citizens had the same free speech rights as citizens. Is Soros a US citizen? If he is, what if he wasn’t?
Is Soros a US citizen?
Yes.
If he is, what if he wasn’t?
Then his ability to influence campaigns should be limited.
Last time I looked, non-US citizens had the same free speech rights as citizens.
Those rights do not extend to contributing to any US federal election campaign.
Which is interesting, in light of the “money == speech” doctrine.
But still true, nonetheless.
From the FEC “quick answers” website:
Green card holders are considered to be US persons, and so can contribute.
Then his ability to influence campaigns should be limited.
Why? But if a non-citizen should have less of a right to free speech in the US, does it follow that non-citizens captured overseas while actively planning or carrying out hostile activities directed at the US have similarly limited rights? Where might we find the document delineating a non-citizen’s vs. a citizen’s rights? What about non-citizens legally in the US? Due process but just some free speech? Better ask A Sullivan how he feels about that.
The problem with allocating and rationing who can do and say what in a free country is that, once you accept the premise that Group A can be limited, it’s not long before you can come up with a reason for limiting Group B. And so on.
But if a non-citizen should have less of a right to free speech in the US, does it follow that non-citizens captured overseas while actively planning or carrying out hostile activities directed at the US have similarly limited rights?
The basis of the person’s rights in the two cases are different.
Citizens’ rights are defined and guaranteed by the US Constitution.
The rights of those captured and held hors de combat while fighting the US overseas are defined in various treaties and conventions that the US is signatory to.
Per the Constitution, the latter carry all of the force and weight of US law. However, the specific rights guaranteed by each are different.
So, for example, a person captured and held overseas while fighting the US might not be allowed to contribute to a US election campaign, while still being entitled to not being beaten to death.
Hope that helps to clarify things. Although, I bet you knew all this already.
Wait, wait, wait, is McKinneyTexas a bellwether for American conservatives backing off the idea that OMG CLINTON TOOK MONEY FROM CHINESE AND AL GORE DID FUNDRAISING IN A TEMPLE? Because that’s, like, received wisdom on the right about how corrupt the Clintons were.
How ’bout it, Tex? Is it OK for foreign nationals to give money to US campaigns or not? If not, why is US money “speech” but non-US money not “speech?”
What Russell said.
I’m pretty sure that the whatever the actual implications of the decision are, this is not one of them.
Nope, we’re distinguishing, much as it annoys the campaign censors, between giving a politician money, and spending money to have your opinion about a politician heard.
The campaign ‘reformers’ want saying something bad about an incumbant to be viewed as a bribe to the challenger. That’s loony. But you can understand why incumbants would like the idea.
You might wanna show your work. Even for US-owned corporations, many of their major institutional shareholders are not US citizens or companies.
“So, for example, a person captured and held overseas while fighting the US might not be allowed to contribute to a US election campaign, while still being entitled to not being beaten to death.”
Or, more practically, the converse. Or, more seriously, this becomes a very critical disclosure law to pass. We have candidates saying they approve of this message, we need every corporation to have to specifically identify itself clearly.
The bigger problem, I don’t know if it is addressed anywhere, is the company (I am considering starting) to run ads for corporate sponsors or individuals while identifying my corporation as the corporate citizen that has these views(and the right to express them). Then anyone can say anything as long as they pay me and I am willing too say it.
So Brett is one vote for Kim Jong-Il and Hugo Chavez being able to buy US airtime to attack candidates for US offices. I think Sebastian and McKinneyTexas are, also. Anyone else?
The campaign ‘reformers’ want saying something bad about an incumbant to be viewed as a bribe to the challenger. That’s loony. But you can understand why incumbants would like the idea.
Yeah, corporate advertising doesn’t work at all, no sir. Complete waste of money.
The problem is that “distinguishing between giving a politician money, and spending money to have your opinion about a politician heard” is a distinction without a difference when it comes to ads that purely promote or attack candidates in an election, rather than taking on specific issues. It’s not about speech, but about corruption – since campaign contributions mostly go to spending on media, ads run by third parties amount to an in-kind donation to their campaign, freeing funds inside the campaign in exactly the amount that the ads cost to run.
Unfortunately trying to make it about the case that was actually before the Supreme Court is missing the point. If the ruling had been limited to that kind of thing – a documentary available on video-on-demand produced by a political non-profit – I would have had no problem whatsoever with overturning restrictions on it. That restriction amounted to a limitation on the actual availability of some speech, and I have a problem with that even when the speech in question is something I disagree with.
That’s not the issue. (I think that conservatives here know that it’s not the issue, but I am going to assume that you’re actually arguing in good faith and try again to explain it.) The problem is that they overreached and made it legal for for-profit corporations to buy as much ad time for purely political ads as they feel like. This amounts to the ability to transfer as much cash as they feel like to any given politician, a process proven to result in corruption. That is what is at issue, and that is the problem with the ruling, that it did not restrict itself to the narrow question but went out and overturned longstanding, bipartisan, widely-accepted laws that had been enacted by the people’s representatives to try to reduce corruption in government. This is a problem people had been trying to address for decades, and they had passed laws in doing so, and the court decided that the wishes of the people were irrelevant. That’s what we have a problem with.
Well said JD.
“This amounts to the ability to transfer as much cash as they feel like to any given politician, a process proven to result in corruption.”
Not to pick, I don’t disgree with the concept, but they can only free up as much money as the campaign has so it is not an unlimited contribution in kind by that measure.
The more important point is the type of speech certainly is less restricted when the candidate doesn’t have to approve, publicly, of what is said.
“This is a problem people had been trying to address for decades, and they had passed laws in doing so, and the court decided that the wishes of the people were irrelevant. That’s what we have a problem with.”
You have got to be kidding! Is there anyone here who has a problem with the courts ignoring the peoples wishes when it suits their cause? I think this is a problem, I agree with this statement, I agree in general and specific, I just think it takes a lot of nerve to say it on this blog and have Eric agree with it.
Wow, this great!
Nice OpIvy reference in the title, Eric. Now I’m going to have to listen to that tonight.
we need every corporation to have to specifically identify itself clearly.
As I understand it, this decision expressly obviates what you propose, Marty.
It is – to put it mildly – questionable that many even nominally *American* corporations feel any particular allegiance – in the normal sense of that word – to the US. It’s neither a secret, nor anything they feel the need to be ashamed about, that they don’t.
You ‘conservatives’ are pretty much getting what you’ve been wishing for for the last 30 years. You might want to recall the proverb about God and answered prayers…
I have been told that Nation States are dead. Since a nation is just a shared concept that a group of people hold for some finite period of time, the idea that they will be replaced by another concept is not out of place.
In a Google world with free flowing ideas knowing no borders, with people able to connect to the nexus anytime they want to, why is it an issue if a corporation has a data stream in the flow of information or not?
Rollerball where corporations run everything? the Matrix where we are just the information. Rome and The British Empire and America where they exist until they don’t anymore because people go off and think about groups another way?
Who cares who buys campaign ads if information flows and people are free to consume it in any way they want?
I have been told that Nation States are dead.
‘You’ve been told’? What does that mean?
1.) When politicians – most especially ‘conservatives’- suddenly desist from using nationalistic demagoguery as their mainstay, I will entertain, within the context of a political discussion, the idea of the death of the nation state.
2.) Could there be any more simplistic, reductive response to this question than this: “Who cares who buys campaign ads if information flows and people are free to consume it in any way they want?’?
Even in the digital utopia you think we’re either living in or approaching, money = power. It takes an extensive education, lots of native intelligence, and oceans of words to rationalize the fraudulent idea that money = speech; but ‘money = power’ is about as self-evident a concept as there is.
Robert Reich on the need for a shareholder protection act.
Marty,
Just so we’re clear, I liked JD’s comment, but jeez, I don’t endorse every word.
That being said, the Supreme Court should conduct its review with some level of deference to legislative action when done with such specificity, and also with precedent.
Those are not insurmountable obstacles when a fundamental Constitutional right is at stake, but they should be given some weight nonetheless.
That’s my position on this matter.
Citizens’ rights are defined and guaranteed by the US Constitution.
The Constitution distinguishes between ‘persons’ and ‘citizens.’
Non-citizens take out ads, produces movies with a political bent and advocate in the public domain for political positions all the time. Whether its Hugo Chavez or Margaret Thatcher, NARAL or Families First, everybody has the right to be heard, to say what they want, etc. That is the essence of the First Amendment and the essence of freedom.
KSM is being tried in US Courts under US law. Is this a right or a discretionary concession?
Nice OpIvy reference in the title, Eric. Now I’m going to have to listen to that tonight.
Thing is Larv, I do it to myself just about each time I pluck a song lyric for a title. I get the song stuck in my head the rest of the day almost without fail.
There are worse things than having OpIvy in your head though.
Is there anyone here who has a problem with the courts ignoring the peoples wishes when it suits their cause?
It is not a controversial principle that courts should pay a great deal of respect to the expressed wishes of the people as enacted in law.
There are times when those expressed wishes impinge on the rights enacted in the Constitution, and the job of the courts then is to disentangle that mess, doing the best they can to preserve what legitimate wishes of the people can be preserved while protecting individual rights.
It seems very apparent to me that that is not what they did in this case. Not only did they not settle the issue at any of the many narrower levels it could have been settled, but they disregarded – did not even seriously consider – all of the serious concerns about corruption that lay behind the existing body of law on corporate involvement in politics, in throwing them aside.
Now I understand that to at least some conservatives that is how they see several crucial past rulings of the Supreme Court. My opinion on them is, for a couple of reasons*, not well-informed enough to really matter, but for what it’s worth I think that that view is understandable, but it seems to me that the harms to individual rights in question were sufficiently serious that the rulings in question needed to be as broad as they were.
* The fact that they happened before I was born, and that until 1999 I lived in the UK and so my experience of the US is very distant from the cultural context in which they occurred – though of course this is true of many younger American conservatives too.
Non-citizens take out ads, produces movies with a political bent and advocate in the public domain for political positions all the time. Whether its Hugo Chavez or Margaret Thatcher, NARAL or Families First, everybody has the right to be heard, to say what they want, etc. That is the essence of the First Amendment and the essence of freedom.
So Hugo Chavez should, or should not, be able to give money to candidates for office in the US? A simple “yes” or “no” will suffice.
How about: if a corporation spends money on political advertising,* its limited liability gets taken away?
*yes I know this is likely hard to define, but let’s assume we’ve all agreed for purposes of the second part.
As a non-citizen myself, I think the idea that this is a concern about speech by non-citizens is the same red herring as the idea that this is a concern about speech by corporations.
In neither case is that the concern. The concern is over political corruption through unlimited in-kind donations to political campaigns, and there is long precedent for concern about the financial influence of foreigners on US elections, as seen in the longstanding restrictions on who may contribute to a campaign. By the way, do you now think it’s okay for non-resident foreigners (or foreign corporations) to contribute funds to political campaigns? If they have the rights of citizens in regards to speech, why do they not have the rights of citizens when it comes to soft-money donations?
(The restrictions on non-resident foreigners prevented me from even buying an official Obama bumper sticker during the campaign, since at the time I was not a permanent resident – I am now.)
‘Last time I looked, non-US citizens had the same free speech rights as citizens.’
Those rights do not extend to contributing to any US federal election campaign.
Which is interesting, in light of the “money == speech” doctrine.
IANAL, but my understanding is that if we take the opinion at face value, this doesn’t pass “Constitutional” muster, as long as we consider spending money “speech” (though I suspect it might be necessary (though IMO not meaningful) to make a distinction between contributions and direct electioneering). The central point for the majority was a (hypocritical) refusal to make a distinction between “types” of persons in terms of 1st Amendment rights. I.e., corporate “persons” and non-corporate persons. If we take that stance at face value (which we shouldn’t, nor do members of the majority in other rulings), a reasonable (but ridiculous) argument could be made that if there is not an explicit Constitutional distinction made between American and non-American persons, any 1A right granted to an American person (or “person”) must be granted to non-American persons (or “persons”).
Admittedly, consistency is the hobgoblin of small minds, and our dear justices are certainly not burdened with small minds. No, indeed.
The Constitution distinguishes between ‘persons’ and ‘citizens.’
That’s right.
And for purposes of civil rights, ‘person’ is generally construed to be someone resident in the United States.
So, I agree. Non-citizen persons have every right to express themselves on any topic you like.
My issue with the court decision is that I don’t think that corporations should be considered to be ‘persons’ for purposes of constitutionally guaranteed civil rights.
They aren’t people. Lather, rinse, and repeat.
You seem intent on bringing KSM into the picture, so I’ll offer my opinion.
The correct way to have handled Mohammed would have been to bring him to the US to be tried as an international terrorist under the US Code.
And query this, would it be unconstitutional for, say, Delaware to change its corporate law to prohibit any corporation organized under the laws of Delaware from spending funds to influence any election or government official?
if we take the opinion at face value, this doesn’t pass “Constitutional” muster
We should expect to see some interesting court cases come up.
Oh Butters, you worry too much and appear to be stuck in a world where all information and politics is local. Tip O’Neil is dead you know. Maybe it was in the newspaper.
Money talks in your world but the Obama/Democratic/Media/Kennedy machine that had many millions lost recently.
There is no Utopia, I have been told.
“The problem is that they overreached and made it legal for for-profit corporations to buy as much ad time for purely political ads as they feel like. This amounts to the ability to transfer as much cash as they feel like to any given politician, a process proven to result in corruption. That is what is at issue, and that is the problem with the ruling, that it did not restrict itself to the narrow question but went out and overturned longstanding, bipartisan, widely-accepted laws that had been enacted by the people’s representatives to try to reduce corruption in government. ”
You keep harping on the idea that it is all about UNLIMITED funds. Is that really all you are worried about?
Because if it is, you should reread the case and notice that they specifically do not touch the contribution limits.
Phil–one more time: direct donations to a candidate are not the same as taking out an ad advocating a position identified with a candidate or even endorsing a candidate. Hugo is free to say what he wants. Hell, if it was fully disclosed, I’d be in favor of him contributing to candidates.
Russell–you can’t try someone under the US Code without trying that person under the US Constitution, which includes Miranda, the 4th Amendment (Sgt., did you have a warrant when you seized that man’s computer?), proof of guilt beyond a reasonable doubt and a broad array of other rights that make prosecution generally untenable.
The issue of KSM is germane because of the inherent disconnect between abridging a non-citizen’s or a corporation’s peacefully exercised free speech rights and granting the full panoply of rights to someone like KSM. Why does KSM get more constitutional protection than Andrew Sullivan? Is he less excitable, perhaps?
And query this, would it be unconstitutional for, say, Delaware to change its corporate law to prohibit any corporation organized under the laws of Delaware from spending funds to influence any election or government official?
Yes, under the doctrine of selective incorporation, the First Amendment, through the 14th Amendment, was made applicable to the states. Such a law clearly violates the First Amendment. Also, since Delaware corporations do business almost anywhere except Delaware, there are interstate commerce clause and jurisdictional issues as well.
Given the frequent interference of the U.S. government and corporations in the elections of other countries, there would at least be some rough justice in having our elections bought by the Saudi royal family, Hugo Chavez, the Likud Party, and the Communist Party of China (among others).
“So Brett is one vote for Kim Jong-Il and Hugo Chavez being able to buy US airtime to attack candidates for US offices.”
Indeed, I am a vote for that proposition. I don’t want ANYBODY’S speech censored.
“It’s not about speech, but about corruption”
No, it is about speech. You want to be able to label speech you don’t like “corruption”, so as to have an excuse to silence it. Well, let me say this most emphatically: Stick your aspirations to be a censor where the sun don’t shine. Not so long as the 1st amendment survives.
Phil–one more time: direct donations to a candidate are not the same as taking out an ad advocating a position identified with a candidate or even endorsing a candidate.
If money = speech, which is what all of this hinges on, then it most certainly is exactly the same.
The issue of KSM is germane because of the inherent disconnect between abridging a non-citizen’s or a corporation’s peacefully exercised free speech rights and granting the full panoply of rights to someone like KSM.
Again with this red herring. Is anyone proposing giving KSM the right to vote, or to bear arms? No? So you’re talking about a population of exactly zero, here.
Heck, McKinneyTexas, you acknowledge that you’re considering and money and speech to be equal on the other thread!!
You’re positing that not being able to use money from certain sources is the same as prohibiting someone from speaking entirely.
Or, in short, that money is speech.
So why is giving money to television commercial production “speech,” but giving money to Barack Obama not “speech?”
Can you at least come up with a consistent set of principles, here, so long as you’re slagging everyone else for not doing so?
Such a tough nut to crack.
On the one hand, I love the 1st amendment and I’d rather err on the side of a broad interpretation than a narrow one.
On the other hand, I loathe the influence of money on politics. Our politicians are bought and paid for, and the vast majority serve their real constituents: the people who gave them huge sums of money
Speaking of which, I’m not really sure I buy the whole “a corporation is a person!” argument. Of course, the Supreme Court’s opinion > my opinion, so I’m SOL for the time being.
Russell–you can’t try someone under the US Code without trying that person under the US Constitution, which includes Miranda, the 4th Amendment (Sgt., did you have a warrant when you seized that man’s computer?), proof of guilt beyond a reasonable doubt and a broad array of other rights that make prosecution generally untenable.
Well, there are a lot of terrorists in US jails. They got there somehow.
But KSM is not the hill I’m gonna die on today. Whatever floats your boat.
You want to be able to label speech you don’t like “corruption”, so as to have an excuse to silence it.
No, I really don’t want to “silence” anything. I want elections to be free, fair, and for the electorate to be well-informed, for the views of all relevant parties to be heard, and for corruption to be minimized. Corruption is the exchange of money or other things of value (like campaign ads) for special treatment by politicians. This is not some personal (or partisan) quest to suppress particular viewpoints. It is a concern that politicians are, just like everyone else, susceptible to bribery and liable to betray the public trust if bribed. That has never been a partisan concern, it is not a partisan concern here, and it is not about “silencing” anyone. Concern about corruption and laws to restrict it are as old as democracy.
There is a secondary concern, but it is secondary and much less important than the concern about corruption, and that is that airtime is limited and sold (effectively) by auction, so that bidding-up effects from one party having far more money than another can result in effective “silencing” of one message in practical terms. But that is strictly secondary.
Sebastian: “they specifically do not touch the contribution limits”
Say more please? I am not talking about direct financial contributions. I am talking about effective in-kind contributions that come as a result of letting corporations spend as much as they want on political advertising, and unless a lot of other people and me are confused, that is exactly what the ruling did.
Jacob, PACs could already spend enormous amounts on the kind of advertising that you are talking about. Any corporation that committed to influencing the political landscape already did that.
The disclosure piece of the law was untouched, so you don’t get more disclosure under the PACs situation.
Basically this makes things more directly observable.
A lot of this seems like in-kind incumbent protection. The strongest effect from political advertising is in relative unknowns against incumbents. And the effect is not unlimited as Phil and Jacob seem to suggest–corporations could have spent tens of millions on ads and Kennedy still would have retained his seat until he died. The value of being the incumbent makes you almost untouchable as it is in the US. Adding more money on the incumbent side can’t move 97% much worse. So we are talking about the challenging side. Right? And I’m just not so worried about the disasterous effect of potentially threatening the overwhelming reelection rate of Congressional incumbents. We can talk about the sky falling down when the reelection rate gets to something really scary like 75%.
Fallout already
http://news.yahoo.com/s/ap/20100122/ap_on_bi_ge/us_campaign_finance_ceos;_ylt=AoFNwfcL5KEzVlpClTNvyXas0NUE;_ylu=X3oDMTNvdTk0Nmw2BGFzc2V0A2FwLzIwMTAwMTIyL3VzX2NhbXBhaWduX2ZpbmFuY2VfY2VvcwRjY29kZQNtb3N0cG9wdWxhcgRjcG9zAzIEcG9zAzgEcHQDaG9tZV9jb2tlBHNlYwN5bl90b3Bfc3RvcnkEc2xrA2Nlb3N0b2NvbmdyZQ–
I would much rather hear what a corporation says directly in an ad or PR thingy than what their mouthpiece says.
Maybe the Surpremes got the free speech stuff right?
The campaign ‘reformers’ want saying something bad about an incumbant to be viewed as a bribe to the challenger. That’s loony.
Kennedy in Caperton:
“We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
Loony?
Sebastian, the problem I have is that it’s possible for incumbents to be corrupted just as well as challengers. When a corporation runs ads for an incumbent, that both relieves the pressure on them to raise funds and campaign, and also frees what funds their campaign has already raised for other purposes. If you have to pay for all your own TV ads you have a lot less money left over to pay your wife & kids as “campaign consultants”, go on shopping sprees, stay at fancy hotels, and generally engage in all the other fun ways to smuggle money out of campaign funds.
As far as I understand it the pre-existing situation did not allow for general treasury funds (i.e. the actual corporation’s money, rather than the money of people who happened to work for the corporation) to go to PACs to run political ads. Not the case?
Why does KSM get more constitutional protection than Andrew Sullivan?
Are you under the impression that Sullivan wouldn’t get a trial if charged with committing a crime in the US?
mckinney, read GC III, which is law in the US, being a ratified treaty. Persons who violate the treaties (i.e., terrorists, who commit war crimes) are to be tried by the capturing power via their existing criminal or military trial structure, and to be at least given the rights of a P.O.W., or a person in the nation’s military. Once you can understand that, then we can move to the next step.
McKinney: Yes, under the doctrine of selective incorporation, the First Amendment, through the 14th Amendment, was made applicable to the states.
Well, yes, I know that, though I took Constitutional law from John Yoo, he at least got that bit right (though he didn’t mention whether the president could repeal selective incorporation by citing national security).
Such a law clearly violates the First Amendment.
I’m not sure you caught what I was getting at. Corporations are solely a creature of state law, they owe their very existence to it, unlike natural persons, and can only act in ways that state law permits. Now, it just so happens that most state corporate law, and especially Delaware’s, permit corporations to do just about any lawful thing, including give $ to PACs, and now do whatever was previously prohibited by McCain-Feingold before it was struck down by yesterday’s decision. But to the extent a state has created the corporate body from whole cloth, I’m not so sure it can’t limit the ways that that body can act. Unless the decision on Thursday can be read to mean “if a state decides to fashion its laws to create a separate legal entity, whether a corporation or otherwise, then the state cannot limit that entity’s ability to exercise rights under the first amendment in any way.” I’ll admit that I haven’t read the decision, so I don’t know it can be read to mean that, but I’d be curious if others thought so.
Also, since Delaware corporations do business almost anywhere except Delaware, there are interstate commerce clause and jurisdictional issues as well.
I doubt that. The corporation owes its separate legal existence, ability to own property, to sue and be sued, etc., solely to the Delaware corporate law, and other states’ and the federal government’s respect thereof (the former of which might be compelled by the constitution), the fact that Delaware changed its law to restrict the actions Delaware corporations can take seems to me to be just fine (there may be takings clause issues if the law applies to pre-existing corporations, but I’m not sure that would even be the case).
@Seb:
You keep harping on the idea that it is all about UNLIMITED funds. Is that really all you are worried about?
Because if it is, you should reread the case and notice that they specifically do not touch the contribution limits.
Huh. Oh, wait, you moved the goalposts to contributions. My bad.
@Seb:
Jacob, PACs could already spend enormous amounts on the kind of advertising that you are talking about. Any corporation that committed to influencing the political landscape already did that.
The disclosure piece of the law was untouched, so you don’t get more disclosure under the PACs situation.
Basically this makes things more directly observable.
Um, no. It doesn’t. It gives corporations the option of making things more observable, but where exactly does it say they can no longer fly kites to obfuscate who’s doing the electioneering?
Money talks in your world but the Obama/Democratic/Media/Kennedy machine that had many millions lost recently.
Yes, JV, Brown didn’t spend *any* money in that race. Money doesn’t matter in politics! Let’s let all the DC pols who spend 50% of their waking hours raising money know!
BTW, did you read the entire article you cited?
Silly goo-goos! Money doesn’t matter in politics! Let’s just let information FLOW, and people can decide what to do with it!
Assuming that congress actually passed a campaign finance law like the one the article mentions (the odds of which are about a trillion to one), in view of this SCOTUS decision and Buckley, why would pols opt for public financing even if it were available?
So, JV, did the Supremes get ‘this free speech thing’ right? No, because it’s not about free-speech at all, it’s specifically about money. Dippy libertarian pseudo-pith doesn’t affect that.
Dippy libertarian pseudo-pith doesn’t affect that
This would come in handy as a key on my keyboard.
Just because you have a right to free speech, doesn’t mean you’re allowed to take money for speaking. There are lots of things you aren’t allowed to take money for, products that are illegal to sell.
So, IMO, there is no human rights problem with banning ALL political advertising, if that’s what you want. Doing it selectively (forbidding only foreginers, corporations, prison inmates, or setting spending limits) is a bit more stinky, since that could help some parties and hurt others – but so what? They haven’t banned gerrymandering yet.
Again: Speech is protected. The right to take payment for saying certain things, however, need not be. Regulate to your heart’s content.
But to the extent a state has created the corporate body from whole cloth, I’m not so sure it can’t limit the ways that that body can act.
Ugh, by this standard, any media outlet organized under the laws of Delaware could be prohibited from endorsing a candidate. That plainly violates the 1st Amendment.
This would come in handy as a key on my keyboard.
viva short cuts Eric!
Glenn Greenwald apparently agrees with the Supreme Court ruling–
link
“So, IMO, there is no human rights problem with banning ALL political advertising, if that’s what you want.”
Yeah, we already knew that O.W. wasn’t exactly a hotbed of ACLU style civil libertarianism.
We can talk about the sky falling down when the reelection rate gets to something really scary like 75%.
The reelection rate is a red herring.
The issue is whether, over time, Congress will be owned (more than already) by corporate interests. I think that’s a very reasonable fear.
Suppose independent expenditures by oil companies, to pick a handy villain, could swing 25 House seats. Unrealistic? Exxon made $45 billion in 2008. Think they’d spend $100 million (at $4 million a seat, which is a ton) to see that legislation they don’t like fails?
Is twenty-five seats not enough? There’s other oil companies, and I suspect it’s worth, say, $300 million to all of them put together. That’s 75 seats. And it wouldn’t take much of a tax break to pay for them. Probably just some technical stuff nobody much would understand would do it. So the whole thing is free.
Now, you’ll say that that’s a ridiculous hypothetical case. Maybe so, but where’s the counterweight? What makes it ridiculous?
McKinneyTexas: But to the extent a state has created the corporate body from whole cloth, I’m not so sure it can’t limit the ways that that body can act.
“Ugh, by this standard, any media outlet organized under the laws of Delaware could be prohibited from endorsing a candidate. That plainly violates the 1st Amendment.”
Even under the strictest regulations, corporations have always and only) been granted to the rights they required to carry on the business specified in their charter. The 1st Amendment applies *just fine*.
Ironic you specifying the laws of Delaware: that state’s non-existent regulation of corporations charted in Delaware is a scandal that never breaks….
Greenwald is obtuse, as is sometimes his wont.
He begins by saying that the ramifications of the ruling don’t worry him because things can’t get much worse than they already are (which is questionable, IMO). Then he says that outcomes are irrelevant anyway (in which case why the preceding rationalization?).
Then there’s a lawyerly refutation of the idea that ‘money isn’t speech’ along the lines of ‘would you accept a law which says that certain speech was prohibited unless you spent no money putting forth those views?’
My answer is, ‘No – if congress were to pass a law saying that it was illegal to criticize congress unless you spent no money doing it, I would not only object to that, but would also be surprised if it was remotely enforceable. If congress were to pass a law like that (or like the similar others he dreamed up), we’d have bigger problems to worry about than extremely fine points in 1st amendment interpretation. Are laws like the ones Greenwald fabricates even remotely likely? He would counter (perhaps) that that isn’t the point, but I think it is.
Greenwald calls himself a 1st amendment absolutist, but then clarifies that and says ‘more absolutist than many’. See the problem? You can’t be ‘more’ or ‘less’ absolutist. Everyone draws the line somewhere.
Note to some of my lawyer friends here: the law is a tool, invented by humans, to promote ethics and justice; it’s not an end in itself, anymore than a corporation is a real person. Having an evolved Law doesn’t preclude the need to use judgment. Do we have a dearth of free speech in this country? Do we have a free speech problem at all? I don’t detect one.
If anything, we have a free thought problem, but that has to do with how information is shaped, mostly by people/corporations with a lot of money/power.
What’s the use of free speech if what you are obliged to think about – if the frame of reference – is carefully delineated or proscribed by commercial entities (or political parties with their own national propaganda tv station) with an interest?
Greenwald is kind of a twit sometimes, and this is one of those times.
Yup. Well said JB
Gotta agree with JB. Greenwald is often (usually?) insightful and thoughtful, but that piece grated. It felt lazy and a bit hackish. Obtuse is a fine characterization..
McKinney: Ugh, by this standard, any media outlet organized under the laws of Delaware could be prohibited from endorsing a candidate. That plainly violates the 1st Amendment.
I guess my main problem is that the collective, the corporation, as a whole is granted something that the natural persons making up the collective, are not: limited liability. And yet SCOTUS is giving the collective the same 1st A. rights as the natural persons and saying the privilege of limited liability cannot come with a cost.
A practical question for the lawyers here — does this ruling take effect immediately? Like in the upcoming/ongoing health care debates?
CJ: Yes.
That’s bad.
Yes the law is a tool, but you seem to be pretty much brushing by all the historical reasons this country isn’t thrilled about using the government to repress speech.
“A practical question for the lawyers here — does this ruling take effect immediately? Like in the upcoming/ongoing health care debates?”
It takes effect immediately, but so far as I can tell it wouldn’t have any major effect–we aren’t within 90 days of an election, and issue ads of the type you are thinking of have been allowed forever.
Seb,
The government suppresses speech all the time. Some suppressions are more thrilling than others I suppose. But really, the question is where to draw the line, and that’s where the debate should be.
Argue pros and cons of treating a corporation like a human being in terms of speech – while treating it as something entirely different in a whole host of other ways.
Seb’s right about the fact that its effects won’t be felt until late summer.
Seb’s right about the fact that its effects won’t be felt until late summer.
I see. However, I suppose that congressional behavior in the near future, on healthcare for example, could be bought for use now using the coin of an expectation of reelection help next fall. A sort of deferred payback.
“The government suppresses speech all the time. ”
Really? Political speech? Do you have lots of examples then?
Terroristic threats come to mind.
The focus here is on constitutional guarantees regarding free speech and its full extension to corporate entities. Is it possible this ruling could short-circuit any further discussion and/or consideration of a re-institution of the ‘fairness doctrine’ in radio and television talk shows?
So you’re comparing issue ads with terrorist threats?
Sigh.
So you’re comparing issue ads with terrorist threats?
I’m not comparing anything, just answering your question.
Regardless, what’s with “issue ads?” I’m pretty sure plenty of people commenting here have already made the distinction between issue ads and campaign ads for specific candidates just before elections. Don’t fuzz it all up now.
No. They are complaining about issue ads too. That is what people are talking about when they are worried about the ads about health care.
I think you may be reading the issue ads into what others are saying, Sebastian. Influencing the health-care debate doesn’t necessarily mean ads about health care. It can mean ads or promises of ads for or against candidates based on how they vote on proposed health-care reforms. That’s what I think people are talking about.
They could do that outside the 90 window already.
There’s a statement that ought to put your hackles up.
Unrelated: in general, the thing that I see as the most pantswettingly horrible consequence of the SCOTUS ruling is that we might have to suffer through a whole lot of commercials that we don’t currently suffer through, and learn to use the “mute” button more than we already do.
And perhaps I’ll have to always let my answering machine pick up calls to avoid the robocalls. But that measure is already in place. I might have to get a machine with more capacity, though.
For us Orlando residents, it would be nothing more than having a few (possibly several) other sources of things to ignore than Bob Dance “Happy New Year” commercials playing back-to-back, STILL, on every commercial break, in the last week of January.
Seriously. People might be exposed to even more incorrect material than they already are? How are they going to shoehorn that many more ads in around Olbermann and Limbaugh and Beck and Savage?
The real winners here will be the TV and radio networks. If there’s going to be that much more money flowing into corporate “speech”, there’s going to be a bidding war for airtime.
Oh, we’re also ignoring the Personal Injury Attorney “public service” commercials. I’ve been ignoring them so long that I forgot I was doing it.
Filters. Even people dumber than you have them.
JB intermingles law with the constitution. The constitution limits the kinds of laws that can be passed be securing fundamental rights and limiting the ability of one group to legislate away the rights of another. Eric should know this.
Slart, do you really believe that ads don’t change any votes? That their only effect is to annoy people? If so, why are all the candidates and corporations so stupid as to spend money on them?
Of course I don’t think that. I’m pretty sure that I didn’t say anything of the sort. Ads most certainly do change votes, bidirectionally; I’ve discovered a rather marvellous proof that this blog is unfortunately too small to contain.
Yes the law is a tool, but you seem to be pretty much brushing by all the historical reasons this country isn’t thrilled about using the government to repress speech.
I’m not brushing by anything (I was trying to be unlike Greenwald, i.e. not using 8k words for a 50 word comment). I am VERY jealous of my and everyone’s First Amendment rights, and I think the default generally needs to be the least restrictive reading.
But this ruling was the grossest kind of judicial activism: SCOTUS chooses which cases to hear, and they wanted this case, and they wanted to rule very broadly, so that’s what they did. They weren’t remedying any crying or urgent problem. This is pure ideology, shoved down everyone’s throats, since they ‘have the votes’.
“So you’re comparing issue ads with terrorist threats?”
I look forward to this issue ad:
Wackenhut, Brinks, Blackwater, and Under Armor (divulged to us by a really fast-talker at the tail end of the ad, except that the foursome were referred to as Citizens United Against Bombs In The Obamapants) today ran an ad on behalf Senator Jim Demint’s campaign darkly warning of terrorist attacks resulting from the unionization of government airport security workers. Grainy, black and white mock footage was run showing very tall bearded (females, too) government security workers in flowing robes slipping explosives down the pants of unwary air travelers as they passed through security. Images of Osama Bin Laden flashed in the background, as a cracker overvoice repeats the name “Obama” in a vaguely Muslim drone.
In other news, if I’m a person, and a corporation is a person, then that must mean I’m automatically incorporated without going through the paperwork. Further, if corporations are people, and zygotes are people, then capitalist competition between corporations which results in the death of people must now be considered abortion. I look forward to Randall Terry taking vengeance for the murder of all of those small business start-ups.
There was some talk the other thread about the relationship between the First and the Second Amendments. Teabaggers look at that relationship this way: “Hey, say or write whatever you like — have at it. But if you say, as political speech, that you’re going to tax me, my answer is as follows — ‘You talkin to me, you talkin to me?'”
I hope y’all don’t mind my nomination to the Supreme Court.
I’m thinking that John Thullen’s comment could be edited to become a great bar exam question.
“SCOTUS chooses which cases to hear, and they wanted this case, and they wanted to rule very broadly, so that’s what they did.”
Well they wouldn’t have had a case to choose if the government weren’t so broadly using its power to censor core political speech. Even Phil doesn’t try to defend the actual use of government power in the case at hand.
And first amendment cases traditionally are not drawn narrowly–precisely because the court knows that forcing people to litigate their speech produces a chilling effect on speech. Hell, we knew this was unconstitutional when Congress passed it.
It is interesting that so many people here want to invoke the alleged hypocrisy of a broad ruling without even taking a moment to look at their own judicial philosophy.
*Allegedly* modern liberal jurisprudence is about jealously and broadly protecting essential rights.
*Allegedly* first amendment rights were so darn important and content based restrictions were so darn difficult that to protect the core of political speech Justices like Brennan just gave up entirely on policing most of obscenity.
*Allegedly* liberals understood that content based speech litigation is pernicious to speech much much further than the speech being litigated.
But I’n not even seeing these issue addressed here. Barely in passing do we see any consideration whatsoever of these allegedly core liberal legal principles. And when linked to Greenwald, who actually bothered addressing such things, he is dismissed as a twit without substantive comment on his legal content by Johnnybutter, Eric Martin and Nombrilisme Vide.
If you think this case reveals some sort of hypocrisy in general legal thinking, perhaps you might want to look closer.
I’ve already linked this comment section for future discussion in my favorites. But maybe this is just your initial reaction–and more considered things are to come. 😉
Eric should know this.
Eric does know this. Your point?
The Constitution protects free speech, yet this country has alwas operated under the notion that there can be limits placed on that free speech by and through laws passed, and that such limitations are consistent with the Constitution if they meet a certain set of criteria.
That is a somewhat fluid standard/criteria, and we are arguing about whether one such limit passes muster.
And Seb, I never dismissed Greenwald, not called him a twit. Come on Seb, you can do better than to put words in peoples’ mouths.
*Allegedly* modern liberal jurisprudence is about jealously and broadly protecting essential rights.
*Allegedly* first amendment rights were so darn important and content based restrictions were so darn difficult that to protect the core of political speech Justices like Brennan just gave up entirely on policing most of obscenity.
*Allegedly* liberals understood that content based speech litigation is pernicious to speech much much further than the speech being litigated.
Seb, if you don’t consider a corporation a human being with Consitutional rights normally reserved to corporations, a lot of that drops away.
Eric, you “well said” without further comment to JB. Was that not Johnnybutter?
“The Constitution protects free speech, yet this country has alwas operated under the notion that there can be limits placed on that free speech by and through laws passed, and that such limitations are consistent with the Constitution if they meet a certain set of criteria.”
Yeah, and one of the set of criteria was that political speech is pretty much untoucheable. You don’t get to say “meet a certain set of criteria” and then just wave it off and pretend to be in the liberal-rights-jealous tradition.
“That is a somewhat fluid standard/criteria, and we are arguing about whether one such limit passes muster.”
Yeah, except unless I’m missing your comments. You aren’t. You just state that it is ok. I haven’t seen carefully considered comments or posts from you weighing out the traditionally understood problems. I haven’t seen you even do more than allude to them before waving them away.
Maybe all sorts of careful balancing is going on in your head. But I certainly can’t see that if you don’t bother to share it.
All I see is you amen brothering some rather dubious assertions.
Did I miss something?
Oh .. obscene corporate political advertising?
Now we’re talking.
The RNC could get Janet Jackson to slip a booby during Superbowl half-time, as long as the breast in question was signed “Obama sucks!”
“Seb, if you don’t consider a corporation a human being with Consitutional rights normally reserved to corporations, a lot of that drops away.”
No it doesn’t. Because then, unless you are far more anti-corporatist than I suspect, you still have to protect the Constitutional rights of the people who make up the corporation.
To take a more traditional problem, the Court protects the people who make up a corporation from having their assests seized by the government by imputing their ownership to the corporation.
And you don’t seem to be taking very seriously the magnitude of what the government was claiming. According to the ACLU, the FEC was claiming the right to block publishing of new books mentioning candidates by name which were published during the McCain-Feingold quiet period if published by a corporation (which of course they all are).
That wasn’t a proposed law. That wasn’t a considered law. That is the law actually passed by Congress to protect their incumbents.
The government abuse side already fulfilled its bad hypotheticals.
Yet you brush them aside.
Eric, you “well said” without further comment to JB. Was that not Johnnybutter?
Jeebus Seb, do I have to itemize every single factoid that I agree with in a comment, every turn of phrase, and then list every instance of same that I don’t agree with every time I say, “well said.” I agreed with the general thrust that Greenwald had this wrong.
Yeah, and one of the set of criteria was that political speech is pretty much untoucheable. You don’t get to say “meet a certain set of criteria” and then just wave it off and pretend to be in the liberal-rights-jealous tradition.
Not necessarily. There are laws about political speech that rises to the level of incitement.
Further, what is most protected is political speech by people. Are corporations people? People that own corporations are people, and the law in question didn’t limit their right to speak at all. The question comes down to corporate personhood.
Despite your evasions, Sebastian, this is ONLY a free-speech issue if a corporation *IS* a person *AND* covered as such by the 14th Amendment.
As *you* allege by refusing to address the core issue here & ducking behind straw men & red herrings instead.
Yet even if your allegation were completely correct and the matter were entirely settled (neither is true), then it would follow that a corporation could have ONLY the rights that natural persons have. Otherwise, natural persons are put at a permanent and insurmountable disadvantage in relation to corporate persons. This is not only diametrically opposed to the intentions of the Framers and the first 100 years of law & precedent (in *every* state), but is also the exact opposite of the conservative view you claim to espouse. It is a radical transformation – , but there’s nothing conservative about it.
It’s not the Civil War you guys want to undo – it’s the American Revolution itself.
The general thrust of JBs comment was that Greenwald just doesn’t understand the magnitude of the
terroristcorporate threat.Greenwald’s legal points were ignored as were his points on why we so jealously guard the 1st amendment. If you think that is a “well said” response you really aren’t in the liberal tradition of the 1st amendment.
“Not necessarily. There are laws about political speech that rises to the level of incitement.”
And the fact that you have to reach all the way to incitement (advocating violent, imminent, lawless action) pretty much makes my point. According to Brennan in Brandenberg advocating for the KKK, and suggesting that you don’t mind seeing unspecified black people being lynched, should be protected by the first amendment unless they are advocating an imminent lawless action.
That is why I want to talk specifics instead of resorting to “this country has alwas operated under the notion that there can be limits placed on that free speech”
In order to defend your assertion you have to go all the way to the fact that we will let Nazis march through Jewish sections and let the KKK speak unless they are advocating imminent violence.
This doesn’t even come close to that.
“Further, what is most protected is political speech by people. Are corporations people? People that own corporations are people, and the law in question didn’t limit their right to speak at all.”
Of course it does. It purports to limit blogs on websites owned by corporations (all blogspot blogs for instance). It purports to apply to the unions. It purports to apply to the ACLU. It purports to apply to Planned Parenthood. It purports to apply to books individually authored but published by any corporation. It absolutely limits individuals and individuals acting in groups. Didn’t you see what the government was claiming was ok under the law? It was crazy.
“Further, what is most protected is political speech by people. Are corporations people? People that own corporations are people, and the law in question didn’t limit their right to speak at all.”
It feels like you are ignoring the paragraphs and paragraphs of discussion on the NYT.
Congress isn’t supposed to abridge the freedom of speech and of the press. The press isn’t a class of people (see nearly all of the jurisprudence on the issue) but rather the instrumentality of publishing.
Your formulation strongly suggests that the NYT, as a corporation, has no protectable 1st amendment rights. Further you are suggesting that under the law in question, it not be allowed to mention candidates by name during the quiet period. Since I think you can’t possibly mean to suggest that, you have a problem.
That problem could in theory be resolved by creating (which would be a new Constitutional construct) a special class of people with special rights that go beyond want normal people have. This would allow reporters to have access to corporate presses. I guess we could envision such a jurisprudence.
But realize that would be a new, and rather elitist thing. That isn’t the state of the 1st amendment now, nor was it before the most recent ruling.
you still have to protect the Constitutional rights of the people who make up the corporation.
I’m now starting … dimly … to understand what your issue is. Maybe.
To me, the humans do not “make up” the corporation, in the sense of being part of it. The corporation is a legal construct that protects them, the humans, from certain problems. It’s like a building: it is not “made up” of the humans it protects, and they can move in and out of it at will.
The building — the corporation — has no human or civil rights, because it is not a human being. The fact that US law currently gives corporations partial human status is not something of which I approve: I consider “corporate personhood” a sociopathic abomination.
Anyway, to me the analogy is this: “corporate political speech” is like the building owner putting a huge sound system on the roof to blare out his political beliefs night and day. It becomes very difficult for actual human beings to have conversations down on the ground, because the building has given the owner such power over the whole social space.
But it seems to me that Sebastian (and 5 members of SCOTUS) are saying, “the building has rights, too! how dare you restrict the building’s speech!” Or maybe it’s that the owner has rights, and those rights include the right to be protected by the building (from, say, the squashy tomatoes of civil discourse) while using the building’s power to amplify his voice.
I think maybe I’ve gotten tangled in my own metaphor.
In any event, I don’t see why the idea that powerful people should get *both* extra protection (via limited liability) *and* extra volume for their speech doesn’t repell you. But maybe my theory about the essence of conservatism is right: political conservatives *like* and desire that those who are at the top of the power hierarchy should stay there. Maybe you find it reassuring that very wealthy people should have their way smoothed to drown out any other voices.
I never dismissed Greenwald, not called him a twit.
Yes, please don’t put words in someone else’s mouth. That was all me (not Eric). And I didn’t ‘dismiss’ him, nor pass a final judgment on him as a twit. I often very much agree with his point of view (although he can be rather long-winded). I said that he can be twittish sometimes, and that this is one of those times. He is falling here into a classic liberal trap, e.g ‘I will now spend 9000 words to discuss your rights and obligations vis a vis which instrument and method you use to cut my throat.
Well they wouldn’t have had a case to choose if the government weren’t so broadly using its power to censor core political speech.
Were they actually censoring political speech? I don’t concede that they were.
Look, I know that regulating political spending is tricky (and remember, we aren’t even talking about speech here, but spending). I know that it isn’t simple. But oughtn’t the Judicial branch have a compelling reason or interest when doing something radical like this? You aren’t answering the basic question I posed earlier: is free political or any other speech really at dire risk in this country? Aside from some Quakers getting harassed because they were against the Iraq war, I don’t see a lot of evidence that it is, Brett’s paranoid fantasies notwithstanding.
And I would bet everything I own that if the shoe were on the other foot, the majority on the court, and you, Seb., would be arguing the other way. Fundamentalism is, by definition, a narrow, rigid, ideological program. A fundamentalist is a self-appointed judge and jury as to the question of what is and isn’t ‘fundamental’. ‘Originalism’ has proven to be laughably subjective, and Bush v Gore (‘one time only’) is hardly the only example (just the most obvious).
As some ‘conservatives’ enjoyed repeating in the last several years, ‘the Constitution is not a suicide pact’. I contend that conservatives and ‘originalists’ are very selective – and quite subjective – about what is and isn’t a threat to this country and its institutions. I agree with that wild-eyed anarchist TR, and others, that unlimited and unaccountable political spending on the part of very large corporations is a very big threat to this democratic republic, and you don’t think it is; that is the real argument. May we just call it what it is, and skip the lectures about the 1st amendment?
One final note about Greenwald. He says that outcomes are not material, and of course he’s right in a narrow sense. But, of course, outcomes really *do* matter in a more general sense, don’t they? I called him twittish because, like a lot of liberals, he foolishly assumes that his adversaries are as intellectually honest and dispassionate as he is. He knows there’s a forest, but can’t help getting lost in the trees.
The reactionaries at SCOTUS aren’t like that. They know what they’re about and they make their agenda happen. It’s enormously helpful to have brilliant minds like Scalia and Roberts couch it all in legal arguments (it keeps people like Greenwald busy!) but let’s not pretend that they’re being mere ‘umpires’. This is a political agenda, period. Nothing wrong with analyzing and arguing at length, but you can’t forget that, in the end, it’s a political, not an intellectual, contest.
“Were they actually censoring political speech? I don’t concede that they were.”
How is banning the broadcast (on pay per view no less) of a documentary on Hillary Clinton NOT censoring political speech?
“He is falling here into a classic liberal trap, e.g ‘I will now spend 9000 words to discuss your rights and obligations vis a vis which instrument and method you use to cut my throat.”
Ugh. Yes, that is your assertion. Like the war on terror, or the war on drugs, you feel that your concerns mean that serious people need to abandon Constitutional rights for the good of the country or everything will fall apart.
It isn’t *impossible* that you are right, but the bar for the successful use of that kind of rhetoric ought to be fairly high.
You haven’t even tried to approach it.
Your formulation strongly suggests that the NYT, as a corporation, has no protectable 1st amendment rights.
Is Boeing Inc. a newspaper company?
To me, the humans do not “make up” the corporation, in the sense of being part of it. The corporation is a legal construct that protects them, the humans, from certain problems.
Thank you, Dr Science.
Tell me, Seb, is it unconstitutional to bar poll workers from engaging in political speech while working the polls? Is the Hatch Act unconstitutional?
Um. Really? And here I thought it was because the lower court found it to be a video with no intent beyond influencing the outcome of then-Senator Clinton’s election, despite CU’s blithe claim that the timing of its publication was just a happy coincidence. Intent matters in law, right?
Also, I’ll join in on denying that I called GG a twit. I said the piece seemed obtuse (which it did, for reasons JB mentions), and that it felt lazy and hackish (for those reasons, and for some stylistic ones I didn’t mention, but will if pressed).
How is banning the broadcast (on pay per view no less) of a documentary on Hillary Clinton NOT censoring political speech?
But the court did not restrict itself to that issue. (So much for “judicial restraint.”)
Instead, it used the issue as a crowbar to open.. (what? a can of worms, Pandora’s box? embarassing to be caught mid-metaphor like this)
Anyway, the ruling is vastly broader than it needed to be, and opens up some very unattractive possibilities, and the logic underlying that breadth is very shaky.
I think the SCOTUS ought to make up its mind whether corporations are persons or property. Don’t we have a Constitutional amendment that says it can’t be both?
–TP
>> “The government suppresses speech all the time. ”
> Really?
Yes.
> Political speech?
Yes.
> Do you have lots of examples then?
Yes. Google “free speech zone”.
Both national parties have been complicit for about a decade; the courts have looked the other way.
Also see the pre-emptive police raids and mass arrests of _potential_ political protestors (there’s your association of citizens, whose rights you seem to so prize) before the Republican convention in the Twin Cities. Almost all charges were tossed out by the courts, eventually, but the citizens who were thought likely to say things the Rs didn’t want to hear spent the critical day or two in jail. Absolutely prior restraint of political speech. Ms. Beyerstein can fill you in if you have forgotten.
Not to mention the abuse of classification of information, epidemic in the Bush 43 years, to prevent public disclosure of facts deemed politically unfavorable to the mis-Administration.
“Almost all charges were tossed out by the courts, eventually, but the citizens who were thought likely to say things the Rs didn’t want to hear spent the critical day or two in jail. Absolutely prior restraint of political speech. ”
Freaking brilliant. So you want to compare acts which were illegal, to a law which would have made violations legal? Huh? How does that work?
Should I use Bush’s illegal torture as proof that we should make laws allowing torture? Do you see the logical problem?
If you want me to talk about how much I hate how prosecutorial discretion and police arrest are misused, I’m all for it. And ummmm, on your side. Just for the record.
Can anybody suggest for us nonlawyers a good review/discussion of the origins and subsequent evolution of this “corporation as a person” thing? I understand it goes back to the late 19th century. Much seems to hinge upon this, to me, curious notion.
Should I use Bush’s illegal torture as proof that we should make laws allowing torture? Do you see the logical problem?
Why not. You’ve used the argument that since corporations already improperly use PACs to influence elections, we should just let them do it without restraint on their own.
Seb,
How does a ‘corporation’ decide what it wants to ‘say’, and how much money it wants to spend saying it? Does it do the bidding of its owners, like a slave, or does it have a mind of its own like a sovereign citizen with inalienable rights?
I’m serious when I ask whether ‘corporations’ are persons or property. I am willing to accept one or the other, but not both. We rightly decided long ago and after a very bloody argument that persons cannot be property in this country. Persons are too … sacred? … to be anyone’s property. We do not respect anybody’s right to own another person, in very large part because persons have rights. But surely none of us would advocate manumission for corporate persons. Nobody wants emancipation of Corporate-Americans from their owners. Right?
–TP
“Why not. You’ve used the argument that since corporations already improperly use PACs to influence elections, we should just let them do it without restraint on their own.”
Ummm, no. I argued that the sky wasn’t suddenly going to fall over this ruling because any corporation which wanted to run ads already had PACs.
Ie, the commercials you claim to be worried about suddenly starting up have been legal for decades.
If you want to worry about them, fine. But if you are annoyed at the Supreme Court over that, you’re being silly–those things already are here. Any politically interested corporation already did that. That is what I’m saying.
It is as if you are worrying that building a dam is going to cause your river to go dry and I point out that the dam isn’t attached to your river at any point. You can still worry that it is going dry. You may even be right to worry. But it has nothing to do with the dam.
If you want a good overview of corporations/entities/persons try
here
here
here
here
Typical and useful insight: When I criticize decisions like Kelo v. City of New London, the objection is not that government has violated the rights of land or buildings, but those of the people who own them.
Thanks, Sebastian
Well done! It would have been a bit more effective, though, if you’d been able to combine that with a desire to own women and minorities as property, and to tar and feather folks that have different beliefs.
But well done. A rhetorical tarring-and-feathering is so much easier to clean up after.
At least we agree about Kelo!
I can’t wait to see which candidates foreign-owned corporations will support. Maybe we’ll get single payer after all. And prescription drugs will have to come from China!
Sebastian :
Please note that I have made no argument for or against the recent Supreme Court decision, nor did I address any of your arguments in favor of that decision. In point of fact, you are causing me to rethink this entire area.
My only contribution was to point out that one of your assertions (that the government does not currently suppress political speech) is wrong on the facts. I’m glad we both agree that this is a bad thing.
Carry on.
If corporations are persons with political rights, maybe Hewlett-Packard should run for the Senate against Boxer. It’s old enough,
and was born in Palo Alto California.
If you want a good overview of corporations/entities/persons try
The links you provide are a good overview of your arguments, Seb. Not a bad thing, since Volokh is (and you are) certainly smart, but I wouldn’t call that stuff a general overview. There are people worth mentioning – like Justice Black, Thomas Jefferson, and others – who have a different pov.
____
Imagine if you will: The year is 2035. With very few exceptions, corporate America is bankrupt. Most major industry is nationalized. Membership in the ‘big four’ unions is 73%, and they, directly or indirectly, finance a large percentage of political campaigns. Buying a politician is still the outrageously sweet, super-leveraged deal it’s always been, but they are still somewhat hampered by campaign finance laws which limit the amount they can spend as a group for and against various candidates and causes. With tens of billions of dollars per cycle at their disposal, the unions agitate for years to change or strike down these laws. SCOTUS decides to hear a case tangential to this issue, and makes it clear than they want to use it to strike down such laws. Which side does Sebastian (or Justice Thomas) argue?
gosh, I wonder..
Greenwald part 2
link
As a non-lawyer it seems to me that Glenn and Sebastian have shown the personhood argument against this ruling isn’t relevant. According to Glenn the SCOTUS dissenters were making a “compelling state interest” argument, which I gather is the same as an outcomes based argument.
Donald Johnson, Glenn oversimplifies the court’s decision in a number of ways. And the personhood argument IS relevant. For example, in discussing the distortion of the political process by the unequal power of corporations vis a vis persons, Stevens states: “The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to ‘First Amendment principles’ depends almost entirely on the listeners’ perspective, ante, at 1, 48, it becomes necessary to consider how listeners will actu ally be affected.”
Glenn apparently doesn’t believe that any balancing is necessary despite the hugely unequally loud voice that corporations have. But constitutional balancing is not “outcomes based” as Glenn suggests unless one wants to destroy a huge body of Constitutional law affecting economic laws and regulations of many varieties.
This piece by Glenn is better than the other one, but it still has the same basic flaws, from my perspective:
– He argues against a strawman when he says that opponents of the decision are wrong to base their opposition on the idea that a corporation has no 1st Am rights. While there may be some who argue that, the more difficult argument to refute is the dissenters, viz, that some rights can be abridged when there is a compelling State interest.
– He hectors us to the effect that rule of law means that outcomes are immaterial. I don’t think it would be too hard to imagine some outcomes which would change his mind on that. And I notice that he is at pains to cite sources which say that the impact of this decision won’t really be so great anyway; and he also links Romero from the ACLU talking about how hard former law was on his organization, etc. So, do outcomes matter or do they not?
– It’s a mistake to pretend that the law is entirely outside the realm of politics. Doing so actually plays into the hands of people who would use the law to their political ends.
BTW, FWIW, if the court had ruled narrowly in favor of Citizens United I wouldn’t have batted an eye.
JB, Greenwald mentions the concept of compelling state interest, and it seems to me that the point of arguing that the impact won’t be that great is precisely to show that there is no compelling state interest. Certainly he may be wrong in his analysis of the impact, but I don’t see anything contradictory.
Hmmm. Could be, KC. But the analysis of the impact doesn’t seem to me to be explicitly part of his argument (and it’s not *his* analysis, it’s just a link to somebody else’s, and he doesn’t evaluate it). His argument is that outcomes aren’t material (except, presumably, when they might be, which is why he’s ‘more’ absolutist rather than just ‘absolutist’).
I still think it’s muddled.
If you want a good overview of corporations/entities/persons try
The thrust of the pieces you cite is this: when corporations engage in public activity such as speech, they are really just the instrument by which natural human people are acting.
That’s sort of true. And the people who are acting are the folks who decide how to deploy the corporations resources. That’s normally operational management, and maybe the board.
However, the millions of dollars that corporate officers spend on lobbying, PAC contributions, etc., are *not their millions of dollars*. Those millions of dollars actually belong to other people, namely the shareholders of the corporation.
Corporations as we know them now didn’t really exist in a significant way when the nation was founded. So regulation of corporations was left to the states.
It was typical for states to impose very strong restrictions on corporations for the first 100+ years of the nation’s history. Corporations were viewed with suspicion if not hostility, as entities that could potentially accumulate excessive wealth and power.
States reserved the right to revoke corporation charters at will if corporations exceeded the scope of activities that they were specifically chartered for. Corporations could not own other corporations. Corporations could not operate outside of the state they were chartered in, and/or were required to maintain their headquarters and primary base of operations in the state they were chartered in. Corporations were granted charters for only limited periods of time. Corporations were prohibited from contributing to political campaigns or engaging in political activity of any kind.
All of the above were common, normal, and uncontroversial restrictions on corporations under the various state laws they were chartered by.
The earliest point at which the rights of corporations comes up that I’m aware of is the Dartmouth case in 1819, in which corporations won the right to have contracts they engage in given the same weight that contracts between natural human persons engage in. That decision was considered controversial at the time, because it was seen as a dramatic weakening of the ability of individual states to manage and intervene in corporate activities.
The idea of corporate “personhood” was really taken up by the railroads, starting in the middle 19th C. In 1847, the Illinois Central railroad sued to be exempt from various local taxes because Illinois state law at the time required uniform taxation for all persons in Illinois. The legal term “person” was commonly used for corporations, so the argument was that they therefore also deserved the full legal status of human persons.
Lincoln argued the case for the railroad before the Illinois Supreme Court. He lost.
After the 14th Amendment was passed, the railroads took up the same argument in numerous cases before the SCOTUS.
They lost, consistently, until the Santa Clara v Southern Pacific Railroad case, which is typically cited as the precedent for the doctrine that corporations are entitled to equal protection under the laws by virtue of being persons.
Oddly, that conclusion is not part of the actual decision of the court, which chose not to rule on that part of the railroad’s claim. It shows up as an assertion in the headnotes to the decision, authored by the court reporter.
And the rest of the history, amazingly enough, flowed from that.
The NYT stuff is an interesting issue, but since freedom of the press, which as you point out refers to the instrumentality of publishing, is called out specifically in the 1st Amendment as a freedom distinct and in addition to speech, my guess is that we could find a way to both keep for-profit corporate money the f**k out of the political process, *and* have a free press, if we wanted to.
IMO at this point it would take an effort similar in scope to eliminating chattel slavery to unwind the doctrine of corporate personhood from US law. It’s that woven into the economy and legal structure, there’s that much at stake in terms of sunk wealth invested, and there would be that much resistance if not more.
But as long as for-profit corporations can involve themselves in the political process by lobbying, participation in PACs and other advocacy groups, and direct contributions to political campaigns, that process will continue to be corrupt and not representative of the will of the people.
If United Citizens stands without significant remedial action by the congress, the consequences are going to be enormous, and negative. We will move from lobbyists literally writing law, to corporations literally buying legislators.
And it won’t cost that much. They only have utterly bury a handful for the rest to get the message.
Corporations are not people. They have no inherent inalienable rights. They are legal constructs that exist to encourage the accumulation of capital, and nothing more, and they do not deserve the rights guaranteed to the people by the Constitution.
They are not just a bunch of people getting together to act collectively. Political advocacy groups, not for profit, made up of natural human persons, operating under the corporate form, different story. Other than that, corporations should stay the hell out of the political process.
Does it do the bidding of its owners, like a slave, or does it have a mind of its own like a sovereign citizen with inalienable rights?
Well, obviously corporations have minds of their own, and should be allowed to act as it pleases instead of being forced to do the bidding of its owners. It is such injustice to make the poor chattel corporation obey its owners rather than thinking for itself with its own mind, the board of directors.
(Couldn’t resist the chance to go out with a bit of pointless snark.)
I appreciate the legal background presented here by those on either side of the argument.
I have a little more visceral reaction to the issue (No kidding?)
Washington Monthly has a little blurb this morning about the Republican Lt. Governor of South Carolina (beautiful State; too bad about the vermin infestation) ‘splainin’ that poor folks on public assistance are stray dogs and that free school lunches make them dependent and stupid and liable to breed.
Now, in one week’s time, we have the Republican Party chortling over a legal ruling that says a corporation is as much of a person as my Aunt Charlotta, and you’ve got a Republican officeholder calling my Aunt Charlotta, who received public assistance for a little while during her life, a stray dog.
Now it may be that the honorable LT Governor is running for higher office and has Ralston Purina as his main corporate backer, and they’ll be running ads in his favor under the guise of “Citizens/persons United for Kibble Filler in School Lunches”, and all they are angling for is to sew up the school lunch contract in South Carolina (beautiful State, too bad about the sh#thead infestation), but ..
…. methinks, we have a much bigger problem with categories in our fine country of Germany in this year of our Lord, 1928.
Kevin Drum has a good (and more charitable-than-mine) response to Glenn G. here. A germane excerpt:
I argued that the sky wasn’t suddenly going to fall over this ruling because any corporation which wanted to run ads already had PACs.
Sebastian,
My understanding, from some quick Googling, is that PAC’s accept contributions from individuals, not corporations, though corporations may spend money to operate them.
That’s not quite the same thing as the corporation itself spending money. Microsoft is richer than Bill Gates. Laws benefitting Microsoft are more valuable to it, as a corporation, than they are to Gates. So the incentives are much bigger for Microsoft.
One of the interesting things here is that this seems to be a battle over categories and distinctions, and the way you make distinctions determines your position.
For defenders of the decision there is no difference between the ACLU and Google. “Both corporations, don’t you see?” There is, on other hand, a huge gulf between direct campaign contributions and independent expenditures. All the difference in the world. And here you are telling us that a PAC is just like a corporate expenditure.
But the ACLU and Google, both corporations, are two entirely different things, just like a Volkswagen and a Boeing 747 are two entirely different things, despite both being “transportation vehicles.” Finding some category into which two things both fit doesn’t make them the same.
Similarly, independent expenditure are not actually much different from campaign contributions. They have the same goal, and the money is spent on the same types of activities.
And finally, PAC’s are different than corporate contributions. For one thing, they rely mostly on individual – hence actually voluntary – contributions. For another, related to that, despite their size they don’t command the kind of funds big corporations do.
I think this first distinction – ACLU vs. Google – is the most important, and it is one the court spent a lot of time dodging. Why they did that is left as an exercise for the reader.
russel skrev :
And the Founders and the States had a very good reason to view corporations with suspicion and hostility; the British East India Company was, in the eighteenth century, existence proof that a commercial interest with enough money could essentially purchase the government policies that it desired for its own ends. (In the first decade of the eighteenth century, the Company loaned the British Treasure 3.2 million pounds sterling, equivalent to about half a billion of today’s US dollars. In return, the Company was guaranteed a continuation of its absolute monopoly on trading in tea.) The East India Company’s influence on British government grew with its wealth, and by 1757, it had become the de-facto government of the Indian sub-continent.
The Boston Tea Party was an act of civil disobedience against the East India Company’s government-granted market in tea. And the East India Company held that monopoly because it had employed its vast wealth to purchase the monopoly charter from the British Government.
Thus, one of the seminal acts of the American Revolution was a revolt against a multinational corporation using its wealth to purchase a government policy (the Tea Act) that vastly increased the wealth of that same corporation, but that economically harmed most people and stifled American entrepreneurs (whose fast ships and low overhead would have allowed them to undersell the East India Company monopoly)
“If United Citizens stands without significant remedial action by the congress, the consequences are going to be enormous, and negative.”
Election experts don’t agree with you politico
The basic thrust of their discussion is that:
A) the disclosure requirements (which were not struck down) make many corporations reluctant to alienate their customers;
B) that much of the expression has been through trade associations for which this change in the law means nothing because they could already give unlimited funds to them;
C) that it is likely just to shift money from 527s which were formed to channel money to particular causes.
Bernard:
The problem in the free speech area is that litigation has a chilling effect on speech. That is one of the reasons we are so lax on obscenity–having tighter rules would mean that legitimate but near the edge cases would have to spend enormous amounts of money defending themselves. So even in non-core non-political speech we give huge amounts of leeway to avoid chilling legitimate speech.
You might be able to neatly sever ideas about Google from the ACLU, but a documentary on global warming produced by NOVA and released at the wrong time would almost certainly be subject to litigation. And even in the Google case I don’t think you would always be right. If Congress wanted to do something really stupid with search engines, Google would have a complete 1st amendment protection to complain about it publicly.
And I want to reiterate a point made by Greenwald. The corporate personhood question was not decided on 5-4 grounds. None of the Supreme Court justices are arguing against that in this case.
“None of the Supreme Court justices are arguing against [corporate personhood in this case.”
Sebastian, it’s true that the dissenters don’t argue that corporations aren’t persons, but Stevens most certainly (in an excerpt quoted above, and in surrounding text) argued that corporations are not the same kind of persons as natural persons for the purposes of First Amendment protection. In other words, one thing is NOT like the other. Did you read the dissent?
No, it seems to me that Stevens is arguing that compelling government interest
to have special investigations of Muslimsis so strong as to defeat the normal first amendment concerns.“For defenders of the decision there is no difference between the ACLU and Google. “Both corporations, don’t you see?””
For the drafters of the law being challenged, there was no difference between the ACLU and Google, either. So, in that sense, the Supreme court was paying deference to Congress.
Here’s something I don’t understand. Sebastian made the point that he disagreed with the Kelo decision based on the rights of the owners of property being abridged (as opposed to the rights of the property), which, in and of itself, is fine. I have to assume that he mentioned this to show a parallel between such property and corporations to illustrate that the restrictions placed on corporations abridged the rights of the owners and/or the employees of those corporations. Assuming I’m correct about that, I’d like to conduct a thought experiment.
Let’s assume I’m unemployed and do not own a corporation or any stock in a corporation. Given that, I’d say that restrictions on corporations would have no effect on my 1A rights. My 1A rights are in full effect and unabridged regardless of any corporation’s situation under the law.
Now let’s say I land a job at Acme Corporation (famous makers of devices popular with coyotes looking to get themselves some roadrunner and arch-rivals of Ajax Corporation) and/or inherit stock in Acme Corporation. How have my 1A rights changed as a result of my new association with Acme Corporation? What is it that I cannot do now that I could before?
It was a stunning day for democracy in America.
But not unpredictable.
The real question is, how did our Supreme Court get this radical in the first place.
What else?
….
Sebastian, the trouble with your snark is obvious to most people: Muslims are humans, entitled to nondiscriminatory Constitutional (and human) rights. Corporations aren’t.
JFTR, Bernard – I liked what you had to say so much (January 24, 2010 at 12:49 PM) I quoted you on a discussion thread on Feministe.
“Sebastian, the trouble with your snark is obvious to most people: Muslims are humans, entitled to nondiscriminatory Constitutional (and human) rights. Corporations aren’t. ”
You’re missing the snark. Many of arguments of the war on terror centered around the idea that we couldn’t afford to stick to the Constitutional rights because the sky was falling.
“The links you provide are a good overview of your arguments, Seb. Not a bad thing, since Volokh is (and you are) certainly smart, but I wouldn’t call that stuff a general overview”
Ok, then I guess propose your own links. Most general overviews are going to contain information about why corporations are generally treated as persons for legal puroposes because that is the state of the law and frankly because it makes quite a bit of sense–you don’t have to reinvent thousands of legal wheels just because you are dealing with a group of people with rights acting together.
And the exceptions are kind of obvious too. You don’t put corporations in jail because they dont have separate bodies.
“And the exceptions are kind of obvious too. You don’t put corporations in jail because they dont have separate bodies.”
They also don’t have the right to vote, so you don’t let them have unlimited influence on political campaigns. Kind of obvious.
“so you don’t let them have unlimited influence on political campaigns”
And this is why I feel comfortable with the war on terrorism analogy. ‘Unlimited influence on political campaigns’? You really believe that? And you weren’t convinced by the ticking bomb scenario’s Bush was peddling?
Thanks, jes.
a group of people with rights acting together.
That’s a reasonable description of a fairly small number of the organizations and institutions that operate as corporations.
It’s an accurate description of very few, if any, for-profit corporations, and virtually none that are publicly traded or that are of any size.
With all due respect, it’s somewhere between deliberately disingenous and childishly naive to not recognize this, and not acknowledge and account for it in discussing them.
The “corporations are just people acting together” line of argument is crap. It is, at best, a pollyannaish representation of what corporations are, and how they function, in the real world. Again, with all due respect.
It’s a serious topic, and deserves a serious discussion.
“Given that, I’d say that restrictions on corporations would have no effect on my 1A rights.”
You’d be wrong, if you were a member of any organized interest group, such as the NRA.
You’d be wrong if you want to be able to count on your local newspaper not being censored.
You’d be wrong if you want to be able to count on the bookstore not being censored.
You don’t grasp, or perhaps don’t care, how far reaching the Obama administration’s claim of power to censor really was. Let me put it in terms a Democrat might care about:
If the Bush administration had held the same position on it’s powers under the BCRA, they would have thought themselves empowered to order Barnes and Noble, (A corporation, you see.) to not carry “The Audacity of Hope”.
Practically all publishing and broadcasting is done through corporations. If the 1st amendment doesn’t apply to corporations, the power of the government to censor core political debate is virtually unlimited.
Sebastian boggled:
‘Unlimited influence on political campaigns’? You really believe that?
If you changed Sapient’s statement to “No practical limit”, then yeah, I believe it. I believe that *in practice* Citizens United removes the (already very low and small) barriers to large corporations getting pretty much all of what they want from politicians, pretty much all the time.
Compared to what I can spend, a major corporation’s spending is *effectively* unlimited. Yes, it’s not actually mathematically infinite — but it converges on infinity for real-world purposes.
Does it not seem that way to you?
Does it seem large? Yes. Comparable to the already existing incumbent advantage? Probably close. Larger now than before? I haven’t seen any practical reason to believe so.
Ok, then I guess propose your own links. Most general overviews are going to contain information about why corporations are generally treated as persons for legal puroposes because that is the state of the law and frankly because it makes quite a bit of sense
If the details wasn’t contentious, we wouldn’t be having this argument, Seb.!
I don’t want to be unpleasant, and do realize that at times in this thread I’ve committed the sin I accused Greenwald of – namely, that of hectoring. But this is awfully important, IMO, and I think a discussion here ought to be very different from that in a courtroom, with two attorneys arguing the position they’re being paid to argue – IOW, making their arguments fit the conclusion they are obliged (or prefer) to reach. That is to say, it’s not an intellectual game, even though, obviously no one is getting paid here.
That’s why I posed the scenario about defending the 1stA rights of very powerful unions (as groups). I can’t prove it, of course, but it is just about inconceivable to me that a Scalia or Thomas would have the same position they do – would go out of their way, with the re-argument, etc., to make a sweeping change like this – if it was already-powerful unions’ 1stA rights which were in question. And unions aren’t even really analogous, since they are democratic (at least in theory) in ways that for-profit corporations generally aren’t (so their speaking as a group actually makes *more* sense than with the for-profit corp). Yet, it’s practically unimaginable that the same arguments would be used if it were those unions’ rights at issue; indeed, they probably wouldn’t be at issue at all if the SCOTUS was constituted the way it is now.
So I think skepticism that this decision is a matter of sheer principle ought to be pretty easily comprehensible.
If the Bush administration had held the same position on it’s powers under the BCRA, they would have thought themselves empowered to order Barnes and Noble, (A corporation, you see.) to not carry “The Audacity of Hope”.
Why isn’t the author’s right, as a natural human being, to free speech sufficient to address this?
Why does the corporation that physically prints and distributes the physical (or electronic, or broadcast) copy of the book *also* require first amendment protection?
In the case of 4th Amendment protections against unreasonable search and seizure, there are limits (or at least used to be limits) on searches that the government could carry out on communications physically held by, or communicated via, instrumental technologies owned by corporations.
I’m talking about phones, email, etc.
The issue there is not whether the corporation that owns the medium through which the communication is made is protected. The issue is whether the human person, whose communications are of interest, are protected.
Why is this different?
russell,
Well yes, that is certainly a completely unrelated question.
“And unions aren’t even really analogous, since they are democratic (at least in theory) in ways that for-profit corporations generally aren’t (so their speaking as a group actually makes *more* sense than with the for-profit corp). ”
This statement is at best an opinion.
By “the rules” both of these organizations place decision making authority in leadership and have the voting ability to replace that leadership on a regular basis. In practice there may be some difference in degree of participation in the voting process but that doesn’t seem to be a particularly strong argument that they should be treated differently.
The same argument does apply to unions. And their members tend to have as much say in day-to-day political advertising as corporations. I’m not sure why you’re so convinced it doesn’t.
“If the details wasn’t contentious, we wouldn’t be having this argument, Seb.!”
It isn’t a very contentious legal matter. You have to go pretty far afield to get to much criticism of it. So feel free to point to it if you can. It is more of a pop criticism.
Russel–I don’t understand your query. There doesn’t seem much difference to me if a corporation hires someone to make a movie outside the corporation (spends money which is what everyone here is complaining about) or does so in-house, which is what you seem to be ok with.
You might be able to neatly sever ideas about Google from the ACLU, but a documentary on global warming produced by NOVA and released at the wrong time would almost certainly be subject to litigation.
Seb, this is to say the least a bit unconvincing coming from you, given your recent dismissive assertion that would-be protesters having their incarceration during or shortly before the events they sought to protest having their arrests overturned in court was proof the system was functioning as desired. Just sayin’.
(Okay, real gone this time.)
best of luck, NV.
Seb, this is to say the least a bit unconvincing coming from you
Right-wingers arguing that Google and Microsoft need their free speech rights defended because if one corporate “person’s” liberty is threatened all our liberties are threateneed… always are unconvincing. Perhaps they feel themselves to be analogous to Google. Perhaps that’s why Marty was so casually confident about claiming that the US has a right to kidnap innocent people, cage them, and hold them indefinitely because of “evidence” obtained by torture, in a recent thread? Corporations do not bleed…
Suffice to say that Marty’s refusal to defend basic legal and human rights on that thread makes me take less than seriously any claim he makes that he’s for basic civil liberties for corporate persons on another thread. A claim which is hard to take seriously anyway.
“Seb, this is to say the least a bit unconvincing coming from you, given your recent dismissive assertion that would-be protesters having their incarceration during or shortly before the events they sought to protest having their arrests overturned in court was proof the system was functioning as desired. Just sayin’.”
Huh? It was proof that it wasn’t legal.
I think I have figured out why the discussion around “corporations” seems like such a red herring to me.
Suppose each one of the 500 biggest business enterprises in the country was owned by one individual tycoon. Would it make any difference whether those enterprises were corporations in form, although sole props in fact?
Frankly, I don’t see how it would affect the pro-ruling side’s arguments at all. If anything, it would make their arguments stronger: let “the shareholders” be for practical purposes a single person and the corporation’s speech rights are effectively his personal rights. It’s all his speech.
On the anti-ruling side, the emphasis on corporations also becomes moot. If a tycoon is entitled to spend all the personal money he likes on “speech”, then it hardly matters whether the enormous corporation he owns has separate free-speech rights or not. It’s all his money.
So it seems to me that the real argument is over the money, and not the personhood, of big businesses. We don’t (yet) live in a country where the 500 biggest businesses and all their money are effectively owned by 500 individual tycoons. But the pro-ruling side (at least) seems to argue that even if we did, we must not restrict the speech rights of money for that would be death to the 1st Amendment.
It seems to me that NOT restricting the speech rights of money is more likely to kill the 1st Amendment — maybe even the 2nd:) — but what do I know?
Anyway, maybe I misunderstand Seb’s principled position. Maybe he would be willing to restrict political spending if someday the Fortune 500 were to become the personal property of the Forbes 400. Whether he could do it without modifying his well-argued principles seems doubtful, though.
–TP
–TP are you arguing that if a rich person, (let’s hypothetically call him James Madison), wanted to influence politics by investing a portion of his net worth in securing a method of publication, (let’s call it a press), for the purpose of anonymously attempting to influence the public on some important-to-him topic (let’s call it the Constitution), by publishing his thoughts on the topic and widely distributing them (let’s call it The Federalist Papers), that you think I should be against it?
As far as money not being the right itself let’s move it to a less charged topic. If Congress forbade the charging for or paying of more than $1 for abortions do you think that would potentially damage the right to abortion? What if it said that no corporation could provide abortions? Abortion rights are clearly held by individuals, and really just women. Yet pretty clearly such a law would impair the rights, wouldn’t it?
Just wanted to voice support for the argument that since
a) corporations are persons under law and
b) slavery – the owning of people – is constitutionally prohibited in the US,
c) the publicly-traded corporation is unconstitutional, as is the privately-held corporation, and the only acceptable form of corporation is the trust. (The trustees don’t own the corporation, they’re its guardians).
Err…what?
Corporations have been around since well before the Constitution was even a glimmer in the Founders’ eyes. The notion that they are expressly prohibited by the Constitution is both unsupported in your reasoning, and historically curious in that if the Founders had wanted that, they could have very well written it in that way.
But you might have something there. Maybe SCOTUS can order the dissolution of every corporation in the US, now.
Oh. Maybe you’re really arguing that corporations are NOT persons under the law.
I’d have little problem with that, in an abstract sense. The law is an ass, sometimes, though.
Me, too.
You’re still going to run into problems limiting the speech of those who speak on behalf of corporations.
Early. Need more coffee.
Slart, it wasn’t meant as a serious piece of legal analysis! I was pointing out that if you go the whole hog in defining corporations as persons (as the authors of the Constitution did _not_ do) then you end up with various rather weird implications.
But I’d love to see someone make this (ludicrous) argument for real. Time for a Corporate Emancipation Proclamation!
Yeah, I got that, ajay, only too late to save myself from a comments pratfall.
A little embarrassment is good for the soul, or so I tell myself.
Well yes, that is certainly a completely unrelated question.
How so? In other words, what’s your point here?
There doesn’t seem much difference to me if a corporation hires someone to make a movie outside the corporation (spends money which is what everyone here is complaining about) or does so in-house, which is what you seem to be ok with.
The question is *whose speech is protected*.
And you read me exactly backwards. If corporation produces a film in house, I would say that should not deserve 1A protection.
For example, GlaxoSmithKline has produced a film about healthy eating habits which it plans to show at Sundance. I applaud them for doing so, and hope lots of people see it, but I don’t believe it deserves 1A protection, because GSK is not a person.
Films produced by human beings, representing the point of view of actual human beings rather than a for-profit corporation, deserve 1A protection.
Under that approach, would corporations simply find some willing film producer and pay them to present their point of view as his or her own? Yes they would. That would be highly likely to happen.
I can live with that as the lesser of two evils.
The question is whose speech, through whatever medium, is protected?
To touch on a couple of points raised upthread, IMO no it is not the money, it is corporate personhood. If natural human billionaire persons want to spend their money on political advocacy, they should be able to do so. They do so now. And, as is now required, contributions should be disclosed.
I’m also fine with applying the same restrictions to unions as I advocate applying to corporations.
Only natural human beings are entitled to constitutional rights.
Are there tricky issues involved there? Yes there are. There are tricky issues involved in *not* restricting constitutional rights to natural human beings.
Life’s tricky.
For-profit corporations are not people. They are not collections of people. They are entities distinct from the people that participate in them.
They live forever, they accumulate staggering amounts of wealth, they operate across state and national boundaries. They are not people.
And as far as the money goes:
The richest man in the US right now is Bill Gates. His net worth is $56 billion, which is a lot of money.
The Forbes 2000 for 2009 lists JPMorganChase as the US corporation with the greatest assets. They have $2,175 billion assets on hand.
As a practical matter, corporations can absolutely bury all of us natural persons in terms of the financial resources they bring to the table.
russell, with respect: you cannot compare “net worth” with “assets”.
JP Morgan Chase does in fact have a couple of trillion dollars in assets, but it also has a shade less than that in liabilities. Corporate net worth is a (fluctuating) function of time, but as of the 2008 annual report, it was something like 166 billion.
Which is still considerable, but it’s only three Bill Gates or so, and not the implied 40.
I think I’d like to see both Sebastian and Brett, particularly, answer hairshirthedonist’s question here:
In practice there may be some difference in degree of participation in the voting process [in unions] but that doesn’t seem to be a particularly strong argument that they should be treated differently.
That’s why I said ‘on theory’. You are deliberately missing the main point, Marty. I didn’t say they should be treated differently. I asked if this ruling would’ve happened if they were powerful and corps weren’t. I think the answer is obvious.
Seb:
The same argument does apply to unions. And their members tend to have as much say in day-to-day political advertising as corporations. I’m not sure why you’re so convinced it doesn’t.
I didn’t claim that this ruling didn’t apply to unions, nor that union members had direct input into what their union’s advertising is. I said unions were relatively democratic organizations compared to public for-profit corps (you believe in representative democracy, no?).
But of course the above wasn’t the main point, which you dodged completely.
You are deliberately missing the main point, Marty.
Maybe not ‘deliberately’ – sorry.
Jb,
Not deliberately, I am now confused. So,is your point that if the unions were more powerful the SC would have ruled differently?
I am suggesting that if unions were as powerful as large corporations are – which is hardly the case at the moment – and corps were weak, conservatives, justices or otherwise, would not be agitating for broader 1stA rights for all corporate organizations. They wouldn’t be arguing this, nor (in the case of justices) choosing to rule this broadly. It’s an unlikely hypothetical, which is why I think it’s telling that Seb. is dodging it; he could just say ‘of course the principle would be the same’, since it’s unlikely he would ever be called on it.
The stuff about unions being theoretically more democratic (which is not debatable) just makes the point more obvious, and is not the core argument.
I think this comment holds just as well in this thread; the two threads may as well be conjoined twins at this point.
russell, with respect: you cannot compare “net worth” with “assets”.
What I’m after here is a comparison of the relative scale of the resources that for-profit corporations bring to the table, as compared to natural human persons.
IMO it’s safe to say that the resources that corporations can, as a practical matter, bring to bear are pretty freaking enormous. Enough so that they can exert enormous influence on public policy.
When I say “enormous influence” I mean they can directly effect public policy.
A corollary to “whose speech is protected” is “who is sovereign”. People — natural human persons — are supposed to be sovereign under the US Constitution. US law and public policy ought to reflect the will of the people they govern.
Why are corporations entitled to that same privilege and consideration?
And a reply of “because they’re people” doesn’t get it. They aren’t people. They have been *granted* some of the status of people by law. That isn’t the same thing.
Also – upthread Brett made this claim:
If the Bush administration had held the same position on it’s powers under the BCRA, they would have thought themselves empowered to order Barnes and Noble, (A corporation, you see.) to not carry “The Audacity of Hope”.
The argument being that, because corporations most often own and operate the instruments by which speech is published or broadcast, depriving them of 1A rights would result in censorship of speech.
I’ll ask the same question I asked about that upthread:
Under the 4th Amendment, your and my personal communications are (or used to be) protected from unreasonable search and seizure. The government could not listen to our phone conversations, or read our email, without a warrant of some kind.
The technology through which email and phone conversations occur is almost always owned by corporations, but the 4A claim to privacy is not based on the corporate involvement. It’s based on the rights of the person speaking.
Why is 1A speech any different? Why is an additional 1A claim for the entities that own and operate the channel needed?
“I am suggesting that if unions were as powerful as large corporations are – which is hardly the case at the moment – and corps were weak, conservatives, justices or otherwise, would not be agitating for broader 1stA rights for all corporate organizations.”
That’s an interesting suggestion, which we’re unlikely to get the answer to.
I, on the other hand, would suggest that, if there were a Republican in the White House, Democrats would be aghast at the administration claiming the power to ban books. Rather than hardly blinking at it during a Democratic administration.
And I see this thread hasn’t changed all weekend, with Brett still trolling and Sebastian denying that there is any possible difference between an actual citizen of the United States and an artifical legal construct with no loyalty or citizenship, and no goals beyond the collection of money. And no difference between said artifical legal construct and other artifical legal constructs designed specifically for the purpose of allowing actual citizens to band together to present their views.
Somehow though, taxes and most other laws continue to manage to make this distinction that neither Sebastian nor the reactionaries on the Supreme Court manage to make.
Acknowledged, russell.
Even Bill Gates’ ability to influence things is pretty freaking enormous, though, as compared with, well, mine.
Money can buy resources, and indeed is just about required to buy resources. I’d guess that it cost JP Morgan Chase just about the same to create a propaganda piece as it would cost Bill Gates.
Probably a more important gauge than net worth is income. JP Morgan Chase has a net income of something like 5 billion a year; I’d guess that Bill Gates’ income (mostly return on investment) is probably a quarter of that.
Not that I think Bill Gates has any kind of evil agenda; just looking at leverage, here.
Not that I think Bill Gates has any kind of evil agenda
Nor I.
OK, maybe Windows Vista, but other than that, no.
Nor do I think that for-profit corporations necessarily have any kind of evil agenda. Lots, if not by far most, of them intend to do useful, valuable things.
What I think is that corporations have priorities that are different from, and often in conflict with, those of people.
Further, those differences are baked in.
A corporation is not fulfilling its purpose — it’s raison d’etre — if it’s not maximizing the value, and especially the monetary value, of the capital invested in it.
That’s great, but it’s not always the best or most important thing from the point of view of everybody else in the country. Or in the world. Or the world itself, for that matter.
So we need levers to make sure corporations operate within the limits of broader, human priorities.
Our levers are public policy and the law. We should guard them.
“A corporation is not fulfilling its purpose — it’s raison d’etre — if it’s not maximizing the value, and especially the monetary value, of the capital invested in it.”
The NRA, as a non-profit corporation, would be violating it’s corporate charter if it concentrated on maximizing the monetary value of the capital invested in it.
You can’t admit the Obama administration argued before the Supreme court that it had the power to ban books, and you can’t admit this case was about a non-profit. You’ve all got your heads stubornly lodged in the sand.
Say, don’t you owe us homework? Something about your defense of stealing property from people at gunpoint, waiting a sufficient period of time, then dismissing attempts to get that property back because of “the sunk costs of history?”
Don’t you deign to lecture us on principles and ethics, Sunny Jim. It’s been pretty clear for a long time that you don’t actually have any except to the extent that you can make people believe you occupy a moral high ground.
and you can’t admit this case was about a non-profit.
And you can’t admit that, in ruling on matters far beyond the case before them — which both I and others here agree Citizens United should have won — the court is engaging in the same judicial activism which, as soon as it benefits you to do so, you’ll bitch about elsewhere. Because you don’t have any real principles.
The NRA, as a non-profit corporation, would be violating it’s corporate charter if it concentrated on maximizing the monetary value of the capital invested in it.
Once more, with feeling:
In My Very Humble Opinion, not-for-profit corporations, whose members include natural human persons, and which are created for the purpose of political speech or advocacy, are entitled to the full protection of the Bill of Rights.
Because they are, in fact, natural human persons getting together to engage in protected activity.
So: NRA, ACLU, NARAL, what have you — as long as the membership and funding comes 100% from natural human persons, fire away.
Metaphorically speaking.
The law currently distinguishes between groups such as that, and corporations constituted for profit, and corporations constituted not for profit but for some other purpose. It should not be problematic to maintain that distinction for purposes of recognizing or denying inherent rights as guaranteed under the Constitution.
Humans have inherent rights.
Legal structures created for purposes of employing invested capital do not.
That’s my position.
You can’t admit the Obama administration argued before the Supreme court that it had the power to ban books, and you can’t admit this case was about a non-profit. You’ve all got your heads stubornly lodged in the sand.
I don’t know about books, but they argued that they had the power to prevent a film from being shown.
I think that’s crap, and in fact I think the whole “election cycle” prohibitions that are part of McCain/Feingold are crap.
If there is any point in time when political speech should be allowed, it is during an election cycle.
My one and only issue in this discussion is that I do not believe that corporations deserve the protection of the Bill of Rights.
With the exception, noted above, of groups of natural human persons engaging as a group in protected speech under the corporate form.
Thanks
I’m actually kind of shocked that this is really what you want. It has enormous implications that are completely different from how we deal with the 1st amendment.
Your GSK example is instructive in a lot of ways but I’m still not clear on it. Now this movie would of course be produced and directed by an actual person. To be as clear as possible lets call the movie “Drugville” the corporation GlaxoSmithKline (or GSK) and the producer is Mr. P.
A) I’m pretty sure you are saying that if GSK hires Mr. P as a permanent employee and he then produces Drugville under the terms of his employment, using some corporate funds, that Drugville itself is no longer a protected piece of speech under the 1st amendment because you are imputing it as GSK’s speech, not Mr. P’s speech.
I’m fairly sure that you aren’t saying that Mr. P loses all of his 1st amendment protections by working for GSK. So it sounds like you are moving his work out of ‘protected’ by imputing it as GSK’s speech instead of Mr. P’s speech.
I’m not totally sure I’m right about this, because it gets muddled when you suggest that corporations might hire people specifically to put out GSK speech which would be ok somehow. But if A) isn’t an accurate description of what you are saying, please help me out.
Since you aren’t happy with the Citizen’s United case, it would seem that under your analysis, moving the production outside of the corporation doesn’t help.
This is case
B) Mr. P produces Drugville with the 100% funding of GSK.
It seems like here you still want to say that Drugville is not a 1st amendment protected film because it is still *really* GSK’s speech.
There is also B)(i) where Mr. P produces Drugville with the partial funding of GSK (this is pretty much the actual Citizen’s United case).
I can’t tell if you are ok with B or B(i). Instead of guessing I’ll look at both. If you think B and B(i) give rise to unprotected speech because of the corporate involvement, then the implications are enormous. Books like Hillary Clinton’s memoirs become unprotected because they were wholly funded by large book advances. Even “It takes a Village” might be unprotected because of the extensive involvement of Simon & Schuster’s Barbara Feinman. This seems like a very extreme result.
Alternatively you could say that such works are protected speech because they aren’t ‘the corporate voice’. In which case, Citzen’s United should have been allowed to distribute it’s anti-Clinton movie pretty much anywhere.
If that is your actual understanding, I don’t see why it is worth getting worked up about the corporate personhood thing. In any world where corporations are interested in changing political minds AND the case B) is ok, the corporation will just use case B). Since case B) isn’t remotely difficult to satisfy, it doesn’t represent any real hurdle against corporate influence in the political sphere. So either you believe that corporations don’t care enough to get beyond the non-hurdle of B (in which case it turns out that they don’t care much about politics and we all rejoice), or you believe that corporations intensely care about politics and thus will speak through case B nearly every time. So net effect = zero.
The problem for me is that you seem to want to divide “corporate voice” and “actual producer voice” into separate classes of protection. But corporations ALWAYS use actual people to write and direct and speak. They have to. Which is why for 1st amendment purposes the Supreme Court just treats the corporations as people for the purposes of analysis: doing otherwise either has no effect at all, or would burden the rights of the actual individuals. You seem to be suggesting that there is some middle ground where you can sharply limit corporations and leave indivduals unfettered. But when you look at practical reality, there really aren’t many of those middle cases. You’re either sharply limiting corporations AND physical individuals, or you’re being pretty free about both.
Seb —
Thanks for the thoughtful reply.
So it sounds like you are moving his work out of ‘protected’ by imputing it as GSK’s speech instead of Mr. P’s speech.
That is correct.
It seems like here you still want to say that Drugville is not a 1st amendment protected film because it is still *really* GSK’s speech.
No, not really.
If there’s a useful way to demonstrate that Drugville is “really” GSK’s speech, then it’s not protected.
If P makes the movie and raises funds from GSK or another corporation, I’m calling it protected speech, because P is speaking.
One useful distinction here is “GSK hired P” vs “P raised funds from GSK”. It’s a distinction that can be obscured if folks want to muddy the waters, but not always, and/or not completely.
All of which leads us to:
In any world where corporations are interested in changing political minds AND the case B) is ok, the corporation will just use case B).
That’s probably the case. I don’t think it’s great, but I can live with it, because it recognizes who the rights actually belong to correctly, IMVHO.
So, yes, corporations can go around spending billions hiring writers, filmmakers, etc., to craft their apologia, if that’s what they want to do.
What they can no longer do based on a Bill of Rights protection is contribute to elections, PACs, or advocacy groups, and they can no longer claim a right to lobby Congressmen or any branch of the government.
So actually I think it would make a difference.
If I can have all of what I’ve just described, I can live with corporate sponsored shills writing books and making movies to advocate their sponsor’s point of view.
There’s no lack of that now.
My issue with Citizen’s United isn’t that a citizen’s group tried to air a movie about Hillary Clinton. IMO actual citizens’ groups, by which I mean groups made up of actual citizens, should be free to say any damned thing they like on any topic of public interest at any time, most definitely including during election cycles.
I’d like to see “citizens’ groups” membership and funding limited to citizens, which is to say natural human persons.
And I don’t want for-profit corporate money funding political activity, period.
If Simon and Schuster wants to pay Hillary Clinton to write a book because they’ll make buckets of money, mazel tov. The right to free speech belongs to Clinton.
The question is who the right belongs to. That should be the dog that wags the tail of the pragmatics, and not vice versa.
Hope that helps.
“If I can have all of what I’ve just described, I can live with corporate sponsored shills writing books and making movies to advocate their sponsor’s point of view.”
What about commercials? Can people solicit money for commercials?
Also, what about unions? It seems your formulation would completely bar union political activity beyond collective bargaining.
Unfortunately for your attempts to distract from the fundamental issue, Sebastian, I reiterate:
This is only a 1st-Amendment/freedom-of-speech issue IF CORPORATIONS ARE TRUE PERSONS UNDER THE CONSTITUTION.
Until this question is settled, once and for all, your free-speech herrings remain red.
What about commercials?
If you mean commercials about political advocacy — “vote for X” or “the senate health care plan is a toxic festering turd” — it’s protected if it’s authored by natural humans or groups of the same acting together to engage in protected speech.
If it’s just a product ad it’s commercial speech, which is not protected by the bill of rights currently, and still shouldn’t be.
Also, what about unions?
If for-profit corporations are barred from political advocacy, unions should be too.
I don’t think you’ve been paying attention to what Sebastian’s been saying, chmood. I don’t think Sebastian’s been speaking to corporate ‘personhood’ at all.
As I read Sebastian, the issue of corporate personhood is almost beside the point, because freedoms of speech and press are ultimately taken advantage of people, not corporations. Whether those people are employed by corporations, hired as consultants by corporations, or are acting on their own is not something specified by the First Amendment, and so everyone has the same rights under the Constitution.
Not trying to speak for Sebastian, but this is how I interpret what he’s saying.
If Slarti’s right, I’d like to see a response to my earlier question:
As I read Sebastian, the issue of corporate personhood is almost beside the point, because freedoms of speech and press are ultimately taken advantage of people, not corporations.
That’s an interesting way to look at it, but when push comes to shove and things land in court the claims of civil rights are made for the corporation, not the person.
Dartmouth v Woodard names Dartmouth College as the plaintiff, not the individual human trustees, singly or collectively, who sought the action.
Santa Clara County v Southern Pacific Railroad claims 14th amendment protections for the railroad, not its CEO or any officer, board member, or stockholder.
Nike v Kasky claims 1st Amendment protections for Nike, not its CEO, board members, or stockholders, nor the authors of the advertisement that prompted the suit.
If that’s what Sebastian is saying, I don’t think it flies.
None of those claims, or any of the other claims which assert corporate personhood, do so in the name of any human person, acting on their own or on behalf of the corporation.
They all explicitly and clearly make the claim for the corporation per se.
Dartmouth v Woodard:
I’m not sure I understand it, but it seems to affirm the right of private corporations to contracts without meddling by the states. Which might not be the point you’re wanting to make, but it’s possible that I’ve misunderstood you, the decision, or both.
I believe you understand Dartmouth v Woodard correctly.
I wasn’t making a comment about the merits of the case, I was just pointing out that the constitutional claims made there were made on behalf of Dartmouth College, the corporation per se, rather than on behalf of any human person or persons.
Same with the other cases, and with virtually every case where corporations claim protections under the constitution by virtue of being “persons”.
Corporations are not synonymous with their executives, their board members, their employees, or their shareholders.
In fact, corporations exists *specifically* to be not synonymous with any of the above.
This is most clearly evident when they incur losses in excess of their assets.
Oh, sure, russell. Corporations do have certain rights, though, don’t they?
If they don’t, what’s to keep me from walking into Mark Levinson, for instance, and swiping everything that’s not nailed down?
Unrelated: Mark Levinson is located in Elkhart, Indiana? How did I not know that?
Back on-topic, I’m not sure where you’re going with this line of argumentation, because it seems you’re establishing that yes, corporations do enjoy certain protections under the Constitution, which seems contradictory to that they don’t have First Amendment rights. Maybe I need to go back and reread all of your comments.
Of course, some rights need not necessarily imply all rights, and a corporation may even avail itself of 14th amendment rights without that meaning that it enjoys the same protections as a natural person (rather, instead, it might mean equal protection as other corporations).
Just spitballing, here. Enlighten me?
Not russell, but here’s a comment (with added emphasis here and there) I made on the Not One Dollar thread that I think speaks to your comment, Slart:
It’s not even that I would say corporations shouldn’t have some free-speech protections. It’s just that I think they should only have those necessary to conduct the businesses that they’re in. The free speech of the humans associated with a given corporation is a separate issue AFAICT. (They can say or write whatever they like, just not on company time, according to most companies.)
My point of view is that:
1) corporations are entitled to exactly those rights and privileges we care to grant them under law.
2) they have no claim to inherent rights as persons under the Bill of Rights, or in fact to any of the rights granted to persons in the Constitution.
If you have a minute, scan the body of the main part of the Constitution — i.e., not the amendments — and see if any of the uses of the word “person” can meaningfully be applied to a corporation.
It really doesn’t pass the smell test.
It makes perfect sense for corporations to be able to own property and enter into contracts. Those activities are essential to the reason corporations exist.
So, we, meaning the sovereign people of the US, grant them those rights. They are not, or at least IMO ought not to be, inherent.
No entities have inherent rights except people.
Where I’m going with all of this in the context of this discussion is to argue that for-profit corporations have no inherent right to participate in political speech.
People do. Corporations don’t.
Sorry, a follow-up:
Of course, some rights need not necessarily imply all rights
If you grant rights on the basis of Constitutional personhood *at all*, as far as I can tell there is no legal or constitutional basis for not granting all of them.
They’re Constitutional persons, or they’re not. That’s been their claim, anyway.
Maybe some of the lawyers here can explain how it can be otherwise.
The fact that some of the rights are obviously absurd in the context of corporations ought to be our clue that they weren’t, and shouldn’t have been, intended for corporations.
They’re for people.
“They’re Constitutional persons, or they’re not. That’s been their claim, anyway.
Maybe some of the lawyers here can explain how it can be otherwise.”
Sure. We could decide that for most cases they can analytically be treated as if they were persons because you trample on the constitutional rights of physical people if you dont.
It’s interesting to search Google books for old corporation law treatises from the 19th and early 20th century.
“Although corporations are fictitious persons, the acts and interests, rights and liabilities, attributed to them by the law are those of real or natural persons, for otherwise the law of corporations would be destitute of any relation to actual fact and of any serious purpose. Every corporation, therefore, involves in the first place some real person or persons whose interests are fictitiously attributed to it, and in the second place some real person or persons whose acts are fictitiously imputed to it. A corporation, having neither soul nor body, cannot act save through the agency of some representative iu the world of real men. For the same reason it can have no interests, and therefore no rights, save those which are attributed to it as a trustee for or otherwise on behalf of actual human beings. Whatever a company is reputed to do in law is done in fact by the directors or the shareholders as its agents and representatives. Whatever interests, rights, or property it possesses in law are in fact those of its shareholders, and are held by it for their benefit. Every legal person, therefore, has corresponding to it in the world of natural persons certain agents or representatives by whom it acts, and certain beneficiaries on whose behalf it exists and fulfils its functions. Its representatives may or may not be different persons from its beneficiaries, for these two capacities may or may not be united in the same individuals.”
… and, as to the true purpose of corporations:
“The advantages which traders derive from such a scheme of limited liability are obvious. Nor does it involve any necessary injustice to creditors, for those who deal with companies know, or have the means of knowing, the nature of their security. The terms of the bargain are fully disclosed and freely consented to. There is no reason in the nature of things why a man should answer for his contracts with all his estate, rather than with a definite portion of it only, for this is wholly a matter of agreement between the parties.”
This is from Jurisprudence: or, The Theory of the Law, by Sir John William Salmond
In other words, the reason we can’t steal from a corporation is that we’re actually stealing from shareholders. It’s more convenient in the law for society to vindicate the rights of shareholders through the corporation, so we allow a corporation to own property (on behalf of its shareholders), and to sue and be sued for torts which affect it, and ultimately its shareholders.
But, say, for me, as someone who has a small amount of retirement investments in corporations, even though I have a small investment in, say, Sunrise Senior Living, doesn’t mean I want Sunrise Senior Living (whatever its political interest may be) to override my political interest in having Medicare be extended to all.
So, yes, Sunrise might speak for me in making sure its nursing home residents pay their bill, or in making sure that they don’t waste money on $300 bottles of wine with dinner for the residents, so that I can share in the profits of Sunrise Senior Living, doesn’t mean it can speak for me when it tries to support political candidates that I don’t approve of. Corporations aren’t all-purpose mini-democracies. They are investment strategies. They are property trustees, not ideological trustees.
Sebastian: Including the constitutional rights of foreign
ownersexecutives of multinational corporations that operate in the US to influence elections for the United States government?And you’ve yet to explain how allowing corporations to spend unlimited amounts from their corporate treasuries is enhancing the constitutional freedoms of anyone at all. Other than the constitutional freedom of the
ownersexecutives to buy politicians who will then favor their companies and give the managers themselves tax breaks. Which does not match the interests of the shareholders, who these kinds of things are theoretically supposed to benefit. Which is how most all of corporate stuff is handled these days, short-term stuff, that benefits the managers now, not the company as a whole, since the managers will make their F-you money in a few years and be gone.We could decide that for most cases they can analytically be treated as if they were persons because you trample on the constitutional rights of physical people if you dont.
I’m saying that it’s not necessary to analytically treat corporations as persons to avoid trampling on the rights of real people.
Corporations aren’t people.
It seems that Sebastian AND Russell both accept that rich persons — real flesh-and-blood rich persons at the very least — ought to have the right to spend all the money they like on political speech. The only dispute is over who or what counts as a “person”.
My local Kwik-E-Mart is a corporation. So is Exxon. I am a flesh-and-blood person. So is Steve Forbes. Seb’s position seems simple enough: all four of those “persons” should have the right to speak as loudly as their money allows. Russell’s position is equally straightforward: Steve Forbes and I should be free to speak with our money; the Kwik-E-Mart and Exxon should not. Both are honorable positions.
My DIShonorable position is that maybe the more consequential distinction is between rich “persons” and not-rich “persons”, rather than between corporations and people. And consequences matter.
I’m not sure whether Russell or Sebastian believes more firmly that expensive speech actually “works”, in politics. But both of them must believe it to some degree, or else their disagreement would be pretty much academic. I certainly believe it.
For sure most politicians believe that campaign spending buys votes. Not the majority of the votes every single time, of course. Just as some smokers live to be 100, some well-financed campaigns lose. But the statistical correlation runs heavily the other way, and the causal mechanism is not a complete mystery. So “money buys votes” and “cigarettes kill people” are both pretty good rules of thumb. And the “persons”, corporate or otherwise, who spend the money must think it “works”, too. Why would they insist on their right to spend it if they thought it didn’t?
So there seems to be wide agreement that expensive speech is effective. Money talks. Whether corporate or natural, rich persons have more money than other persons. Thus rich persons can talk more than not-rich persons. On any given political issue, Steve Forbes can afford more “speech” than I can; Exxon more than my local Kwik-E-Mart can. Good or bad, political speech backed by more money tends to persuade more voters than political speech backed by less money, because what money buys is repetition, and repetition has a persuasive power all its own. Expensive speech has a built-in edge over free speech.
That may be inevitable. It may also be unobjectionable if you look at it a certain way. After all, if the voters get persuaded by expensive speech, they are … well, persuaded. If an expensive ad campaign personally funded by Steve Forbes persuades voters that they will be better off by abolishing the estate tax, or Exxon persuades them that they would be better off with a lower corporate income tax … well, what’s wrong with that? The mere fact that the voters might judge differently if presented with equally expensive speech explaining how they would be worse off is irrelevant. And anyway, we’d never know.
Seb implies that it would be dishonorable (or at least, foolish) to restrict a rich Steve Forbes’s right to spend money on political speech, since that would also restrict a rich James Madison’s political speech. In principle, I agree. But, also in principle, I can imagine a post-Revolution America in which a few rich “persons” were able to outspend Madison by ten to one and carry the day. In principle, either the Constitution or the Bill of Rights, or both, might have been rejected by an American electorate heavily influenced by rich “persons” spending lots of money on “presses”. That this did not happen could be a matter of luck as easily as it could be a vindication of the principle that money should have free rein in politics. We’ll never know.
The cure for bad speech is more speech, says the old adage. True. So “bad” speech by not-rich persons can always be cured by the “more” speech that rich persons can afford. The reverse is less certain: not-rich people can’t afford “more” speech. The best we can hope for is that rich “persons” will check and balance each other’s “bad” speech, to the extent they disagree amongst themselves. The worst we have to fear is that they won’t disagree much.
I have absolutely no desire to restrict the content of anybody’s speech, of course. But some people do. And some of them have lots of money. It’s not abundantly clear to me that giving them free rein to spend that money in political campaigns is really the best way to defend the actual freedom of actual speech.
–TP
“It seems that Sebastian AND Russell both accept that rich persons — real flesh-and-blood rich persons at the very least — ought to have the right to spend all the money they like on political speech.”
That is kind of the inevitable outcome of “Congress shall make no law…” Are you in favor of upholding the Constitution, or do you want it violated?
“I have absolutely no desire to restrict the content of anybody’s speech, of course. But some people do.”
And the people who wrote McCain/Feingold were “people who do”. If you were talking about the weather, they didn’t care what you said. If you were talking about them, they wanted you to shut the hell up. That’s a content based restriction, in case you didn’t notice.
Whatever fuzzy thinking might have motivated the supporters of McCain/Feingold outside Congress, it’s supporters within Congress were incumbents who wanted to shut up interest groups who kept bringing up issues they didn’t want to talk about, and backing challengers who otherwise wouldn’t have had a chance. That’s what McCain/Feingold was really about, that’s what any campaign ‘reform’ that gets passed by incumbent officeholders is inevitably going to be about. Because while we view incumbents regulating speech about themselves during campaigns as a conflict of interest, the incumbents themselves view it as an opportunity to make their lives easier. THEY experience no conflict at all.
It seems that Sebastian AND Russell both accept that rich persons — real flesh-and-blood rich persons at the very least — ought to have the right to spend all the money they like on political speech.
I’m not against limits on what people can spend on political activity.
The *only* point I’m trying to make in this thread is that, with very narrow exceptions, corporations do not deserve the status of “persons” in the sense of being entitled to constitutionally protected rights.
The narrow exception is groups of natural human persons who are already entitled to those protections acting together to engage in protected speech or other protected activities.
That’s my point.
The trouble with this sort of fundamental rights-based approach is that it gets tied up in these bizarre philosophical debates about what the Great Patriarchs of the Republic really meant to write and what “speech” really is and what a “person” is. It’s just so… French, frankly. Also, you end up having asinine arguments about “what would James Madison have done?” which smack more of some sort of tribal faith than rational political discussion.
The practical way to look at it is to say: what is the desired outcome here and how can we best achieve it? And the desired outcome, I think most people would agree, is to have a situation where people aren’t afraid to argue about politics, but you don’t have massive bribes in cash or kind (ie, advertising) swaying the judgement of legislators.
Essentially, this means limits on political advertising, by anyone. Works in other countries. You create a clear line in law between talking about politics and purchasing advertising space for political ends.
Works in other countries.
That is kind of the inevitable outcome of “Congress shall make no law…”
Finish the thought:
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Religion, speech, press, assembly, petition.
Nobody talking about money anywhere in there.
It’s probably worth another hundreds-of-posts-long thread to discuss, but as far as I can tell speech is not money.
ajay, I take your point. The problem there is that there are different opinions about what the desired outcome is.
Not everyone thinks massive expenditures intended to sway the judgement of legislators is a bad thing. Some folks think it’s the bees knees.
The issue, to me, is whose opinion deserves consideration. IMO that should be natural human people, and nothing but.
As noted above, I’m fine with limits on per-person total spending. Because, by and large, most actual *people* agree with your statement that swaying the judgement of legislators with money is not a good thing.
russell: Money isn’t speech, just like a corporation isn’t a person. Unfortunately, the Supreme Court has said that corporations are people and money is speech. Which isn’t a matter of “judicial activism”, it’s bad decisions, based on bad law, which creates bad results.
I agree with russell on this point: speech is not money.
But I think the way this should be handled properly is not restrictions on giving, but rather restrictions on receiving. Ordinary citizens should be constrained as little as is necessary; citizens serving in public office should be more constrained so as to avoid corruption.
This also has the added bonus of emplacing scrutiny on a (hopefully) much smaller population.
ajay, too, mostly. Up until this:
How do you propose to do that? If you try limiting advertising, the money will flow to “talking about politics”. Carve out a niche of forbidden kinds of speech (for want of a better term; if you object to it, insert your own favorite descriptor), and the money will flow to kinds of speech not specifically forbidden.
How did “other countries” make this work in a way that we can adopt, that doesn’t run counter to our Constitution?
Unfortunately, the Supreme Court has said that corporations are people and money is speech.
They’ve been known to change their minds before.
I think the way this should be handled properly is not restrictions on giving, but rather restrictions on receiving.
Works for me.
I disagree that “restrictions on receiving” would work – there are lots of workarounds involving issue-based advertising. If a main difference between candidates is their opinion on building a new library, then pro-library advertising, even if it doesn’t mention either candidate, will favour one candidate over the other.
As to how it might work: you have (low) limits on campaign spending per candidate. You ban certain sorts of political advertising (radio and TV), not just by candidates and parties but by anyone. You make candidates publish their donors’ names and the amounts they donate.
As for the money flowing to “talking about politics” – no doubt. If you ban broadcast ads, the money may well be spent elsewhere – but much less effectively. Broadcast ads are uniquely effective and uniquely expensive.
I’m with Tony P. You don’t get to bring a bullhorn to the school-board meeting. And public airwaves are not privately owned, even if NBC is.
Knock yourself out on PPV, I say. Write any damned book you like. I’d have to buy either one.
Campaigns are campaigns and they are, and need to be, public. GE can’t run for office, so it has no business campaigning on public airwaves. They can say whatever they want via any privately owned means legitimately at their disposal as far as I’m concerned. How is that any different than not being allowed to hang “Vote for Pedro” banners at the polling stations (since Congress shall make no law), or is that wrong, too?
“Religion, speech, press, assembly, petition.
Nobody talking about money anywhere in there.
It’s probably worth another hundreds-of-posts-long thread to discuss, but as far as I can tell speech is not money.”
I think this is a worse argument than “corporations aren’t people” though for the same reasons. Yes, they are not literally the same thing, but restrictions on spending money to facilitate speech are restrictions on speech.
Volokh uses the example “money isn’t abortion”. Yet if Congress passed a law saying that no one could spend or receive more than $1 in compensation for an abortion, that would very severely restrict the right to abortions (I deliberately put aside the question of whether or not their ought to be such a right, because I know that most people here accept it). If Congress passed a law saying that no corporation could provide abortion sevices that would severely impact the right to abortion. It isn’t that Planned Parenthood HAS abortion rights or HAS speech rights, Planned Parenthood has neither a mouth nor a uterus. It is that we treat them as if they had these rights because not doing so leads to the easy possibility of restricting the rights of actual people by reaching through the corporate proxies.
The basic principle is, no matter what you purport to be regulating, if application of the regulation is contingent on the content of speech, you’re regulating speech. And any claim to the contrary is just pretext.
I think the greatest service the Supreme court rendered us in the Citizens United decision was not turning back a particular assault on the 1st amendment, as valuable as that is. Their greatest service has been to expose just how unremittingly hostile to freedom of political speech the left has become. Probably always was.
The masks are off now, and you won’t be able to put them back. That’s remarkably valuable.
I think Ugh’s suggestion that states create business corporations with only limited capacity to speak for their shareholders is the way to go. Honestly, if corporations really are (as they started out being, unless they’ve acquired a life of their own) creatures of statute, they really can be restricted by that law to whatever the heck form the state wants them to be. There’s no Constitutional mandate that states create zombie citizens with unlimited lives and monstrous constitutional protections.
Yeah, they’re not literally the same thing. Which means they aren’t the same thing. They certain have a relationship to each other, but they’re not the same.
Money facilitates access to media, which makes it easier to get your point of view in front of more people.
True dat.
But what we’re *not* talking about is preventing anyone from speaking. Anyone can say anything, write anything, make a movie about anything, what have you.
What we *are* talking about is how big the microphone is that they get to talk into.
We’re talking the practical result of the policy.
Since we’re talking pragmatics, I’d say that allowing unlimited amounts of money to be brought to the table has a far greater, and far more harmful, effect on who gets access, and how much, than any realistic policy limiting spending will.
Yeah, if we’re going to pass a law saying everyone can only spend $1, then I agree with you. It would be a stupid and harmful law.
Nobody’s going to pass that law.
They’re going to pass a law saying that (for example) the guy that can write a $100M check only gets to write a smaller one. That means all of the people who *can’t* write a $100M check get a chance to have their point of view heard as well.
And if you do want to spend $100M on political speech, you can still do so. You just have to convince a million people to agree with you to the tune of $100 each.
if application of the regulation is contingent on the content of speech, you’re regulating speech.
Couldn’t agree more.
Show me anything I’ve said here or anywhere else that calls for regulating anything based on the content of speech.
I’ve said exactly two things:
Corporations are not people.
Money is not speech.
Both of those statements are plainly and self-evidently true. I’m just following those self-evidently obvious points to their logical conclusions.
It’s folks arguing the opposite view that find themselves having to torture the freaking language to make their point.
I think Ugh’s suggestion that states create business corporations with only limited capacity to speak for their shareholders is the way to go.
That’s a great idea, but I think you’ll find it hard to implement because of the constitutional rights that have already been claimed and granted to corporations.
If money is speech, why is talk cheap?
“constitutional rights that have already been claimed and granted to corporations.”
Existing corporations, but not new ones. In practical terms though, it would be hard to implement because state legislators will already be [are] on the take.
The corporation can spend the money if they’re advertising widgets, not if they’re advertising their opinion of a candidate. That’s the content of speech. QED.
Ink is not press. Neither is newsprint. For that matter, air is not speech. Where do those self evidently true statements lead you?
How is that any different than not being allowed to hang “Vote for Pedro” banners at the polling stations (since Congress shall make no law), or is that wrong, too?
I keep asking myself the same thing. Is anyone going to answer it?
“I keep asking myself the same thing. Is anyone going to answer it?”
Time, place and manner restrictions only apply to us human folks.
Brett,
The NRA, as a non-profit corporation, would be violating it’s corporate charter if it concentrated on maximizing the monetary value of the capital invested in it.
You can’t admit the Obama administration argued before the Supreme court that it had the power to ban books, and you can’t admit this case was about a non-profit. You’ve all got your heads stubornly lodged in the sand.
This completely misrepresents the arguments that I and others have made. My point, at least, is that the NRA, for example, is a completely different animal than large profit-making corporations, and that it makes sense to treat the two as different for any number of reasons.
Indeed, one of my criticisms of the decision is that the court went out of its way to refuse to draw the distinction.
For you to claim otherwise is plainly inaccurate.
The corporation can spend the money if they’re advertising widgets, not if they’re advertising their opinion of a candidate. That’s the content of speech. QED.
OK, I see where you’re coming from.
First, allow me to ask if you’re familiar with the phrase “beg the question”.
Second, allow me to point out that the distinction I’m drawing is not based on the content of the speech at all.
It’s based on who the speaker is.
Corporations either are, or are not, persons, in the sense that the US Constitution uses that term when discussing rights.
If they are, you’re right and I’m wrong.
If they’re not, vice versa.
The question is whether corporations are people. I say they’re not. Biology says they’re not. The plain meaning of the English language says they’re not. Until about 1870, the SCOTUS said they were not.
You say they are, I say you’re wrong.
You have to do violence to the plain and obvious meaning of the language, the plain original intent of the authors of the Constitution and the amendments, and simple common sense in order to hold your position.
All I have to do to hold mine is state the obvious.
The corporation can spend the money if they’re advertising widgets, not if they’re advertising their opinion of a candidate. That’s the content of speech. QED.
Even if they can advertise their opinion of a candidate elsewhere? What you seem to have a problem with, Brett, is not regulation of content but the lack of a guarantee that a particular publicly owned means of communication will be afforded for all content. Regulating content (period) means “You can’t say this.” See Sapient at 3:01 PM.
You know, I don’t want Huslter to be censored. They can put whatever they like in their magazines. But I also don’t want them to be putting hairy clams on the tube during commercial breaks while my kids are watching Dora the Explorer. What’s so hard about this?
“Time, place and manner restrictions only apply to us human folks.”
They apply, per the Constitution, only to the election, not the campaign, which is merely speech concerning the election. Which means that Congress can regulate conduct within a reasonable radius of polling places, on election day. But not what people have to say about the candidates, outside the polling places, or even in them the other 364 days of the year.
Bernard, I agree that it makes perfect sense, within limits, to treat for profit corporations differently from non-profits. But I observe that, time after time, the Citizens United decision is attacked on grounds that ONLY apply to for-profits, as though the law hadn’t been (deliberately) drafted to apply to non-profits, too.
Congress could have written a law that treated non-profits differently. They didn’t. They CHOSE not to. That’s because it’s the non-profits they really wanted to get at. It wasn’t the Court’s place to re-write the law in a manner that would pass constitutional scrutiny.
And I can not agree that it makes sense to restrict political speech where for profit corporations are involved. First, because that gives the government an enormous amount of leverage with which to impact core political speech by individuals and interest groups, who have to use the services of for-profit corporations to get their messages out.
Second, because the largest problem with regulation of political speech is that it’s subject to an absolutely mind boggling conflict of interest problem, because the laws are written by incumbent politicians, to regulate what can be said during their own campaigns. And this conflict of interest is identically present whether the speech being regulated comes from a non-profit like the NRA, or a theoretically for profit, like the NYT, or a actual profit making company like GE.
This is a constitutional point rather similar to the Court’s conclusion that separate but equal wasn’t equal. It might be possible for Congress to write regulation of speech by for-profit corporations that didn’t stiffle political discourse. But they had the chance to, and deliberately didn’t write the regulations that way. Why pretend they approach this subject in good faith?
Bernard, I agree that it makes perfect sense, within limits, to treat for profit corporations differently from non-profits. But I observe that, time after time, the Citizens United decision is attacked on grounds that ONLY apply to for-profits, as though the law hadn’t been (deliberately) drafted to apply to non-profits, too.
I don’t share your observation. Indeed, my observation is the opposite – that much of the criticism is that the decison was reasonable as to non-profits, but the inclusion of for-profits makes it way too broad.
Congress could have written a law that treated non-profits differently. They didn’t. They CHOSE not to. That’s because it’s the non-profits they really wanted to get at. It wasn’t the Court’s place to re-write the law in a manner that would pass constitutional scrutiny.
So because Congress was stupid the Court has an excuse for being stupid too? The Court clearly could have made a much narrower decision.
And I can not agree that it makes sense to restrict political speech where for profit corporations are involved. First, because that gives the government an enormous amount of leverage with which to impact core political speech by individuals and interest groups, who have to use the services of for-profit corporations to get their messages out.
Huh? Restricting for-profit corporations doesn’t mean they can’t provide services, like advertising time, to non-profits. Profits are still barred from making direct contributions, but no one thinks that means a candidate can’t have a printer make posters, or hire an ad agency.
Second, because the largest problem with regulation of political speech is that it’s subject to an absolutely mind boggling conflict of interest problem, because the laws are written by incumbent politicians, to regulate what can be said during their own campaigns.
No. No one is talking about regulating content. Just because I think it’s sensible (and constitutional) to regulate what Exxon can do in a campaign doesn’t mean I think it’s constitutional to regulate what Exxon’s CEO can say, or what a voluntary group of Exxon shareholders can say.
Brett: “They [time, place and manner restrictions] apply, per the Constitution, only to the election…”
Time, place and manner restrictions apply to all kinds of 1st amendment issues. Courts have upheld all sorts of restrictions, such as prohibition of protesters within a certain range of a speaker, or an abortion clinic, etc. (allowing “breathing room” for others to exercise competing rights – conceptually the same issue as in the Citizens United case, where corporations and their loud money can drown out ordinary citizens).
Y’know, I don’t think I remember Brett ever being so concerned about the free speech rights, or time and manner restrictions when they applied to actual people, like, say, protesters herded into “free speech zones” far away from any of George W. Bush’s appearances, on the campaign trail or not. Oddly enough, people whose speech *content* consisted of cheering for the Worst President Every were allowed where the cameras were, and weren’t arrested or kicked out.
But not allowing GE to spend millions on
bribesads broadcast over publicly owned airwaves is somehow this greatest threat to democracy.