by Ugh
Corporate "personhood" is in the news again with SCOTUS granting cert in the Hobby Lobby case to determine:
Whether the Religious Freedom Restoration Act (RFRA)…, which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.
I'm not so much interested in the specific issue in the case, primarily because the outcome is clouded by the RFRA* – absent which Hobby Lobby would have lost and there would be no SCOTUS case – but to revisit a question I had when this topic was discussed here before.
That is, corporations are entirely creatures of statute – legal fictions, in other words. They have only the ability to do things that the state allows them to do (to own property, sue and be sued, etc.). In the past, state laws limited these things in large ways, and the articles of incorporation of corporate entities would also limit what the entity could do, but these days it seems these limits have largely gone by the wayside, so a corporation can do anything that is "lawful" as long as certain procedures are followed.
In any event, the underlying legal creation is still there. Without state law, there are no corporations, unlike natural persons. So, my question is: what happens to corporations formed under state law when that state repeals its corporate code?
This is different, in my mind, than revoking a corporate charter, which would require some sort of process (due or otherwise) to be followed under current judicial precedent (e.g., just compensation if it's a taking, notice/opportunity to be heard, trial, etc.). Delaware's corporate code revokes corporate charters for failure to pay franchise tax, but only after certain procedures are followed.
Rather, this would be the end of corporate law itself. There would be no such thing as a corporation after repeal. So….what happens? Could a state even do this? The Delaware Corporate code provides that if a corporate charter is revoked then a court has the power to wind up its affairs, including "to make such orders and decrees with respect thereto as shall be just and equitable respecting its affairs and assets and the rights of its stockholders and creditors." So, would there be some sort of statewide corporate wind up, with, I assume, corporate property sold and the proceeds distributed to shareholders (or the property itself distributed)? What if repeal doesn't provide for such a process? Would repeal constitute some sort of "taking" requiring just compensation? Taking of what? Limited liability?
I have to imagine this has come up before, but I can't seem to find an example (hence looking at the law governing charter revocation).
*I do hope SCOTUS realizes the can of worms it would open by ruling that corporations are covered by the RFRA, either directly or indirectly through its shareholders. The case produce an interesting vote count.
Remove the legal structure for corporations, and shareholders and directors become personally responsible for corporate liabilities.
So if they’re overdue on paying an invoice? Put a lien on the CEO’s house.
Corporate “personhood” is a violation of the 13th Amendment.
Owning persons has been illegal for a century and a half in this country. Owning businesses is the American way, the capitalist way, god’s own way. But owning “persons” is an abomination.
Persons have rights. Among those rights is the right to own property. If a corporation has rights separate and distinct from the rights of its shareholders, then a corporation has the right to own property which does not belong to its shareholders. Has there ever been a lawsuit hinging on that point?
–TP
In the past, state laws limited these things in large ways, and the articles of incorporation of corporate entities would also limit what the entity could do, but these days it seems these limits have largely gone by the wayside, so a corporation can do anything that is “lawful” as long as certain procedures are followed.
Since way before I started law school in 1997, corporations could be formed for any lawful purpose and almost all Articls of Incorporation grant an extremely broad writ to the corporate entity.
That was Texas law. Delaware was much more pro-corporation.
So, my question is: what happens to corporations formed under state law when that state repeals its corporate code?
If a state were to do something like this–as radical an upheaval of existing commercial norms as I can imagine–then my guess is the answer is: Nothing. The answer is “nothing” because by the time the state got around to eliminating corporations, the private sector would have long since vanished or migrated elsewhere. A move of this nature would be Venezuela on steroids.
If a corporation has rights separate and distinct from the rights of its shareholders
They do, by definition. Ownerhip of the stock confers no interest in specific corporate assets, just the right to recover pro rata if the assets are sold or liquidated.
then a corporation has the right to own property which does not belong to its shareholders.
This is a completely true statement. The shareholders own stock in the company, the company owns the assets. The company can buy and sell its assets, the shareholder, unless the stock is restricted, can buy and sell the stock. This is actually pretty basic stuff.
For example: I own stock in Duke Energy. I have no rights whatsoever over any of Duke’s assets.
Has there ever been a lawsuit hinging on that point?
Probably, but in the distant past back when the law was not settled. In closely held corporations these days, the litigation you see is related to control and *oppression*, i.e. screwing, mirnority shareholders.
McKinney: Since way before I started law school in 1997, corporations could be formed for any lawful purpose and almost all Articls of Incorporation grant an extremely broad writ to the corporate entity.
Well sure, perhaps I should have said “distant past,” although 1997 is starting to seem like that for me.
If a state were to do something like this–as radical an upheaval of existing commercial norms as I can imagine–then my guess is the answer is: Nothing. The answer is “nothing” because by the time the state got around to eliminating corporations, the private sector would have long since vanished or migrated elsewhere.
I agree. Corporations are useful tools in the complex, modern economy, where the kind of coordination and capital required to build, e.g., a 787 or to run Amazon.com would simply be impossible (or nearly so) without centralized management, limited liability, and unlimited life.
Forgetting that they’re tools seems to be part of the problem these days, however.
Since way before I started law school in 1997, corporations could be formed for any lawful purpose
This is undoubtedly true, but the history of corporations – publicly traded common stock companies – goes back a few centuries.
During much of that history, it was common, if not the norm, for corporations to be organized for specific and limited purposes, and often for specific and limited lifespans.
None of that has been true in any of our lifetimes, however.
If a corporation has rights separate and distinct from the rights of its shareholders
They do, by definition.
Agreed.
Because the corporation has a legal identity separate from that of its shareholders. That is the reason it exists.
Which is why, IM not-a-lawyer O, Hobby Lobby’s claim for protection under RFRA is ridiculous.
Hobby Lobby per se is incapable of “exercising religion”, in any way shape of form. Just like it’s incapable of crossing the street, reading the newspaper, or going fishing on the weekend.
It’s nonsensical, but it’s the logical outcome of considering corporations to have the same constellation of rights that belong to natural persons.
We’ve arrived at a truly FUBAR situation. I’m curious to see what the SCOTUS will make of it. I’m not looking forward to it, but I am curious.
Not the point Ugh wanted to pursue, apologies for the thread jack.
If one of the objectives of this line of reasoning is to stem the tide of corporate dollars flowing into the political process, I would tend to want to regulate the receiving end. Fewer things to watch, there.
But asking Congress to pass laws that regulate against the interest of its members in any way is kind of a pipe dream. This is one of the biggest flaws in our system of government, in my opinion.
With the present composition of the Supreme Court, I suppose it’s just a matter of time before a corporation will be allowed to run for President. If Caligula could make a horse a consul, why can’t an honest, upstanding corporation become POTUS?
McTx: For example: I own stock in Duke Energy. I have no rights whatsoever over any of Duke’s assets.
If you owned NO stock in Duke, you surely would have no rights over its assets. And you, as an INDIVIDUAL shareholder, surely have no more rights over Duke’s assets than you, as an individual citizen, have over your town’s assets.
But: is Duke Energy, Inc. owned by its shareholders or isn’t it? Do you, as a shareholder, have no say AT ALL on what assets “Duke Energy” buys or sells? Could Texas(?) confiscate any property “owned by Duke Energy” without it amounting to a taking FROM YOU?
–TP
russell, If Hobby Lobby were not a corporation but rather an individual person who employed people and didn’t like subsidizing birth control, would you say that s/he had the right to refuse to do so?
Because if you wouldn’t, then your objection doesn’t seem to be about corporate personhood as much as about religious rights in general.
Tony:
I’m sure a lawyer (Ugh and McK, unless I’m mistaken) could provide a better explanation, but when I don’t know something (frequent), I generally turn to wikipedia:
http://en.wikipedia.org/wiki/Stock#Shareholder_rights
While hardly definitive, I generally find wikipedia to be “accurate” to a good approximation. It doesn’t quite answer all your questions, but I think it covers most of them.
FYI, wikipedia is doing fundraising. I’ve donated and I encourage everyone else to do so as well! Even $3 helps!
Ugh:
Interesting post, and I’m not quite sure how to contribute to the discussion. If the question is: could society exist without the legal instrument of incorporation, I’d say yes. If you’re asking if I think think its a good idea, I’d say no. If your asking (and I think this is the crux of it) how it would happen whether or not its a good idea…dissolving corporations is something that happens. It seems like it would be like that except on a larger scale.
And to be clear, IANAL, but I had to take a class on very very basic corporate law, but basically wouldn’t this be like bankruptcy? A judge partitions the assets among creditors and shareholders? Except we’re talking about a lot of corporations and a lot of judges. It would probably take awhile.
What would society look like after? I can’t do more than speculate. My google-fu can’t point to a modern society with both a functioning stable government and no corporations. Maybe others have more luck.
But it seems to me, and maybe I’m wrong, what you’re really getting at is what you said in the comments:
“I agree. Corporations are useful tools…Forgetting that they’re tools seems to be part of the problem these days, however.”
That is the start of a very relevant discussion…what the proper roles and responsibilities of corporations are in society. Is that what you were getting at?
Julian: “russell, If Hobby Lobby were not a corporation but rather an individual person who employed people and didn’t like subsidizing birth control, would you say that s/he had the right to refuse to do so?
Because if you wouldn’t, then your objection doesn’t seem to be about corporate personhood as much as about religious rights in general.”
Religious ‘rights’ of *employers*. The employees can go jump in a lake, and ‘religious rights’ means the ‘right’ to object to only certain things. I didn’t see anybody on the right discussing the ‘right’ of companies to opt out of being used by the NSA for universal surveillance, for example.
And to my mind, if the Hobby Shop gets its exmption, how does this logic not invalidate all labor law on equal treatment and non-discrimination?
I don’t think that’s a fair observation. The employees are free to do whatever they please. They’re just not entitled to benefits their employer doesn’t choose to offer.
Possibly I am arguing counter to a point you’re not making, though. Wouldn’t be the first time for me.
russell, If Hobby Lobby were not a corporation but rather an individual person who employed people and didn’t like subsidizing birth control, would you say that s/he had the right to refuse to do so?
IMO there are a number of issues involved in your question.
First of all, I’m not sure it’s accurate to think of the employer as “subsidizing birth control”. If you employ people and include health insurance as part of the compensation, it’s not your business what use they make of that.
It’s their asset, not yours, and your association with how they use it is so indirect that claims of “subsidizing” one use or another seems very thin. To me, anyway.
And how far can you stretch that idea? If I hire someone and they take the money I pay them and piss it away on booze, or blow it at the track, am I subsidizing their addiction? If they donate some of it to causes with which I strong disagree, am I subsidizing those causes? If they use it to fund criminal activity, am I subsidizing those activities?
If the Greens prevail and Hobby Lobby is granted an exemption from the mandate, and some of their employees purchase the drugs in question out of pocket, aren’t they subsidizing those drugs through the wage they pay the employees? How is that different than “subsidizing” it through the insurance?
Second, IMO religious conscience is best applied to oneself and one’s own behavior, not others’. The flip side of the Green’s efforts here is that, were they to prevail, their employees would be denied compensation that others receive as a matter of course, and which is their due under the law, and which many of them would likely not have a religious scruple about using.
So, there’s that.
I am *by far* not hostile to religious faith and practice, nor to the demands and obligations of conscience, and I’m actually sympathetic to the Green’s *personal* dilemma.
But I also recognize that people believe lots of different things, many of them quite strongly, and if we’re all going to participate in any kind of public life at all, we all have to accept that everyone else can’t be expected to accommodate us if we find some aspect of public, common life objectionable.
Trust me when I say that I have my own list of things like this, as do many if not most people.
So the short answer to your question is no, if someone was hiring somebody else directly, not via a corporation, and it was in a context where the laws concerning employee compensation applied (i.e., not a babysitter), IMO they would not be able to refuse to comply with the law because they had a moral objection to some part of it.
All of which is an aside to the basic point that the Greens, as people, are not the same as Hobby Lobby. The Greens have religious scruples, Hobby Lobby is incapable of having them.
You can’t have it both ways. You can’t say “my corporation is indistinguishable from me” when it comes to complying with compensation law, and then say “my corporation and I are distinct entities” when it comes to (frex) liability.
If you want the protection of the law, and participate in public life with those protections in hand, then you have to observe the rules by which public life is governed.
“I don’t think that’s a fair observation. The employees are free to do whatever they please. They’re just not entitled to benefits their employer doesn’t choose to offer.”
If this is true, how is it that employees can be entitled to, among other things:
A workplace free from sexual harassment
Hiring and promotion decisions made without racial bias
Minimum wages
Minimally safe working conditions
Regardless of whether the employer chooses to offer them?
Unless you think the above entitlements (or “rights”) are bad/unconstitutional/whatever, you’re clearly on board with employees being entitled to some things regardless of employer choice.
If Dow Chemical were Episcopal and DuPont were Jewish, would one of them have to convert in the event of a merger?
There are laws that ensure those things. Laws requiring birth control in an employer-offered healthcare package, not so much.
At least, until recently perhaps.
At least, until recently perhaps.
Yes, that’s exactly right. And, all of the things that Julian mentions were brand-spanking-new at some point.
Does the vintage of the mandate change the underlying issue?
what happens to corporations formed under state law when that state repeals its corporate code?
This is an interesting question, but I guess I’m not clear on why it comes up.
I can’t imagine any state doing something like this, because corporations are actually very useful and effective instruments for their basic purpose.
Is your question more or less theoretical? Or, is there a real-world question you are trying to raise?
Not really, but the effectivity of ACA is still mostly in the future.
In the present tense, certainly, employers are not required to offer health insurance at all. Whether they’re required to offer insurance plans that include e.g. birth control, morning after pills, etc under ACA is sort of beyond my ken. Which is a testament to my laziness, as well as a testiment to the godawful length of the bill.
If people have a particular beef with the dictates of ACA, they can go to the courts. If they don’t find relief there, there are further choices, but maybe not what they’d prefer. They could for instance look into splitting into individual franchises, which probably could all duck under the lower limit of (IIRC) 50. Or sell off the business.
This kind of coercive policy is not really in line with my notions of what our government should be doing, which is my grounds for objecting.
“Not really, but the effectivity of ACA is still mostly in the future.”
The contraceptive mandate is being challenged in the Supreme Court right now. I don’t know what part of the ACA that is relevant to this discussion you could be alluding that is “mostly in the future.” The contraceptive mandate regulations are currently in effect.
“Whether they’re required to offer insurance plans that include e.g. birth control, morning after pills, etc under ACA is sort of beyond my ken. Which is a testament to my laziness, as well as a testiment to the godawful length of the bill.”
It is chiefly a testament to your laziness, as I uncovered that they are in fact required to include insurance plans that offer such things through fifteen seconds of googling.
“This kind of coercive policy is not really in line with my notions of what our government should be doing, which is my grounds for objecting.”
What do you mean “this kind”? I named other coercive policies, like OSHA, title VII, and so on. Do you have a problem with them too? Or is this one different?
I didn’t know the employer mandate was such a secret.
Corporate policy coverages are the same right now as they were at the start of the year, are they not?
Maybe I’m just out of touch.
I award you one Internet.
What private citizens are regulated by OSHA? If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?
Maybe this is something we’re not going to agree on.
There are limits to the employer mandate, hsh. I found some of those with about 15 seconds of Googling.
Which maybe makes me a little less lazy than I like to pretend, but only a little.
“Corporate policy coverages are the same right now as they were at the start of the year, are they not?
Maybe I’m just out of touch.”
I have no idea what this means. Can you be less cryptic?
“What private citizens are regulated by OSHA? If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?”
What is the point of this question? If you’re curious about OSHA, go google up a storm. If you come up with something that rebuts any of the points I’ve made, by all means share it.
“There are limits to the employer mandate, hsh. I found some of those with about 15 seconds of Googling.”
What limits? Are those limits relevant? What are you talking about?
There are limits to the employer mandate, hsh.
I’m not sure I get your point here. When the mandate goes into effect, employers with 50 or more FTEs will have to provide health insurance that meets certain requirements or pay a fine. So, you are correct in that the mandate does not yet apply, though the issue is still a very real one, given the inexorable passage of time, which explains the existence of the court case mentioned in the top post.
At any rate, certain things must be covered, some of them specifically because they are considered preventative care and reduce overall healthcare costs – solving the collective action problem discussed here a month or so ago, namely that individual insurers don’t want to pay for preventative care that is likely not to benefit them in the future, after someone moves to another insurer, even though all insurers would benefit if they all played along. One of the things under the heading or “preventative care” is contraception.
No one is being forced to provide contraception. Most employers don’t do that, even if they are smart enough to save money in the long run by allowing their empoyees easier access to contraception by providing health insurance that covers it.
Setting aside the well-reasoned argument russell made about wages “subsidizing” anything employees want to spend them on, if we were to view employer-provided health insurance as a subsidy for whatever use employees make of it, it would be a negative-dollar subsidy in the case of contraception, which is a bit weird conceptually (or contraceptually, perhaps).
Yes, the government is coercing employers to participate, along with many other economic actors, in the relative reduction of our rapidly rising healthcare costs. We’re on a slippery slope to Stalinist forced atheism.
If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?
No. And the ACA will not allow the government to fine you for not going on the pill, either.
thompson: That is the start of a very relevant discussion…what the proper roles and responsibilities of corporations are in society. Is that what you were getting at?
russell: I can’t imagine any state doing something like this, because corporations are actually very useful and effective instruments for their basic purpose.
Is your question more or less theoretical?
These are both (more or less) in response to my question of what happens to corporations formed under state law when that state repeals its corporate code?
It is more or less theoretical as it would never happen, nor would I endorse it happening. It’s mostly reminder that corporations, unlike natural persons, are creatures of state law and thus things can be done to them that can’t be done to natural persons – like being legislated out of existence.
Again, they’re a tool subject to refashioning if it becomes broken, or more harmful than helpful. It would be an interesting test case if a corporate code were amended to provide that corporations could not, e.g., spend funds for advertising. Free speech violation?
count me in!
This kind of coercive policy is not really in line with my notions of what our government should be doing, which is my grounds for objecting.
I definitely get that and understand it.
The problem is that if there is any standard or mandate or requirement at all, then there will be coercion.
If there is no standard or mandate or requirement, then the fundamental benefits of having (in this case) public health policy begin to be eroded. Certainly the public health benefits of making basic care widely available begin to be eroded.
The range of things to which somebody, somewhere will have a strong religious objection are not limited to contraception. Nor, as in the Green’s case, are they even limited to contraception per se, but only to certain kinds. And, among the objectionable kinds, some are more objectionable than others.
So, not so simple.
Some people object to blood or plasma transfusions on religious grounds. Some people object to vaccinations on religious grounds.
Should they be exempted from offering insurance to their employees that include coverage for vaccinations or transfusions?
Note that no-one is asking them to *purchase or use* contraception (or transfusions or vaccinations). What’s being required of them is compliance in a public policy where things they object to are available by other people, to other people.
At a certain point, and not a particularly remote one, the value of having a public policy at all gets lost due to the number and complexity of exemptions and carve-outs.
You could simplify life by simply taking stuff like health care out of the public arena altogether, but then you get a million other problems. IMO that approach amounts to basically throwing up your hands and walking away from real problems.
I appreciate the Greens’ *personal” discomfort and objection, and have nothing against them or their point of view. I just don’t see how the public sphere works if anyone can opt out whenever their conscience is troubled.
Anyone who pays taxes, frex, is in the same boat. Which is to say, we all are in the same boat.
One way around the Green’s personal discomfort would be to have single-payer or a national health service. Then their hands would be clean.
i get the feeling that the Greens would find some other personal discomfort to share with us.
corporations, unlike natural persons, are creatures of state law and thus things can be done to them that can’t be done to natural persons – like being legislated out of existence.
i have nothing to add to this other than “well said”.
“corporations, unlike natural persons, are creatures of state law and thus things can be done to them that can’t be done to natural persons – like being legislated out of existence.”
I don’t see anyone really disputing this, and I doubt Paul Clement would. The debate is not whether corporations and people are at all different; the debate is how big a difference there should be, i.e. “what things,” exactly, can or can’t be done to corporations. Right?
the debate is how big a difference there should be, i.e. “what things,” exactly, can or can’t be done to corporations. Right?
I think it’s a practical question of should or shouldn’t rather than can or can’t. I think that’s what Ugh’s getting at. Corporations don’t have the same rights that are granted to human beings in the constitution unless a state says they do, for the sake of some practical purpose, which means the state can just as easily say they don’t, for some practical purpose.
So there is no “can’t” with regard to limiting what corporations can do.
What do you mean “this kind”? I named other coercive policies, like OSHA, title VII, and so on. Do you have a problem with them too? Or is this one different?
Shouldn’t any policy that coerces be the last and not the first resort, and then only for reasons that really do compel? And, are you saying that if I acquiesce in even one coercive policy, I’ve waived my right to object to any other coercive policy?
The gov’t is mandating birth control and day after pills. This is a policy preference of the left. It is, what the left continually accuses the right of doing, forcing the left’s view on those who disagree.
Abortion is next, and any statement to the contrary is as reliable as Obama’s promise that everyone gets to keep their plan and their doctor.
Whether it is constitutional in all configurations, or whether it is constitutional to require a corporation but not an individual employer to do something that violates his/her conscience–and is known to do so–is beside the point. I haven’t thought heavily about it and don’t have an opinion at the moment. Regardless, it is disturbing. It may be just good, clean fun for progressives, but it is heavy-handed executive whimsey for many of the rest of us. It sometimes seems progressive are only happy when they are forcing others to do their will.
“Shouldn’t any policy that coerces be the last and not the first resort,”
All legal requirements coerce
“and then only for reasons that really do compel?”
I guess YMMV on what compels
“And, are you saying that if I acquiesce in even one coercive policy, I’ve waived my right to object to any other coercive policy?”
I am not saying that. I asked Slarti (or anyone) to state the difference they see between the contraceptive mandate and Title VII.
Please understand I see a difference too, but I want to know what you guys think–it’s easier for me to ask than to guess.
So, explain to me the material difference between
1) requiring employers covered by PPACA who provide health insurance to provide insurance that covers contraception, even if they religiously object to contraception
and
2) requiring employers covered by Title VII to not racially discriminate in hiring, even if they religiously object to race-mixing.
The gov’t is mandating birth control and day after pills.
“mandating” = mandating that they are covered as part of a standard health insurance package. not mandating = [any of the many other things it could be].
if you don’t want to use them, don’t use them. your shiny new STD or unwanted pregnancy will be covered, too.
If I want to change a light bulb without flipping the breaker off, will OSHA write me up for a violation?
It might if you’re an employee in a home-based worksite.
1) requiring employers covered by PPACA who provide health insurance to provide insurance that covers contraception, even if they religiously object to contraception
and
2) requiring employers covered by Title VII to not racially discriminate in hiring, even if they religiously object to race-mixing.
First, show me a religion that favors racial discrimination and that is impacted by Title VII. Otherwise, I think what we have here is a straw man.
But, I’ll fight your straw man. My refusal to buy your sister birth control pills in now way effects your sister’s right to buy her own pills. Further, no one is claiming the right to discriminate against people who use birth control. Further still, we have this thing called the 14th amendment that provides for equality under the law. Taking that a step further and prohibiting inequality in the work place is a negative injunction–do no harm to minorities or women. ACA compels affirmative acts that violate conscience. When the gov’t gets in the business of doing that to people, it is disturbing, to say the least.
But like I said, for many progressives, forcing others to live by progressive values is a source of joy and fulfillment. Making others do what *you* know is good for them, is a good thing, whether those being forced know it or not.
if you don’t want to use them, don’t use them. your shiny new STD or unwanted pregnancy will be covered, too.
Missing the point, again. This isn’t about what the employee does or doesn’t do. It is what the employer and the insurer are required to do. The employer has no choice–the insurer has no choice–but to provide this coverage.
“First, show me a religion that favors racial discrimination and that is impacted by Title VII. Otherwise, I think what we have here is a straw man.”
How about an employer who is a Christian Scientist and objects to being required to provide health insurance coverage for any medical treatment? Plausible enough for you?
” ACA compels affirmative acts that violate conscience. When the gov’t gets in the business of doing that to people, it is disturbing, to say the least.”
The ADA requires affirmative acts, including reasonable accommodations for the disabled. Does that disturb you? We all have to pay taxes, some of which go to support the military. If that bothers a Quaker’s conscience, are you disturbed?
“My refusal to buy your sister birth control pills in now way effects your sister’s right to buy her own pills.”
X’s refusal to hire black people in no way affects a black person’s ability to get their own job elsewhere.
What’s the difference between my hypo and yours?
“My refusal to buy your sister birth control pills in now way effects your sister’s right to buy her own pills.”
It’s more like saying my sister’s insurance provider should not be required to provide birth control if doing so would violate your religious principles. You are not a party to the actual transaction involving the birth control, so how are you harmed?
The gov’t is mandating birth control and day after pills.
The government is mandating that insurance policies offered as part of employee compensation (or maybe all health insurance policies, I freely confess to laziness a la slarti) include coverage for birth control, including day after pills.
The above two things are not the same.
Nobody is required to take a morning-after pill. At the uttermost, an employer is required to contribute to an insurance policy that includes coverage for the same.
So, for that matter, will employees in most cases, because employees generally have to contribute to the cost of their health insurance. Will individual employees be able to demand alternate health insurance plans, tailored to their personal convictions?
I don’t really know how insurance funds are handled from an accounting point of view, but if Insurance Company X sells a policy with coverage for birth control to Atheists Inc., and a policy without to Hobby Lobby, are they required to keep the revenue inflows and outflows for those policies scrupulously separate, lest some dollars paid in by Hobby Lobby should somehow find themselves paying for a morning-after pill purchased by an employee of Atheists Inc.?
Another, different question:
The money being used to pay the premiums for Hobby Lobby’s insurance policy, whatever it is, is not coming from the personal bank account of the Greens. It’s coming from the wealth held by Hobby Lobby. Do the employees of Hobby Lobby, who are in no small part responsible for the creation of that wealth, have any voice in what their compensation should look like? Or is it purely the Green’s call?
This issue is being discussed as if the only actors involved here are the Greens personally, and The Oppressive State. And, that the only dynamic here is whether a religious individual should be COERCED into doing something they find objectionable.
What I want to reiterate, ad nauseum if need be, is that the degree to which the Greens are being required to engage in things they object to is no more or less than every single person in this country is required to do, when we pay a penny in taxes of any form, or send our kids to public schools, or participate in almost any form of public life.
Operating a for-profit business is an activity that by its nature takes you out of the sphere of your personal druthers. You can’t decide to not provide goods and services to people because you don’t approve of their lifestyle, you can’t fire people because you don’t like what they do on the weekends, etc etc etc.
You can’t do these things because engaging in public behavior, of whatever kind, is not solely an act of self-expression, and is therefore subject to a greater or lesser degree to other folks’ interests and demands.
You don’t have to get involved in any of that. You can go live in the woods and make, raise, or hunt and gather whatever you need to live on.
If you don’t want to go that way, you should prepare yourself for social, legal, and civic coercion, because that’s the reality.
And all of those forms of coercion are BY NO MEANS the unique and exclusive domain of the left.
I appreciate the Greens’ dilemma, but if you want to play in the big sandbox you don’t always get your way. That’s life.
good
“this coverage” will help reduce unplanned pregnancies (49% of all pregnancies in the US are unplanned), which will lower healthcare costs for everyone. and it will help reduce unwanted pregnancies, which is a good thing. and it might even help reduce the transmission of STDs, which is an obvious benefit to the user and to the general public.
suck it up. sex is something people do, and it’s risky in terms of lifestyle and healthcare coverage; and these things help mitigate those risks. and that benefits everyone.
if you’re so concerned about the burdens placed on the poor employers, you should think about advocating for a single payer system.
Hobby lobby is happy to buy prodcuts made in China, with its sex selective abortions and forced prison labor (many of whom are imprisioned becuase of their religous beliefs (yeah, that’s what actual religous persecution looks like). It seems that the owner’s Christian morals stop when where is more money to be made.
So yeah, these corporate religous beliefs are awfully flexible.
“this coverage” will help reduce unplanned pregnancies (49% of all pregnancies in the US are unplanned), which will lower healthcare costs for everyone.
No, it won’t. If you actually examine the causes of unplanned pregnancy, access to birth control is not a significant factor in the United States. Birth control is ubiquitous at pharmacies, and available for free, or nearly no from both governmental sources, such as metro and county health departments, or NGOs like Planned Parenthood.
Above and beyond that, the small percentage of individuals who are unable to easily access or afford birth control are not likely to be employed at a job that pays well enough to provide health insurance.
If you want to make birth control easier to get, the solution to offer the pill over the counter, not through some convoluted prescription regimen that still requires women to use a medical gatekeeper.
This is a completely symbolic fight for both sides. The practical aspects on women’s health and unplanned pregnancy are negligible.
How about an employer who is a Christian Scientist and objects to being required to provide health insurance coverage for any medical treatment? Plausible enough for you?
It is, in theory, but I know of no Christian Scientist now or in the past who has made such a claim, but the example *is* plausible. If you reread my first comment, I expressly stated that I am not addressing the constitutional issue. I am making the point that progressives are fine with coercion as long as people are being coerced progressively. My second point is that progressives are fine imposing their values on others and in this instance it is heavy handed and disturbing–particularly since it is being done by the executive and not congress.
But, if you are asking me to say why the First Amendment would allow the state to compel a Christian Scientist to buy health insurance for an employee but does not permit compelling an employer to buy insurance that includes BC, I could probably put together an argument, but it would take more time than I have–complex legal arguments have that feature; they take time to formulate and express. Right now, I don’t have that time. If there is a line, it wouldn’t be particularly bright. I might even conclude that the requirement is constitutional. I don’t know, which is why I begged off in my initial comment.
X’s refusal to hire black people in no way affects a black person’s ability to get their own job elsewhere.
What’s the difference between my hypo and yours?
The difference is night and day. Whether I discriminate illegally hiring is irrelevant to what benefits I confer on my employees after they are hired. If I hire someone, I am not discriminating against that person. If I choose not to distribute condoms to men and birth control pills to women, that is not a discriminatory act on my part just as not distributing the American Prospect is not discrimination.
The above two things are not the same.
Russell, I’m pretty sure the context of my pitch referred to the HHS’ requirement of coverage and was not implying that HHS is requiring everyone to use BC.
What I want to reiterate, ad nauseum if need be, is that the degree to which the Greens are being required to engage in things they object to is no more or less than every single person in this country is required to do, when we pay a penny in taxes of any form, or send our kids to public schools, or participate in almost any form of public life.
This is a subset of the “We are all coerced to some degree, therefore any further coercion is no big deal” phenomena I noted above.
And it misses the point. Paying taxes per se that support something that violates a taxpayer’s conscience has never given anyone constitutional grounds to not pay taxes. However, this is different: employers are being required to insure their employees, or pay a penalty, and the insurance MUST include BC and morning after pills. Abortion is down the road–we all know this–but progressives are smart and they are taking the long view. The gap between “all taxpayers” and “all employers” and the gap between “gov’t services” and “indirectly funding abortion” are pretty wide.
But, from a progressive point of view, once we’ve narrowed the gaps this far, the next round of “thou shalt’s” can be even more restrictive and more universal.
Cleek is honest, for which I thank him/her (seriously, I think you’re a guy, but damned if I actually know that and I absolutely intend no offense). In his world, BC is a good thing and it will be made available and anyone who disagrees can just learn to live with it. Progressivism in its purest form.
Cleek is honest
Crap. This implies that everyone else isn’t. Really bad word choice. Please read “unapologetic”. Apologies to all.
It’s more like saying my sister’s insurance provider should not be required to provide birth control if doing so would violate your religious principles. You are not a party to the actual transaction involving the birth control, so how are you harmed?
I disagree. If I am the employer, I am buying the insurance that pays for the BC. No insurance, no BC unless sister buys it for herself.
First, show me a religion that favors racial discrimination and that is impacted by Title VII. Otherwise, I think what we have here is a straw man.
Given that Title VII only carves out religious organization exceptions for religion, sex, and national origin, but not for race, I’m pretty sure your average Christian Identity church finds said title to be both exceedingly coercive and entirely uncompelling state interference into a matter of private religious conscience. The same would naturally follow for any employer belonging to a Christian Identity denomination.
Pretty sure I just dropped a comment into the memory/spam hole. If someone duly empowered to do so could give said blighted pit a looksee and rescue the aforemention should it be deemed worthy, I’d be much obliged.
Ugh:
“Again, they’re a tool subject to refashioning if it becomes broken, or more harmful than helpful. It would be an interesting test case if a corporate code were amended to provide that corporations could not, e.g., spend funds for advertising. Free speech violation?”
I could be wrong (something tells me you’d be more qualified than I to answer this question), but I think that a similar issue was already decided in Citizen’s United. To quote Justice Kennedy:
“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
It’s possible to consider commercial speech (advertising) less protected than political speech, and an example of that would be advertising restrictions of off-label use of medicines or advertising restrictions on tobacco products near schools or during saturday morning cartoons.
(An interesting corollary, can an individual advertise for tobacco around school grounds? “Hey kids, I sure enjoy the smooth flavor of this cigarette!” Other than being WRONG in so many ways, is that illegal? Contributing to the delinquency of a minor, maybe?)
So clearly we CAN restrict speech of corporations, and even individuals. But we tend to do it in limited ways in the face of compelling public interest. Fire in a movie theater, imminent threats, etc.
I imagine people here disagree soundly on what is “limited” and what is “compelling”, but most agree that limited restrictions to compelling problems do exist and are, at times, warranted.
I think the free speech hypothetical is an important one, because freedom of expression, like freedom of religion, strikes to the core of self-determination. And I think one of the things you have to carefully weigh, as I think Kennedy did, is if you can restrict the rights of corporations (even if they are endowed by state law and legal fiction) without indirectly restricting the rights of individuals.
To give you a completely fictitious hypothetical:
If there was a congressman that was blatantly for, say, drilling off of the california coast, what do we gain by preventing the Sierra Club from using their funds to advocate against this congressman during election season? The SC is an influential and knowledgeable environmental group, many people would find their opinion important in making up their mind who to vote for.
We can say, no, you can’t advocate for or against a political candidate as group, you have to do it individually. But than those individuals, each with not enough money to by TV ads and radio time, can’t really get their message out in an effective manner. After all, the whole reason people join the SC is so they can pool their resources to advocate for something they believe in.
So, to answer your question, I think we can retool corporate law. And while corporations are “legal fiction” and not endowed with rights by their creator, it can be difficult to restrict the “rights of corporations” without restricting the rights of the people that are part of that corporation.
If I am the employer, I am buying the insurance that pays for the BC.
I have two issues with this statement.
1. IMO oversimplifies the relationship of a person acting in an executive role at a company, to the employees, the corporation, and for that matter the insurer. Businesses are not fiefdoms, and executives are not sovereign autocrats.
In a nutshell, decisions about what goes into an employees compensation are not solely the prerogative of the employer. That is, straight up, part of the deal.
2. This greatly overemphasizes the actual degree of agency and/or responsibility that the employer has in the actual provision of stuff like birth control to an insured person.
The relationship of any member of the Green family, to an actual act of somebody taking a morning after pill, approaches something like social homeopathy.
The distinction between the Greens as people and Hobby Lobby as a legal entity, the amount of Hobby Lobby’s overall health insurance contribution as compared to the amount that might find it’s way to objectionable birth control services, the number of people who work for Hobby Lobby who might actually take advantage of that coverage, etc etc etc.
In real, practical terms, the degree to which any member of the Green family is being required to “subsidize” objectionable forms of birth control is minute.
NOBODY IS BEING REQUIRED, ENCOURAGED, OR OTHERWISE INDUCED TO TAKE A MORNING AFTER PILL.
There are clear and tangible public health benefits to making access to birth control available to people. The Greens are not the only people involved here, and their moral scruples need to be weighed against the interests of everyone else.
The Greens are making a point, which is fine and is their prerogative. Other folks have their own points to make, and many of those points are just as compelling as the Greens’.
They need to demonstrate why their interests should trump those of other folks.
progressives are fine with coercion as long as people are being coerced progressively.
You’re making a reasonable point, but if you’re trying to extend that point to mean “as opposed to what every and anybody else does”, you’re on thin ice.
Everybody has their personal favorite plans for everyone else. Even you, McK.
However, this is different
That may be, but I don’t see where you have demonstrated how.
McTx: Whether I discriminate illegally hiring is irrelevant to what benefits I confer on my employees after they are hired. If I hire someone, I am not discriminating against that person.
You speak like a corporation, McKinney: “I discriminate”, “I hire”. I suppose “progressives” should not be surprised that “conservatives” talk like that, but never mind. Let’s assume you are talking from the point of view of a sole prop who employs hundreds of people.
As a sole prop, you are unquestionably a person. You have personal tastes and taboos, and you are entitled to them. If I had my way, you would be free not to hire me due to my religion — just as I am free not to patronize your business due to your ideology. Personal freedom is a progressive value, despite your cartoonish generalizations.
As a sole prop, you would be free to treat your employees any way you like. No minimum wage, no safety requirements, no health insurance mandates. Knock yourself out.
But if you want to incorporate yourself, you’re asking me and my fellow citizens to give birth to a new “person”. Sorry to tell you this, but that new “person” gets our DNA, as well as yours. You don’t want your Purity of Essence contaminated by “progressivity”? Practice abstinence.
–TP
it can be difficult to restrict the “rights of corporations” without restricting the rights of the people that are part of that corporation.
True and noted as such, however all of the things that bear the name of “corporation” are not alike. They have very different reasons for being, different restrictions may therefore apply.
I have no problem with corporations being allowed to advertise, but I do not mistake that for “self-determination”.
that new “person” gets our DNA, as well as yours.
Absolutely and precisely on the money. Well said Tony.
As a sole prop, you would be free to treat your employees any way you like. No minimum wage, no safety requirements, no health insurance mandates. Knock yourself out.
But if you want to incorporate yourself, you’re asking me and my fellow citizens to give birth to a new “person”. Sorry to tell you this, but that new “person” gets our DNA, as well as yours. You don’t want your Purity of Essence contaminated by “progressivity”? Practice abstinence.
I’m responding in the middle of my second adult beverage. Apologies in advance for any offence.
It’s a bit of a reach to say that, because someone does business in the corporate form, they surrender their individual liberty to progressive whimsy. But it is consistent progressive philosophy: if you accept anything at all from the gov’t, e.g. use of the roads, the fire department, etc, you are all in for whatever else gov’t might wish to impose. It’s also incorrect to say that as a sole proprietor, which I sort of was until just over a year ago, that I could do as I pleased. I was still bound by minimum wage, OSHA, FLSA and a host of other–mostly legitimate–requirements.
What riles me most about progressives is the lack of *any* defined limit on what gov’t can require of an individual. You won’t give a bright line on where, for example, my right to own and operate a business can’t be limited/infringed/f’d with, etc by your next great idea that will make everything awesome for everyone.
Jesus, it’s tiresome. If progressives think something is a good idea, that is the end of the discussion. Period.
Sorry for the rant.
“however all of the things that bear the name of “corporation” are not alike. They have very different reasons for being, different restrictions may therefore apply.”
Certainly. And current corporate law is certainly in line with that…that’s why there are many flavors of corporations (public, private, nonprofit, etc). I tihnk
“I have no problem with corporations being allowed to advertise, but I do not mistake that for “self-determination”.”
Ok, I guess I’m glad you aren’t confusing two entirely distinct concepts, but I don’t really get what this means. I was bringing “self-determination” that up as part of a hypothetical where restricting corporate speech was tantamount to restricting personal speech to expand on a hypothetical Ugh mentioned. I assume you disagree with or would like to add to some part of that, I’m just lost as to which part.
“You won’t give a bright line on where, for example, my right to own and operate a business can’t be limited/infringed/f’d with, etc by your next great idea that will make everything awesome for everyone.”
I asked you about the First Amendment issue and you passed on it. If you want to talk about rights, have at it. If there is some other source of rights on this issue you want to bring up, feel free.
“If progressives think something is a good idea, that is the end of the discussion. Period.”
End of discussion? I’m sure there are plenty of people here happy to continue discussing whether or not the contraceptive mandate is a good idea or not, or whether it is constitutional or not. So I don’t see anyone ending discussion.
“but that new “person” gets our DNA, as well as yours.”
That’s pretty much the basis of all laws. Restricting individual action for societal good.
And again, whether the “good” is good enough and the “restriction” is the least imposing method of achieving the good is where people disagree.
What has bothered me about the comments (and dissuaded me from entering in) so far is that they regularly convolve “can” we regulate corporations in X way with “should” we regulate corporations in X way. Not saying people aren’t aware of the distinction, it just seems like people are talking at cross purposes at times.
Jesus, it’s tiresome. If progressives think something is a good idea, that is the end of the discussion. Period.
I’m one up on you, so kindly accept my apologies in advance as well.
Nothing unique about progressives as regards imposing their view of what’s good and useful upon the rest of the world.
That is all.
Sorry for the rant.
Likewise, and no worries.
I don’t really get what this means.
Cool, I’lll break it down for you.
I was bringing “self-determination” that up as part of a hypothetical where restricting corporate speech was tantamount to restricting personal speech to expand on a hypothetical Ugh mentioned.
And I was pointing out that the hypothetical was at best no more than that, because as regards commercial for-profit corporations – the folks who advertise – restricting corporate speech is not tantamount to restricting personal speech.
One’s protected under the 1st, one is not. Or well ought not be.
Hope that helps clarify things.
McTx: It’s a bit of a reach to say that, because someone does business in the corporate form, they surrender their individual liberty to progressive whimsy.
It is such a reach, in fact, that NOBODY says that.
Make up your mind, McKinney: is “the corporation” a separate “person” from the persons who are its shareholders, or isn’t it? You, as person, are not required to provide anything to anybody. Restrictions on the “individual liberty” of a separate “person” that hires its own employees, pays its own taxes, owns its own property, and does not share its liabilities with you, are not restrictions on YOUR “individual liberty”.
You can, if you like, try the “first they came for the corporations …” line, of course. But isn’t it a bit too early to Godwin this discussion?
–TP
“And I was pointing out that the hypothetical was at best no more than that, because as regards commercial for-profit corporations – the folks who advertise – restricting corporate speech is not tantamount to restricting personal speech.”
Thanks, that is way more clear. I’d agree the calculus shifts between for-profit and non-profit corporations. Talking about political speech (Citizen’s United), its more relevant to discuss non-profits, as they are the ones typically engaging in political speech. In that regard, I think the hypothetical is extremely relevant
Restricting just to commercial advertising, I’d say it’s clearly something which can be restricted to some extent. The 1st has been ruled to apply to commercial speech, although commercial speech has lower protections. The DC Circuit ruling on tobacco labels is a recent and relevant ruling which is probably a good read on the subject. IANAL, but it was a good crash course in the appropriate law, I thought, and the only recent thing I could really find on the subject:
http://www.cadc.uscourts.gov/internet/opinions.nsf/4C0311C78EB11C5785257A64004EBFB5/$file/11-5332-1391191.pdf
I don’t believe the ruling has been successfully appealed, but I’m still checking.
To summarize the document (if you trust my summary): Commercial speech is less protected than other forms of speech, but the 1st does apply to corporations and has for awhile. In terms of citing cases the concept goes back to the 60s at least, I stopped citation hopping pretty shortly:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=475&invol=1
Many of the earlier examples of corporate free speech cases semm to have involved corporate newspapers (such as the New York Times).
I’d be curious to hear views on laws determining what newspapers or other news corporations MUST and CANNOT do.
Would it be constitutional for a law that mandated corporately held newspapers spend a column in support of whichever party currently holds the presidency? Or forbid excessively negative characterizations of congress?
I’m not saying anybody is suggesting we muzzle newspapers…I’m just offering an example where a corporation exercises free speech in what most would consider to be important way.
And again, yes, there are distinctions, I’m just trying to figure out how absolute is the thought of:
“So there is no “can’t” with regard to limiting what corporations can do.”
Because case law disagrees. Which isn’t to say you have to agree with case law (I frequently don’t). I’m just curious if that statement (made by hsh, I believe, and similar to other statements made) is actually absolute.
Another relevant linky:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=475&invol=1
And to be clear, IANAL, and if anybody with an actual JD wants to weigh in on my ramblings, I’d appreciate it.
I realize my posts would be way shorter if I didn’t repeat myself. Hah. Editing is hard in tiny boxes.
i think the issues involved in this situation are being presented in a needlessly complicated fashion. collaterally, many otherwise intelligent (i think) people are demonstrating a remarkable ignorance about insurance. perhaps it’s because some of you have never been part of a group insurance plan or perhaps it’s because some folks are being deliberately obtuse in order to bolster their argument. relating to that i have a comment and a question.
first the comment: when you are part of a group insurance plan part of your premium goes to things you may never need or use. with my wife’s postal service plan or the plan offered by my school none of the men on the plan are ever going to directly use any of the benefits relating to care by ob/gyns. certainly they might get some benefit from that type of care if their spouse is being covered but the single men and the post-menopausal women aren’t going to be using it. similarly the single women aren’t going to get a lot of use from the regular prostate exams being paid for by the plans. but that is what group insurance is all about. each individual pays in so that the entire group can benefit whether each individual makes use of all of the options in the plan or not. to argue that each individual ought to be able to separate out their own needs from the group plan and not be required to pay for parts of the plan they don’t need is similar to arguing that because one can’t stand the idea of paying for food stamps one ought ot be able to direct one’s taxes elsewhere, or nsa spying, or military activities, etc.
now the questions. is employment based health insurance a benefit of employment or not? if it is then how can the employer legally forbid its employees from using their benefits to pay for legal activities? can an employer forbid employees’ purchase of contraceptives with the pay employees receive? if not, then why can the employer forbid coverage of contraceptives as part of their health insurance benefit? is there anyone here arguing that hobby lobby can legally prevent its employees from paying for contraceptives with their pay? and yet some here are saying that hobby lobby has the right to do so with another benefit of employment which says to me that the arguments are not nearly as logical as those making them would like to believe. if health insurance is different from any other benefit of employment then in what way is it different and why?
Can an employer drop the contraceptive coverage, and give the employees money instead? They’d actually be better off that way, as they could spend it on something else if they didn’t want the contraceptives. I seem to recall Hobby Lobby actually offering to do this, and having the offer rejected by the Justice Department. But this seems the exact sort of reasonable accommodation the RFRA normally would require.
My view of ‘corporate’ rights is colored by the realization that virtually everything in this country is done through corporations today, and this is not by accident. The legal system essentially forces the use of some kind of corporation if you want to do anything larger than a lemonade stand.
Can the government craft a legal system that forces the use of corporations, and then declare that you lose your civil liberties for anything done through a corporation? That’s the real question here, IMO. My view of the matter would be quite different if not forming a corporation was a real option for people wanting to do big things.
You, as person, are not required to provide anything to anybody. Restrictions on the “individual liberty” of a separate “person” that hires its own employees, pays its own taxes, owns its own property, and does not share its liabilities with you, are not restrictions on YOUR “individual liberty”.
TP, whether I hire in the corporate form or as an individual, sole proprietor, I am subject to the same wage and hour, minimum wage, insuring, Title VII (if I employ more than 15 people), etc. laws as a corporation. The only real difference is that an individual pays a higher rate of income tax and pays self employment tax instead of matching FICA. As a sole proprietor, if still was one, I would be required to offer insurance or pay a fine. I would do the insurance. That insurance, by executive fiat would include BC and the day after pill. I have no moral issues whatsoever and in fact am a big fan of BC. The day after pill, as I understand it, prevents fertilization–if that is the case, no issue. My issues are two: I think executive action to accomplish what never would have passed democratically is generally sucky and seriously so and since this is all a prelude to covering abortion services and requiring people like me to pay directly or indirectly for those services, I am extremely pissed off about it.
I asked you about the First Amendment issue and you passed on it. If you want to talk about rights, have at it. If there is some other source of rights on this issue you want to bring up, feel free.
Julian, my point–admittedly somewhat obscure–isn’t about debating rights. Rather, it’s that progressives, as far as I can tell, will not limit what they are willing to impose on others, particularly others with whom they disagree. Would you, for example, have a constitutional issue requiring a religious organization to purchase insurance that covered abortion, contrary to that church’s long, well established position?
Nothing unique about progressives as regards imposing their view of what’s good and useful upon the rest of the world.
Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group’s principles or beliefs? I can’t. The closest I can come is various state legislatures–democratically–trying to wire around Roe, which was not a democratically derived situation. What gets me is that progressives are basically “so what’s the big deal, Catholic Church, get over yourself”. If find this disregard for others appalling. The manner of getting there, executive decree, is only slightly less appalling.
Thompson–you have the law basically right. The current iteration is that the state should not be in the business of evaluating content to see who is inside or outside permissible limits on political speech. Others would have the state regulate content depending on whether someone is a corporation and whether that corporation is ‘for profit’. Then you get into the “legitimate” news organization issue because most journalistic endeavors are for profit and are incorporated. Still though, in the minds of some, there must be a way to let the Times write its editorials but keep Exxon from fussing about something Washington wants to do. Put differently, there is no human endeavor that right thinking people can’t usefully regulate and improve.
“Can an employer drop the contraceptive coverage, and give the employees money instead? They’d actually be better off that way, as they could spend it on something else if they didn’t want the contraceptives. I seem to recall Hobby Lobby actually offering to do this, and having the offer rejected by the Justice Department. But this seems the exact sort of reasonable accommodation the RFRA normally would require.”
I don’t think that would work. You’re assuming that Hobby Lobby would save enough money from dropping contraceptive coverage that if it were divvied up and handed out to employees, it would be enough to let employees go buy their own health insurance plan that only covered birth control (seamlessly filling in the gap in their coverage).
But I don’t think you can buy a health insurance plan that only covers birth control. For one thing, I’ve never heard of such a thing; googling doesn’t uncover one; and economically, I don’t see how it could be profitable to an ensurer unless it premiums cost the covered people more than the birth control drugs themselves, since adverse selection would guarantee that the pool of people buying it are all 100% going to be buying birth control.
So under Hobby Lobby’s (and your) proposal, the employees would be forced to buy another health insurance plan (on top of their employer-provided plan) that does more than just cover birth control–indeed, it would have to duplicate many of the benefits of their employer-provided plan. Which would mean that the money given to them to buy that additional plan would be inadequate.
“Rather, it’s that progressives, as far as I can tell, will not limit what they are willing to impose on others, particularly others with whom they disagree. Would you, for example, have a constitutional issue requiring a religious organization to purchase insurance that covered abortion, contrary to that church’s long, well established position?”
1. I would not have a constitutional issue with that, though I know next to nothing about First Amendment law
2. The fact that I don’t have a problem with that example does not prove that progressives “will not limit what they are willing to impose on others.” The claim is so obviously wrong that I don’t see why you keep bringing it up. I will conclusively rebut it for you so that you can drop it and stop embarrassing yourself.
For example, I am willing to let the Catholic Church engage in sex discrimination in who it ordains as priests and nuns. I would not impose Title VII hiring obligations on them for those positions.
I am willing to let churches remain tax free organizations so long as they don’t engage in politicking (of course the IRS basically doesn’t enforce that rule anyway, but it’s a nice idea).
Those are some limits I, a progressive, agree on.
“Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group’s principles or beliefs? I can’t”
What an oddly specific request. Why don’t you care if the executive merely enforced such a rule? But I’ll oblige you:
Eisenhower enforcing integration in Little Rock. (I eagerly await this rousing game of He’s No True Conservative).
And, in the category of enforcing such rules, George W. Bush keeping Don’t Ask Don’t Tell in place.
It’s funny that you make it a point of pride that, according to you, no conservative executive (by which I assume you mean President?) has ever required individuals to act against their beliefs. As though all personal beliefs are sacrosanct.
“You’re assuming that Hobby Lobby would save enough money”
I’m assuming nothing of the sort. Hobby Lobby has already made clear they’re willing to endure financial damage for their principles. The offer would have to be extra money, and not contingent on any savings. They would simply give the employees enough money to buy the contraceptives, if they wanted to.
“So under Hobby Lobby’s (and your) proposal, the employees would be forced to buy another health insurance plan”
No, they wouldn’t. Hobby Lobby gives them the money, and if they want contraceptives, they buy contraceptives. If they don’t want contraceptives, they buy something else. You don’t need to get contraceptives through insurance. You can just buy them with money.
i believe that mckinneytexas is still looking at the questions from the wrong end and would really like to read a response to the points i brought up. let me briefly summarize them–in the first place do you understand what group plan health insurance actually is? do employees have to submit to employer control of their use of job benefits and if they do then what is to prevent the employer from forbidding them to use their pay to buy contraceptives?
“I’m assuming nothing of the sort. Hobby Lobby has already made clear they’re willing to endure financial damage for their principles. The offer would have to be extra money, and not contingent on any savings. They would simply give the employees enough money to buy the contraceptives, if they wanted to.”
Can you prove this? Do you have any links? Because it doesn’t make much sense. Allow me to illustrate:
1) Hobby Lobby objects to being forced to buy insurance that provides contraception coverage. Let’s say that buying that insurance costs $10.
2) Hobby Lobby asks that they be allowed to opt for buying a health insurance plan that doesn’t provide contraception coverage. Let’s say such a plan costs $8.
3) Hobby Lobby offers, however, to pay employees who want contraception a higher salary. The salary will be sufficiently higher such that any employee who wants contraception can obtain the same level of contraception they would have been able to under a plan that covers contraception. Let’s assume that this salary boost will cost the company $3 (since you stipulate that Hobby Lobby is willing to take financial damage).
I would be very surprised if Hobby Lobby actually offered something like this. I don’t see how such an arrangement helps them assuage their religious concerns–they’d be paying birth-control using employees MORE money that is specifically allocated and defined by its use for purchasing contraceptives. This is just shuffling money around (rather than using it to buy insurance it is given to employees directly). And it would cost the company more.
So to reiterate, can you offer a link suggesting that this happened?
“You don’t need to get contraceptives through insurance. You can just buy them with money.”
Which kind of contraceptives are you talking about? Do you mean over-the-counter? Because I don’t think condoms are what anyone is talking about here. We’re talking about oral contraceptives like ortho-tri-cyclen, which are not obtainable over the counter.
If you’re telling me you don’t need insurance to go to a doctor and get a prescription drug, well, sure, you don’t need insurance for that. You just need enormous amounts of cash.
The conscientiously unvaccinated:
http://scienceblogs.com/insolence/2012/08/28/wielding-religion-as-a-weapon-against-vaccines/
I wonder about the legal precedents that will be set if the Green’s personal religious preferences are extended to their corporate personhood.
Why would it then be illegal for a corporate horse of a different religious color to exempt vaccination from its employee healthcare coverage, or say, force its female employees to use birth control or the morning-after pill to prevent pregnancy on account of Biblical scripture (converted to personal religious preference) alluding to the non-productive work output of your average pregnant woman.
It occurs to me that providing paid maternity leave to women is another liberal idea which kicked conservatives in the crotch as they stood astride history and yelled “Stop!”
And now we have the audacity to demand paid paternity leave to fathers, since they forgot to wear the condoms we provided through our health insurance schemes.
Yes, yes, straw men, but America is the place where straw men are provided access to the slipperiest legal slopes these a days.
When I convert to Hinduism and open my Hindu pharmacy handing out free birth control to all comers (puns are slippery slopes too), I hope no one minds (to the extent of mandating that I not do so) that my religious preferences include allowing underfed cattle and monkeys throwing vegetables to range freely throughout the open-air store.
Can an employer drop the contraceptive coverage, and give the employees money instead?
How does that solve the Greens’ problem?
Pay for insurance that covers birth control, or provide extra compensation to make up for the missing coverage.
Either way they’re “funding” the purchase of birth control.
They’d actually be better off that way, as they could spend it on something else if they didn’t want the contraceptives.
I might be wrong, but I doubt we’re talking about a one-for-one swap of dollars here. The amount of money in anyone’s premium used to fund birth control coverage is likely not enough for that person to go buy birth control.
It might buy them a cup of coffee, maybe not even that.
But this seems the exact sort of reasonable accommodation the RFRA normally would require.
This begs the very important question of whether, and in what way, a corporation can be said to “exercise religion”.
If you can explain how Hobby Lobby has a religious faith, and exercises that faith, your point might hold more weight.
My view of ‘corporate’ rights is colored by the realization that virtually everything in this country is done through corporations today, and this is not by accident. The legal system essentially forces the use of some kind of corporation if you want to do anything larger than a lemonade stand.
This is an interesting point, but elides the fact that “essentially forces the use of some kind of corporation” amounts to “provides legal protection from personal liability”. Among other things.
Corporations are an attractive form because they offer useful benefits. Tax exemption, protection from liability, etc. Nobody is forced to do anything via the corporate form, they do so because it is to their advantage to do so.
Can the government craft a legal system that forces the use of corporations, and then declare that you lose your civil liberties for anything done through a corporation?
NOBODY LOSES AN OUNCE OF CIVIL LIBERTIES BY VIRTUE OF PARTICIPATING IN A CORPORATION.
What is true is that all of the civil liberties you enjoy as a natural person do not automatically transfer to any and every corporation you happen to participate in.
Corporations do not equate to the natural persons that participate in them. That is their reason for existing. They exist to provide a legal entity that can engage in certain activities as a proxy for the folks who participate in them, but which is, deliberately and by design, legally distinct from them.
As far as I can tell, there is no activity that is pursued via a corporate form that could not also be pursued by a private person or any combination of private persons. The legal eagles among us will surely school me on this if I am wrong.
All that folks would need to do in order to do whatever they like, without the use of the corporate form, would be to give up the benefits that come from using the corporate form.
Also, IMO navarro’s comments here are precisely on the money, and I would also be interested in a response(s) to the questions he raises in his 6:38.
“Hobby Lobby offers, however, to pay employees who want contraception a higher salary.”
Ok, you still don’t get it. That would still, from Hobby Lobby’s standpoint, involve complicity, perhaps more than if they just bought the insurance. No, they’d have to pay ALL the employees enough to buy the contraceptives. Then it would be entirely the employee’s decision to spend some of their own money on contraceptives.
“If you’re telling me you don’t need insurance to go to a doctor and get a prescription drug, well, sure, you don’t need insurance for that. You just need enormous amounts of cash.”
Not actually that enormous, (It’s reached the point where dealing with insurance companies is such a hassle for doctors, that some offer a substantial discount for cash customers!)but Hobby Lobby wasn’t objecting to insurance that covered going to the doctor, just insurance that covered certain limited forms of contraception. So the only part they’d have to pay for on the side was the cost of the prescription, not the doctor’s visit.
To be clear, while I have a vague recollection of such an offer, I can’t find any evidence of it. So I’m perfectly willing to admit my recollection is probably faulty. But I still ask, wouldn’t such an accommodation be reasonable? And if not, why?
Nothing unique about progressives as regards imposing their view of what’s good and useful upon the rest of the world.
Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group’s principles or beliefs?
Off the top of my head, I can’t think of an example that answers the quite specific question you ask. I’ll look around, I’m sure they exist.
I could, however, provide volumes of examples of my own assertion.
Last but not least, you are (again) conflating the Greens with Hobby Lobby. Hobby Lobby HAS NO PRINCIPLES AND BELIEFS to be violated.
The Greens are not being asked to pay for anything, Hobby Lobby is. The money in question is not the Greens’, it’s Hobby Lobby’s. It doesn’t become the Greens until they either sell the company, or until it is returned as profit from their operations.
It isn’t profit until all the bills are paid, including compensating the employees.
If you want to do business as a corporation, you have to play by the rules that govern corporations. If you don’t want to play by those rules, you have to forgo the very significant benefits that come from operating as a corporation.
This isn’t punishment, or some weird oppressive yoke placed by The Socialist Overlords on Worthy Entrepreneurs, it’s government and the law regulating public life to balance the interests of all of the stakeholders involved.
There’s nothing progressive or conservative or capitalist or socialist or what-have-you about it, it’s how polities function.
The Greens (and apparently you) don’t like certain of the rules involved. Quite a number of others no doubt suit you quite well. The same is true of every other person who engages in business.
It’s not a questions of anyone being asked to “get over themselves”, it’s basic freaking civics.
No, they’d have to pay ALL the employees enough to buy the contraceptives. Then it would be entirely the employee’s decision to spend some of their own money on contraceptives.
Other than Hobby Lobby having to pay out a hell of a lot more in compensation, I don’t see the difference here.
How does contributing to a health insurance plan that covers certain kinds of contraception compromise the Greens’ beliefs, but paying employees extra to make up for the lack of birth control coverage not?
In both cases THE DECISION TO USE THE PILL is made by the employee. In neither case is anyone compelled to use any form of birth control.
What’s magic about how wage compensation is used vs how insurance coverage is?
“No, they’d have to pay ALL the employees enough to buy the contraceptives.”
As I explained, and as Russell re-explained, this sounds economically unworkable. Which is why I asked if this offer actually exists.
“But I still ask, wouldn’t such an accommodation be reasonable? And if not, why?”
Don’t know, maybe it would be, maybe not, depends on a ton of things about insurance markets I don’t know …
But I don’t see the point in debating it if no one is offering to do it.
“”Hobby Lobby HAS NO PRINCIPLES AND BELIEFS to be violated.”
Neither does my car, for that matter. Could the government bar it from driving to church on Sunday, without violating my liberties? Cars, corporations, both are tools for people.
I think the ‘liberal’ view of basic freaking civics, is that you’re entitled to order people around, and if anybody doesn’t like it, move to a monastery. (With the, “Until we shut down the monasteries.” being left unsaid.) Or maybe Somalia.”
Basically, it’s your world, we just live in it.
In both cases THE DECISION TO USE THE PILL is made by the employee. In neither case is anyone compelled to use any form of birth control.
Which seems to imply that birth control shouldn’t be covered by insurance in the first place.
“Which seems to imply that birth control shouldn’t be covered by insurance in the first place.”
“Shouldn’t be covered”? Why not?
Neither does my car, for that matter.
Your car is not empowered to own, buy and sell property, to enter into contracts, to engage in commerce, or any of the 1,000,000 other things that Hobby Lobby is empowered to do, as a legal entity and actor.
So, none of the rest of us are affected by, or have much of an interest in, you car.
Basically, it’s your world, we just live in it.
As mentioned to McK, nothing special about me, or “us”. You, and “you”, have your own bag of preferences that you’d be equally happy for the rest of “us” to have to live with.
So, no tears please.
Which seems to imply that birth control shouldn’t be covered by insurance in the first place.
Actually, no, it doesn’t.
If it bugs you that you pay an insurance premium and somebody, somewhere, who is insured by the same company makes use of their coverage in a way you don’t like, then don’t buy insurance.
If you don’t want to take the pill, don’t take the pill. Nobody will make you.
I though the purpose of insurance was to cover unexpected medical cost.
No, the purpose of insurance is to cover anything the glorious leader thinks it should cover. If the glorious leader is a Democrat. Otherwise it’s to cover unexpected medical costs.
“No, the purpose of insurance is to cover anything the glorious leader thinks it should cover. If the glorious leader is a Democrat. Otherwise it’s to cover unexpected medical costs.
I thought the purpose of insurance is to NOT cover expected pre-existing medical costs. If the glorious leader is a Republican. Otherwise it’s to cover only the medical costs the glorious leaders of insurance companies decide should be covered.
“Otherwise it’s to cover unexpected medical costs.”
How are we defining “unexpected”? You don’t expect your kid to be a type 1 diabetic, but once she’s diagnosed, you expect to pay for her treatment.
Essentially the purpose of insurance is to take a $1000 expense with probability of 0.1, and turn it into a predictable expense of $100. That’s all.
“Essentially the purpose of insurance is to take a $1000 expense with probability of 0.1, and turn it into a predictable expense of $100. That’s all.”
I repeat, how are you defining unexpected? There’s insurance for many elective things (e.g. Viagra), so I’m not sure how oral contraception is different.
In a more rational world, expected and elective, along with the relatively inexpensive unexpected medical cost would be paid for from a medical savings account instead of insurance.
“In a more rational world, expected and elective, along with the relatively inexpensive unexpected medical cost would be paid for from a medical savings account instead of insurance.”
So what?
Navarro:
Your questions have largely gone unanswered, but I doubt I’m the target. I’ll give it a shot from my preceptive, which I doubt is shared by many here.
“is employment based health insurance a benefit of employment or not?”
I would rather it isn’t, but here we are.
“if it is then how can the employer legally forbid its employees from using their benefits to pay for legal activities?”
They can’t. I don’t think anybody made that argument, but I could be wrong.
“can an employer forbid employees’ purchase of contraceptives with the pay employees receive?”
No, they can’t. Again, I don’t think anybody made that argument, but I could be wrong.
“if not, then why can the employer forbid coverage of contraceptives as part of their health insurance benefit?”
I think the sticky wicket here is how people are approaching the problem. You seem to be looking at it as they buy into insurance, with insurance being useful for covering anything. I think many conservatives here and elsewhere are looking at it in terms of insurance has different coverage levels, therefore, insurance is not identical to insurance with contraception coverage. The distinction being paying for a plan that can be used to get free contraception is a more direct enablement (if that’s a word, which its not) of contraception than providing wages that can be spent on anything, including contraception.
However, there is an executive action that declares corporations (and sole props, I believe) MUST provide insurance with contraceptive coverage. Contraception, I think we can all agree, is something that is both beneficial to society and also something that conflicts with peoples religious views.
What hobby lobby is asking to do is to not comply with the mandate to provide contraception through a health plan. Not forbid their employees using their wages to purchase contraception, or to use contraception.
You may not see the moral distinction between purchasing insurance through a plan and knowing your employees use their wages for contraception, but apparently the board of hobby lobby does. I don’t really either, but I’m loathe to tell people their morals when they seem to have an opinion on them.
So, given case history that suggests corporations do have some first amendment rights (something that many here disagree with), what we’re left with balancing is their limited 1st amendment rights with compelling state interest.
And bluntly, I can’t imagine something I could care less about. For two reasons:
1) Contraception is readily available, for free, at planned parenthood. Prescription contraception isn’t that expensive, I’ve paid for it out of pocket since I was below the poverty line. I don’t see hobby lobby employees suffering tremendously if their insurance doesn’t cover it.
2) As I said above, I don’t find hobby lobby’s moral objection to purchasing insurance that includes contraception that compelling.
Result: Whatever happens, whatever narrow piece of law and case history this gets decided on, I really couldn’t care less. If I had to decide the case, I’d probably side with hobby lobby or suggest the compromise that Brett imagined, just because in general I don’t like deciding what’s moral and if someone is willing to work out a compromise, super. I fully get other people that would side the other way, contraception is important and should be available.
“is there anyone here arguing that hobby lobby can legally prevent its employees from paying for contraceptives with their pay?”
Again, no, I don’t think anybody made that argument.
“if health insurance is different from any other benefit of employment then in what way is it different and why?”
I think what makes this case different is that the type of insurance (covering contraception) is being specified. In general, people get paid in dollars which they can use however they want and prior to the ACA health insurance was provided by some employers, with the type of the insurance (HMO, PPO, dental, vision, coverage levels, etc etc) being worked by the employer or sometimes with the employee/union. Which meant if an employer wanted to, say, buy into a group plan that didn’t cover contraception, they would be free to so.
Altogether, this is one more reason why I think insurance should be separate from employment.
While I doubt I speak for the “conservatives” of the group, at least you have some answer from someone with a different perspective.
Now, in return, I’d be very interested to hear a response to my questions at 9:57 last night, which I think get to the point on “do corporations have rights?” and the associated “should they have rights?”
Julian:
“”Well, can you think of an example where a conservative executive passed a rule that then requires individuals or organizations to perform a specific act that is expressly contrary to that group’s principles or beliefs? I can’t”
What an oddly specific request. Why don’t you care if the executive merely enforced such a rule? But I’ll oblige you:
Eisenhower enforcing integration in Little Rock. (I eagerly await this rousing game of He’s No True Conservative).
And, in the category of enforcing such rules, George W. Bush keeping Don’t Ask Don’t Tell in place.”
I think those are good examples, but I would point out that Eisenhower was enforcing a ruling of the Supreme Court…in other words, he was enforcing the current law of the land. I think that is probably a little distinct from an executive agency determining that contraception must be part of insurance plans.
Yes, I recognize that the ACA gives them the legal authority to do so, I’m just pointing out a distinction between using the executive authority to compel people to follow the law and creating regulations.
I think DADT is a better example, as its a policy which was enacted in support of a law banning homosexuals from serving in the military (similar to the HHS policy being enforced under the ACA). Of course, the law, and the DADT policy, was staggeringly stupid, and I’m glad we’re through with them.
I’d also be glad to be through with the ACA and the contraceptive mandate, so it’s an interesting parallel. 😛
… compelling state interest.
In all too many cases, “compelling state interest” has come to mean, “Any warm, fuzzy idea we like.”
In an ACLU email soliciting protest messages to Hobby Lobby’s CEO, they’re saying, “He’s[David Green] trying to impose his personal religious beliefs on Hobby Lobby’s 13,000 employees by blocking their access to contraception.”
I guess the ACLU is relying on its First Amendment right to spin the truth.
i appreciate the response from a different perspective, although in many ways our perspectives seem much more similar than either of our points of view are to mckinneytexas who has been the actual target of my questioning. if the objections to the minimum package of coverages required for insurance plans to qualify under the law had been stated in those terms–i.e. objections to the minimum requirements for a plan to qualify– i would find this overall discussion more sensible but it also wouldn’t have the emotional appeal of arguing about the denial of 1st amendment rights.
as for the rights of corporations and whether they should have rights, although i have to this point taken no position on that issue, i would agree that a corporation has the right to conduct all of its legal business under the charter which created it. beyond that i have a hard time buying into the notion that corporations are truly entitled to all the civil rights accorded to actual persons under the constitution. despite the current trend on the high court, it is well established law that corporations do not hold the 5th amendment right against self-incrimination and though the pendulum has swung heavily in the direction of treating corporations as persons i feel it will at least begin to swing back within my lifetime unless the influence of corporations results in the abrogation of the constitution before then. to reiterate, i believe a corporation has the right to engage in its legal business for the benefit of its stockholders and the society which allows it to exist at all.
What an oddly specific request.
That was McK, not Julian, in a response to my assertion that conservatives have their own collection of preferences that they would like the rest of us to have to live with, whether we like it or not.
The “oddly specific” nature of the request was, presumably, to offer an example that was an exact analogy to the case at hand.
The specific act that the Greens has been required of the Greens is to comply, as regards the operations of a company they own, with the requirement that any health insurance offered as part of employee compensation cover birth control products and procedures they object to, on religious grounds.
They have not been asked to practice birth control in any form. They have not been asked to personally support birth control in any way shape or form. They have not been required to provide health insurance as a benefit, if their conscience was sufficiently aggrieved they could elect to not do so.
Health insurance policies under the ACA must include coverage for birth control. If the Greens want to offer health insurance to their employees, those policies must include coverage for birth control.
Basically, what the Greens object to is that money that is under their control, through their ownership of Hobby Lobby, is going to be spent on some specific forms of birth control that they don’t like.
To address McK’s question, if you need me to enumerate all of the things that I am required, by force of law or executive fiat, to contribute to that I find morally objectionable if not repugnant, we will be here for days. It’s a very, very, very long list.
And many of those things flow from conservative policy preferences.
You all, by whom I mean conservatives, have your own vision of what the world should be, and it doesn’t look like mine. And, you would be more than happy for me to be required to live in it, if you could find a way to make that happen.
“Health insurance policies under the ACA must include coverage for birth control.”
Health insurance policies under Administration regulations must include coverage for birth control. The ACA itself includes no such requirement. Indeed, it is extremely unlikely it would have passed if it had, the mandate being so controversial, and the ACA barely passing even without it.
In his world, guns are a good thing and there will be no restrictions on them and anyone who disagrees can just learn to live with them.
see how easy that was?
don’t like it? win some elections; that’s how the country works.
“In his world, guns are a good thing and there will be no restrictions on them”
Oh, come on: To make for a good analogy, a Republican administration would have to promulgate, in the name of a crime control law, a mandate that employers provide their employees with firearms. Not just lift restrictions.
I mean, 13 year old girls can get Plan B without telling their parents, do you think contraceptives are anywhere NEAR as restricted as guns?
how many people did plan B kill last year?
guns kill people. that’s their primary purpose.
plan B prevents unwanted pregnancies, which is a benefit to everyone.
but we have to live with guns because “conservatives” say so. tens of thousands dead every year. and we get to, if we’re lucky, live with it.
requiring that our fncked up insurance system make a safe drug available to whoever needs it: a monstrous imposition on the freedom of everyone!
navarro:
” if the objections to the minimum package of coverages required for insurance plans to qualify under the law had been stated in those terms–i.e. objections to the minimum requirements for a plan to qualify– i would find this overall discussion more sensible but it also wouldn’t have the emotional appeal of arguing about the denial of 1st amendment rights. ”
I think the problem is both those aspects are convolved. I think, and I wouldn’t speak for McK or Brett, but much of the objection is that the necessity of this requirement doesn’t compel ignoring 1st amendment protections, even if they are limited in the context of corporations.
“as for the rights of corporations and whether they should have rights, although i have to this point taken no position on that issue”
I appreciate the response, and I wasn’t trying to call you out. I apologize if it came across that way.
“right to conduct all of its legal business under the charter which created it. beyond that i have a hard time buying into the notion that corporations are truly entitled to all the civil rights accorded to actual persons under the constitution”
What about corporate news organizations? Can they be mandated or prohibited from certain speech in a constitutional way?
“despite the current trend on the high court”
As I pointed out, at least some of those protections have case history going back at least to the 60s. Maybe that is part of the “current trend” but seems like a longer trend to me.
“it is well established law that corporations do not hold the 5th amendment right against self-incrimination”
That’s interesting, especially considering that 1st amendment protections have been applied, albeit in a limited capacity. Do you know case law for that? A central issue here is what constitutional rights corporations have, and to what extent. It’s certainly an interesting question, and I appreciate you engaging on it.
McK:
I find it rather incredible that you unswervingly insist that it is impossible to make a distinction between freedom of speech for Statutory-Americans and freedom of the press. The Constitution, and to my understanding, case law, view these to be distinct, albeit related, rights. Admittedly, the Constitution makes no pronouncements whatever regarding Statutory-Americans, so that would make the first part of that somewhat difficult. However, it does somewhat underscore the myopic ridiculousness of your continued insinuations that the left is a seething nest of meddling busybodies and unprincipled legal innovators, while the stalwart rightwing defenders of poor, persecuted Statutory-Americans are staunch originalists trying to maintain the integrity of the Bill of Rights against insidious – albeit “good intentioned” – changes.
russell:
“What an oddly specific request. That was McK, not Julian”
I was quoting Julian (9:44).
Thanks for the very good summary of facts in the case.
“Basically, what the Greens object to is that money that is under their control, through their ownership of Hobby Lobby, is going to be spent on some specific forms of birth control that they don’t like.”
Indeed. That is pretty much sums it up.
“To address McK’s question, if you need me to enumerate all of the things that I am required, by force of law or executive fiat, to contribute to that I find morally objectionable if not repugnant, we will be here for days. It’s a very, very, very long list.”
That’s great. Like I said initially, that’s basically what law is. I think McK’s question was specific to executive fiat. I don’t really need to hear them, unless you would find an example cathartic. Trust me, I’m familiar with the concept of law restricting individual rights.
And while an interesting discussion, the more relevant point is balancing interests. There is an interest to preserve liberty (to whatever extent its applied to corporations) and an interest to provide for the general welfare.
It’s how to balance these concerns that I think people disagree on, not that they must occasionally be balanced.
“You all, by whom I mean conservatives, have your own vision of what the world should be, and it doesn’t look like mine. And, you would be more than happy for me to be required to live in it, if you could find a way to make that happen.”
Russell, I want to live in a world where the government and large corporations don’t have much power over my life. I’m sorry that doesn’t agree with your world view, and you’re right, I’d rather the US was that world rather than your world.
But the upshot of this is that we are forced to discuss which world we’d like to live in with each other, and hopefully come to better understanding of each other’s sides.
NomVide:
“I find it rather incredible that you unswervingly insist that it is impossible to make a distinction between freedom of speech for Statutory-Americans and freedom of the press.”
You were addressing McK, but I’ll bite. I assume by statutory-americans you mean corporations?
“Congress shall make no law 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.”
I’ll admit that speech and press are in separate clauses, but I would also point out that in neither of those clauses, the prohibition against abridging speech or press are not specifically applied to the people.
Do I think you could fashion a set of laws which distinguished from advertising and journalism? Yes.
Do I think a society could function without freedom of speech for corporations? Yes.
Do I think that the protections for corporations should be as high as natural persons? No.
Do I think they should be pretty high? Yes.
Do I think the constitution does provide those protections? Yes. I understand you disagree, but Supreme Courts have agreed with that going back decades, so I hardly think the concept is ridiculous, or recent.
Do I think, regardless of the constitution, whether restricting freedom of speech of corporations is a good thing? Not really. I think there needs to be very, very compelling needs before there is any restriction on any speech. Because I worry that if it was easy to restrict speech in any form, there is an opening to restrict other forms of speech. You may look at the calculus differently, that’s fine.
I have no stance on whether or not “the left” is composed of busybodies. Personally, I think most people are busybodies. So, there we are.
Again, you were addressing McK, and I hope weighing isn’t disruptive.
*weighing in
Well, his phrasing called back to the last time ObWi squabbled about corporate personhood (the focus was specifically on speech that time around) moreso than the current discussion. McK was fairly emphatic that time around in asserting that freedom of the press for Uterine-Americans was entirely inseparable – if not outright indistinguishable – from freedom of speech for Statutory-Americans. I don’t disagree with you that it is not clearly desirable for us to rashly restrict free speech by corporations as currently conceived (though at the same time I find the notion that spending money is, and should be, considered speech to be absurd, but that’s a different – albeit related – subject), but McK has been rather absolutist on this subject, and at the same time rather broadly and righteously judgmental of those who disagree.
I wholeheartedly agree that busybodies are found on all points of the political spectrum, and am cynically amused by any who might claim otherwise (or even that they’re not essentially evenly distributed).
Statutory-Americans may include Franklin D Roosevelt, Barry Goldwater, George Romney, John McCain, Ted Cruz…
One side point though:
I’ll admit that speech and press are in separate clauses, but I would also point out that in neither of those clauses, the prohibition against abridging speech or press are not specifically applied to the people.
This is actually not significant. That rights (in this case, “freedom[s]”) are not specifically granted to “people” does not imply that they are granted to things that are not people, as the document is construed to be only discussing those entities which have rights. Hence why it is meaningful that US case law determined that corporations are people. If the Free Speech Clause applies to corporations as well as natural persons, it’s not because the First Amendment was overly vague. It’s because the courts have recognized them to be persons since at least 1819.
Statutory-Americans may include Franklin D Roosevelt, Barry Goldwater, George Romney, John McCain, Ted Cruz…
No, no, no. Those are Utero-Statutory-Americans. Pfffft. Rookie mistake, not hyphenating enough.
“If the Free Speech Clause applies to corporations as well as natural persons, it’s not because the First Amendment was overly vague. It’s because the courts have recognized them to be persons since at least 1819.”
NomVide, not disagreeing but hoping for a little more. Can you point me towards the 1819 decision?
Personally, I don’t really see the distinction between it applying to people, which includes corporations are, and apply to people and corporations.
Not trying to be combative here, and fully recognizing that a lot of court decisions rest on extremely specific word choices, just curious to learn more.
“McK was fairly emphatic that time around in asserting that freedom of the press for Uterine-Americans was entirely inseparable – if not outright indistinguishable – from freedom of speech for Statutory-Americans.”
NomVide, I’m probably fairly close to agreeing with McK on that point. Wouldn’t say we speak for each other, obviously, but I do think freedom of speech is (or should be) near absolute.
I understand the distinction between a corporation and a person. But its not just that line we need to draw. There are nonprofit corporations that engage in political speech, and I think that’s also important to protect. Well, we draw a line between profit and non profit. Well, what about a for profit newspaper? Well, that’s important too. So, for profit corporations that aren’t journalism. What about a movie studio? Can we say they can’t make a movie critical of the administration, or past administrations, or a purely fictitious one about a future administration? Well, ok, maybe we draw another line…and so on and so forth.
And I’m sure you, or I, or anyone, could draw a neat box around speech (or speakers) not worth protecting in our own views. But supreme to that, for me anyway, is that if we infringe on it in any way but the most limited, for the most compelling reasons, I fear we lose some ability to protect more important forms of speech.
So I draw the lines way far out there.
Now, you might view all that speech by corporations as worth protecting, but disagree on what protects it. I think the constitution does (or should). Maybe you disagree, and think for corporations those rights should be granted specifically by statue.
Again, not trying to put words in your, or anyones, mouth. Just trying to explain my understanding of your position. If I’m wrong, please, enlighten me. That’s why I’m here.
Unfortunately for both of us, I was not being cryptic.
Unless there was more to your comment than I could hope to divine unaided, it was completely irrelevant to the discussion, given that the contraceptive mandate has been implemented to the point that parties are able to legally challenge it. But I thought I should ask in case I was missing anything. Next time I’ll be sure not to bother.
…contraceptive mandate…
There’s the problem. Women would absolutely not need any contraceptives at all if they would just avoid man dates. Perhaps, until they are ready to have a baby, they should just stick to woman dates.
And I screwed up the tag.
Excellent. But not bothering was pretty much where you started from.
Can you point me towards the 1819 decision?
1819 is the date of Dartmouth v Woodward, which is the first SCOTUS case in which corporations were recognized as private parties which could enter into contracts.
If you’re interested in the whole corporate personhood thing, the other red letter date you should make yourself familiar with is 1886, the date of Santa Clara County vs. Southern Pacific Railroad, which is cited as the precedent for corporations being protected by the 14th Amendment.
The corporate personhood wiki is a not-bad primer.
My personal view is that corporations have no inherent right to any of the protections of the Constitution, and that those rights belong only to natural human persons. There is no reading of the actual text of the Constitution that I can imagine that would lead me to any other conclusion.
Corporations are legal *persons*. They are not *people*. They are creatures of law, not nature, and therefore deserve no god-given rights of any kind. We are their creators, and they are endowed with only those privileges that we wish to grant them.
To me, saying that “a corporation” has rights is more or less like saying a robot has rights, or a washing machine has rights, or my mortgage has rights.
That’s a fairly extreme point of view in this country at this time, which bothers me not at all.
The most compelling argument against my point of view is (a) in the area of freedom of press, because most of the actual institutions that comprise the press are corporations, and (b) non-profit advocacy groups, which actually are groups of people banding together to engage in protected activities.
My comment on those, respectively are:
We already protect other constitutional rights which involve instruments that are owned and operated by corporations based on the right being held by individuals, not the corporation.
So, the cops and feds are supposed to get a warrant before looking at your email or listening to your phone, not because your ISP or the phone company is protected, but because YOU are.
All of that is horsesh*t at this point, not because of the question of who owns the right, but because the feds have decided they can do whatever the f*** they want. But I digress.
Regarding advocacy groups, IMO it makes sense to recognize groups of natural human beings acting in association to engage in protected activities like speech, political advocacy, etc., and corporations organized to engage in commerce. In fact, we already do this under the existing law.
It seems blatantly obvious to me, apparently because of my super-decoder-ring constitution-reading powers, that groups of people – natural human people – associating for purposes of engaging specifically in protected activities should retain those protections, whereas corporations formed for purposes of buying and selling stuff should not.
Most folks who’ve been here for a while have already paid their dues listening to me go on about corporate personhood, so I won’t belabor it further. I’m including this comment for thompson’s sake.
It’s an interesting topic, and an important one right now, because the resources that corporations can bring to bear on almost any matter of public interest utterly beggar those that virtually any natural person can.
That distorts the governance of this country, because money packs a lot of juice. IMO the current understanding of corporate personhood is the single greatest threat to the sovereignty of citizens, which is to say, the bedrock principle of American governnance.
YMMV, and probably does. C’est la vie.
Last but not least, sorry to add to the italicized comment stream, but I don’t know the magic to turn them off.
the 1970 or 71 case u.s. vs kordel held that the protection from self incrimination was restricted to “natural persons.” a more recent case regarding corporations and the 5th amendment was braswell v. united states a 1988 case in which the court ruled that even a closely-held corporation had no recourse to the 5th amendment protections against self-incrimination. rehnquist delivered the majority opinion in that case. interestingly enough, marshall, brennan, and scalia joined kennedy’s dissenting opinion.
russell:
Thanks for the response, and cases, and the wiki. I shall peruse.
Where we differ, other than our decoder rings, is probably how easy we think it is to draw the lines (frex between associations for political speech and commercial endeavors). I think it’s very hard, which makes me unwilling to engage in line drawing. I certainly don’t think you’re unreasonable for thinking its easy (or easier than I consider it, anyway).
Something you and I likely agree on is the enormous and negative role monied interests can play in our political system.
However, I’m very skeptical that restricting speech of corporations solves the problem.
If we say corporations can’t do it directly, they’ll form general welfare groups and PACs to do it for them.
We say they can’t do that, the CEO of the company will write a fat check to the PAC himself and the board will give him a raise.
Or they will form PACs and “encourage” their employees to contribute.
We say they can’t advertise politically, they’ll form a subsidiary that owns a newspaper. Or a TV channel. Or whatever. Or media company A will have a board composed mostly of commercial company B’s directors.
It’s whack-a-mole, and I have no depths to my belief that someone with money and power will find a way around all lines we draw. Indeed, what I worry about is some lines we draw will really only serve to disenfranchise the poor and powerless. The rich and influential…they will just find a way around it. Or get caught and eat the fine.
To be clear, that’s not me saying there is nothing that can be done. I just don’t think that trying to fight the undue influence large corporations and the ultra-wealthy by restricting their expression is the way to do it, nor is it consistent with my values (which I’m not trying to foist on you, btw).
Anyway, sorry for the largely content-free ramble. Just trying to give you a baseline of how I approach that particular problem.
navarro:
Thanks for the case. I’ve got my reading to do!
“The most compelling argument against my point of view is (a) in the area of freedom of press, because most of the actual institutions that comprise the press are corporations”
Russell, could I impose on you to expand on your comments to this? You said something about warrants and private data, but honestly I kind of lost your point as it regards the corporate owned press. And I don’t want to do that, because I think it’s a very important point.
An appropriate quote from the majority in First National Bank of Boston v Bellotti.
“If a legislature may direct business corporations to “stick to business,” it also may limit other corporations – religious, charitable, or civic – to their respective “business” when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment.”
This is what I’m trying to get at with all my talk of “drawing lines” and I agree with the decision in this case.
In fairness, a line from Rehnquist’s dissent:
“The free flow of information is in no way diminished by the Commonwealth’s decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity.”
Also a reasonable view. Not my own, but reasonable.
Thanks, again, russell and navarro, for the information.
“Can they be mandated or prohibited from certain speech in a constitutional way?”
The administration argued they could, in Citizens United. IMO, one of the reasons the Court reached beyond the immediate case in deciding that, they figured THAT notion had to be stomped on with hob nailed boots.
I think it’s very hard, which makes me unwilling to engage in line drawing.
Most worthwhile things are hard.
It’s whack-a-mole
C’est la vie. Get yer game face on.
Russell, could I impose on you to expand on your comments to this?
Sure.
A common (and worthwhile) argument against my point of view is that, in the case of freedom of the press, the entities that actually are “the press” are almost all corporations.
So, major newspapers, magazines, broadcast media, all corporations.
And, in most of the case law establishing freedom of the press, the constitutional protection has been seen as belonging to the corporation. E.g., NYT vs Sullivan, where the NYT is a corporation.
So, the argument goes, as a practical matter, if freedom of the press is denied to corporations, it will be a dead letter, because in virtually all cases “the press” is actually some corporation or other.
It’s a good argument.
What I think is that it’s not necessary to allocate the right to the corporation in order to protect it.
The point of freedom of the press is not that you can physically print stuff on paper and distribute the paper. The point is that you can speak through a public channel. So, print, broadcast media, etc.
This is borne out by the fact that the subject of the case law on freedom of the press is *what was said*, not the medium through which it was expressed. I’m not aware of any freedom of the press case law where the issue was the right to physically create and distribute a printed object. It’s always about *what was said*.
It’s also borne out by the fact that freedom of speech and freedom of the press are grouped together in the same clause in the text of the 1st Amendment.
“What was said” is always the product of a natural human person. Corporations have no capability of speaking or writing, and no intelligence with which to think or articulate those thoughts.
Only natural humans do.
But, if the expression is protected, but the medium or channel is not, won’t it be possible to effectively stifle the expression by restricting the medium itself?
I say no, because we *already* have the precedent of protecting interference with the medium based on the rights of the natural human persons who use it.
So, the feds and the cops (used to) have to get a warrant to look at your email while it is at rest on an ISP’s server, or tap your phone, because *you* as a natural human person own the right to not have your private communications snooped on absent probably cause.
The protection doesn’t belong to the ISP, or the phone company, but to you, as a natural human.
Long explanation, my apologies. Hopefully it’s helpful.
IMO, one of the reasons the Court reached beyond the immediate case in deciding that, they figured THAT notion had to be stomped on with hob nailed boots.
It could also be that they’re whores for corporate power.
Just saying.
In either case, agreed, it was a reach far, far, far beyond the immediate case, and thus puts the often-expressed claims of judicial restraint and modesty to the lie.
Not the first time for these guys, won’t be the last.
Remember John Roberts sitting in front of the Senate, talking about how he was just going to be an umpire?
He lied. Quel surprise, I know. But, he lied.
trying this again, apologies if it shows up n-teen times.
I think it’s very hard, which makes me unwilling to engage in line drawing.
Most worthwhile things are hard.
It’s whack-a-mole
C’est la vie. Get yer game face on.
Russell, could I impose on you to expand on your comments to this?
Sure.
A common (and worthwhile) argument against my point of view is that, in the case of freedom of the press, the entities that actually are “the press” are almost all corporations.
So, major newspapers, magazines, broadcast media, all corporations.
And, in most of the case law establishing freedom of the press, the constitutional protection has been seen as belonging to the corporation. E.g., NYT vs Sullivan, where the NYT is a corporation.
So, the argument goes, as a practical matter, if freedom of the press is denied to corporations, it will be a dead letter, because in virtually all cases “the press” is actually some corporation or other.
It’s a good argument.
What I think is that it’s not necessary to allocate the right to the corporation in order to protect it.
The point of freedom of the press is not that you can physically print stuff on paper and distribute the paper. The point is that you can speak through a public channel. So, print, broadcast media, etc.
This is borne out by the fact that the subject of the case law on freedom of the press is *what was said*, not the medium through which it was expressed. I’m not aware of any freedom of the press case law where the issue was the right to physically create and distribute a printed object. It’s always about *what was said*.
It’s also borne out by the fact that freedom of speech and freedom of the press are grouped together in the same clause in the text of the 1st Amendment.
“What was said” is always the product of a natural human person. Corporations have no capability of speaking or writing, and no intelligence with which to think or articulate those thoughts.
Only natural humans do.
But, if the expression is protected, but the medium or channel is not, won’t it be possible to effectively stifle the expression by restricting the medium itself?
I say no, because we *already* have the precedent of protecting interference with the medium based on the rights of the natural human persons who use it.
So, the feds and the cops (used to) have to get a warrant to look at your email while it is at rest on an ISP’s server, or tap your phone, because *you* as a natural human person own the right to not have your private communications snooped on absent probably cause.
The protection doesn’t belong to the ISP, or the phone company, but to you, as a natural human.
Long explanation, my apologies. Hopefully it’s helpful.
IMO, one of the reasons the Court reached beyond the immediate case in deciding that, they figured THAT notion had to be stomped on with hob nailed boots.
It could also be that they’re whores for corporate power.
Just saying.
In either case, agreed, it was a reach far, far, far beyond the immediate case, and thus puts the often-expressed claims of judicial restraint and modesty to the lie.
Not the first time for these guys, won’t be the last.
Remember John Roberts sitting in front of the Senate, talking about how he was just going to be an umpire?
He lied. Quel surprise, I know. But, he lied.
” ….THAT notion had to be stomped on with hob nailed boots.”
Ah, yes, the jackboot. I’ve always wondered what John Roberts wore under those robes, besides nylons and garters clipped to his bullet-proof camisole, not that there is anything wrong with the latter.
Applied to a liberal notion, which we are advised several times upthread disallows all dissent, even in conversation.
At some point, there will be turnabout I suppose, when corporate dick is slapped from the bipartisan mouths of our government elites in all three branches.
The well-shod shall prevail.
“It could also be that they’re whores for corporate power.”
Nah, corporate power has reached it’s accommodation with the government, which is why it was a little outfit like Citizens United, and not CNN, before the Court: The big outfits find covertly being the State’s media pays just as well as being watchdogs, and results in a lot less hassles. That’s why you get this instead of this on the evening news.
I enjoyed the video from the cameras on the tips of the cruise missiles going through windows in Baghdad brought to us breathlessly by the evening news across the bias spectrum all those moments ago.
An uptick in employment isn’t quite as masturbatory for the jackbooted set.
I understand. It’s difficult to hail a little good news when jackbooted cheerleaders are rooting for the bad.
I’ve heard plenty about downticks in employment on all of the major media outlets, print and broadcast, including NPR and the New Yorker, which communistically report every month that employment is not what it should be at this point in an economic recovery.
Perhaps we require more austerity to keep unemployment high.
Let’s make sure we dress properly and bring out the good silver (the footwear was not visible, but I suspect the jackbooted were playing footsie underneath the table) like the English do as we pay obeisance to austerity:
http://www.businessinsider.com/picture-of-david-cameron-calling-for-austerity-2013-11
Mitt Romney’s handlers must have choreographed that policy statement.
russell:
A few things. First, thanks for the long form explanation. I can now connect the the dots in my head.
Second, I appreciate the exhortations to get my game face on and everything worth doing is hard (I would point out that doesn’t prove the converse of everything hard is worth doing). But to be clear:
By “hard” I mean that drawing boxes around freedom of speech to only restrict things we don’t like is basically impossible, and attempts to do so ultimately will result in worthwhile speech being quelled.
Not “hard” that I’m just especially lazy, and this seems like a big problem, so I’ll go have a beer instead.
Take that comment as lighthearted, I am neither offended or trying to offend.
To but it another way, I don’t think I, we, the government, the FCC, or any other person or collection of people is qualified to determine what’s worthwhile speech, and therefore we should not restrict speech except in the most dire of cases. Should anyone or anything have that power, it will eventually (and I imagine quite quickly) be used against liberty. Of course, the devil being where it is, I imagine we disagree on what “dire” is.
On top of not wanting to restrict speech in general, I also want to make sure that when we do, it will have the desired effect. If, observing a toxic effect on our democracy by companies buying large ads in support of some political view, I say corporations can’t weigh in on political issues, the small ones will have no ability to inform the public and the large ones will buy a cable channel. That isn’t the desired effect. You may envision a way to do achieve that effect, I do not. And it’s not entirely due to my extreme laziness.
“The point of freedom of the press is not that you can physically print stuff on paper and distribute the paper. The point is that you can speak through a public channel. So, print, broadcast media, etc.”
Agreed!
I agree the case law regularly turns on: “*what was said*, not the medium through which it was expressed.” as said in 1st Nat:
“The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual. ”
“”What was said” is always the product of a natural human person. Corporations have no capability of speaking or writing, and no intelligence with which to think or articulate those thoughts.”
In that case, what are we discussing? If they have no capacity for speech/expression, surely we can’t restrict it? Seriously, though, I think I see the ‘line’ you’re trying to draw (I have AT MOST one rhetorical device at a time), I don’t know that I agree it makes a meaningful distinction…either way, the expression is protected, right? That’s all I care about.
I think, perhaps, unless I’ve grossly misunderstood your point (I apologize if so, and please inform me) we’ve beat this particular horse to death.
Apparently a dead horse you are long familiar with beating, but I do appreciate you repeating yourself for my benefit.
By “hard” I mean that drawing boxes around freedom of speech to only restrict things we don’t like is basically impossible
We currently distinguish between corporations of all types, and assign different privileges and protections to them based on type.
So, some are tax-exempt, some can engage in political campaigning, etc.
I’m not sure I see why this is different.
attempts to do so ultimately will result in worthwhile speech being quelled.
I disagree with this, because it’s addressing the wrong issue.
The question is not which speech is worthwhile, the question is *whose speech is protected*.
If you are a natural person, you say any ridiculous crap you like, and I have no problem with it.
If you are a corporation created for the purpose of doing business, different story.
To but it another way, I don’t think I, we, the government, the FCC, or any other person or collection of people is qualified to determine what’s worthwhile speech, and therefore we should not restrict speech except in the most dire of cases.
Same reply as above. It’s nothing to do with which speech is good or bad, it’s to do with *who owns the inalienable right to speak*.
I don’t know that I agree it makes a meaningful distinction…either way, the expression is protected, right?
The difference in principle is that *corporations are not people*. I can make a robot that can utter sounds that are intelligible as human language, but it’s not a person, and so has no inherent right to “speak”, i.e., utter those sounds.
The pragmatic difference is the size of the resources that for-profit corporations (and various others, ex. unions etc) can bring to bear on the act of “speaking”.
Apparently a dead horse you are long familiar with beating, but I do appreciate you repeating yourself for my benefit.
No worries, I’m happy to discuss this issue until folks tell me to STFU. Probably long after that.
The big outfits find covertly being the State’s media pays just as well as being watchdogs, and results in a lot less hassles. That’s why you get this instead of this on the evening news.
I’d quibble about the direction of influence, but other than that I’m not sure I disagree much with this.
I think I should found my own religion. (Hey, what did L. Ron Hubbard have that I don’t?)
And then my theology will exempt me from any particular law that is inconvenient. Maybe speed limits. Mybe minimum wage laws. Maybe anti-discrimination laws.
Oh yeah! Income taxes, sales taxes, any taxes! It’s freedom of religion at its finest. What’s not to love.
And, since theologies evolve over time, I can add exemptions to new laws as they come along. This is going to be great.
“Hey, what did L. Ron Hubbard have that I don’t?”
No conscience, and a gift for writing bad SF? (Though I have to say his SF was “bad” in the same sense potato chips and dip are “bad”; Some of it could be quite entertaining.)
russell:
“The question is not which speech is worthwhile, the question is *whose speech is protected*.”
I guess I was confused when you said it ” It’s always about *what was said*.” which I took to mean its about what is said, not who is saying it.
That’s probably where we disagree. I think expression, regardless of the source, needs to be protected. Because the expression is the important thing, not the source.
“The pragmatic difference is the size of the resources that for-profit corporations (and various others, ex. unions etc) can bring to bear on the act of “speaking”.”
That is, I agree. And I think unions, and trade associations, and for-profit corporations often has something worthwhile to add. Sometimes they don’t. Sometimes they have something toxic to add. The point is I don’t want myself, or anybody, in the position of deciding what is “worthwhile”. As you say, YMMV.
“We currently distinguish between corporations of all types, and assign different privileges and protections to them based on type.
So, some are tax-exempt, some can engage in political campaigning, etc. I’m not sure I see why this is different.”
It’s different because the freedom of expression, press, and speech are in the constitution, and beyond that, I find them enormously beneficial to society. Even if it occasionally means speech that I don’t like gets broadcast at a loud volume.
Don’t construe my disagreement with lack of respect for your position. I can imagine a society where corporate speech is highly regulated and the streets aren’t running with blood. It’s not the society I want to live in, and I’ll continue to exercise my rights as a natural person to fight against it.
russell:
I released your comment from spam hell. You should be able to do this yourself. Email me if you want to know how.
Basically everyone on the email list should have the SuperUser password. If you don’t think that you do, email me.
wj:
“I think I should found my own religion. (Hey, what did L. Ron Hubbard have that I don’t?)
And then my theology will exempt me from any particular law that is inconvenient. Maybe speed limits. Mybe minimum wage laws. Maybe anti-discrimination laws.”
Point well taken. Balancing state interest and religious exercise is a very tough problem. In general, my understanding of current law is that religious exercise can only be burdened by a compelling state interest. Previous cases have ruled, for example, that income taxes being applied equally is a a compelling state interest.
I think another key consideration is how sincere someone is in their beliefs. If you came up with them on the spot, maybe not sincere. If you and fellow adherents have said the same thing for a long time, maybe you’re sincere.
It’s a hard problem, judging someone else’s sincere beliefs. I’d err on the side letting people define their own beliefs, absent a compelling state interest.
Another reason why I’d like the government to do as little as possible. We avoid these questions. It comes with the drawback of less compelling state interests being unaddressed. Of course, as with all things, the definition of “compelling” is subject to interpretation.
The New York Times Corporation hires people and produces speech. Hobby Lobby Corporation hires people and produces widgets. What they have in common is the hiring people bit.
Government comes along and imposes rules on hiring people, e.g. minimum wage laws, or a health insurance mandate. Subtle logicians, always able to make a connection between anything and anything else, view those laws as potential threats to both speech and widgets.
Make HL comply with a particular employment law, the subtle logicians argue, and you’re sliding down a slope that ends with stifling the NYT. Because the law applies to corporations, you see, and both HL and the NYT are corporations. And freedom of speech is in the same amendment as freedom of religion. And corporations are persons, and whatnot.
Suppose the NYT made a corporate policy: we will not hire people who own guns. It might be a business decision, based on cheaper group health insurance. Or it might be an editorial decision, based on the NYT corporation’s deeply held, 1st-Amendment-protected principles.
What would the subtle logicians have to say about THAT?
–TP
What would the subtle logicians have to say about THAT?
Okay but by me. But, then, I’m not a subtle logician.
That’s probably where we disagree. I think expression, regardless of the source, needs to be protected. Because the expression is the important thing, not the source.
Yes, we disagree.
What I’d like to emphasize here is that, when we talk about a corporation “speaking”, that is not literally the reality. The reality is that some collection of humans is speaking *using the corporations resources to do so*.
No “corporation” has ever spoken a word. People have spoken, using corporate resources.
What I’m looking for is for the actual human actors who are doing the speaking to be required to do so in their own name, so that we all know who the hell they are, and with their own resources.
If the board of Exxon wants to weigh in, they can do so, *as the members of the board of Exxon”, and with their own money, not Exxon’s.
If the directors of the SEIU want to weight in, they can do so, *as the directors of the SEIU*, and with their own money, not the SEIU’s
And if the members of a trade association want to weigh in, they can do so, *as the members of a trade association*, and with their own money, not the trade associations.
And, I’m fine with people pooling their resources and engaging in protected activities like speaking, publishing, lobbying, assembling, etc., under the corporate form, as long as the corporate form in which they do so is one dedicated to that purpose. And, whose membership was solely natural human persons, and whose funding came solely from natural human persons.
Nothing I’ve discussed deprives *any human being* of the ability to express anything they want to, in any way. All of the expression you could ever want would still be available.
It would just be required to be done openly, and with the speaker(s) own resources.
Meanwhile, if you have a minute, I have a question about this:
I want to live in a world where the government and large corporations don’t have much power over my life.
What are your thoughts about living in a world where the interests of the people who also live in that world have power over your life?
Is that something you’re open to?
If not, where the hell are you going to live?
If so, how do plan on negotiating your differences?
“If the board of Exxon wants to weigh in, they can do so, *as the members of the board of Exxon”, and with their own money, not Exxon'”
IOW, what you’re really trying to do is stop people from pooling their resources to get their common opinions heard.
I think there’s a bit of a bait and switch at work, whenever people start talking about whether corporations have 1st amendment rights. It’s always cast as restricting Archer Daniels Midland, but the approach always seems to encompass corporations which were formed exactly as a means to amplify speech. Citizens United, or the NRA. And the theory would always seem to extend to CBS or the NYT, even though any ambition in that direction gets denied.
But, whatever, there’s not really a lot of point about talking about the 1st amendment rights of corporations, and why they don’t have them, unless you’re of a mind to engage in censorship of some sort.
“What are your thoughts about living in a world where the interests of the people who also live in that world have power over your life?
Is that something you’re open to? If not, where the hell are you going to live? If so, how do plan on negotiating your differences?”
Russell, you can ask me a hundred times if I want to live in a society. The answer is yes, I do. You can ask me if I’m ok living in a society where people may disagree with me. The answer, again, is yes. I think I’ve been pretty consistent on that point.
We disagree, and I’ve think I’ve said multiple times I respect your, and others, opinions. Even when they disagree with my own. Not once have I said that every time congress votes a way I don’t like I’m going to leave, or I hate this nation, or to borrow your phrase from an earlier exchange we had…”start shooting”.
I’m actually quite content to advocate, and discuss, and vote, even if people don’t agree with me. I’m actually quite happy I’m not the grand emperor/dictator, forcing all to bend to my particular view of the world. Because that is a really crappy form of governance.
Do I recognize that compromises MUST be made? Yes.
Does that mean I’m obligated to agree with you WHEN and HOW they must be made? No.
Do I think representative democracy with minority protections and checks and balances is a pretty good way of making those compromises. Why yes, yes I do. Even if I don’t always agree with the result.
As I said, and you quoted “I want to live in a world where the government and large corporations don’t have much power over my life.”
But somehow, it seems you take that to mean I’m unwilling to live in a society that doesn’t 100% agree with me 100% of the time.
Which, if I may say, might be reading just a bit more into it than is actually stated.
I’m sure there are things you want for this society, for example a rollback of some SC decisions regarding corporate personhood. Does that mean you’re packing your bags to find a new country, because SC decisions haven’t gone your way recently? No, of course not. Or at least I hope not.
You’re going to vote, support like-minded organizations and candidates, and discuss politics with friends and strangers. In other words, you’ll keep contributing to the debate.
I don’t find that concept novel or confusing. Indeed, it seems central to any society of more than one person, as there are invariably going to be disagreements.
But you seem convinced that I’m one bad congressional decision from either moving to Somalia or engaging in armed revolt.
Honestly, I’m baffled.
IOW, what you’re really trying to do is stop people from pooling their resources to get their common opinions heard.
Horseshit.
the approach always seems to encompass corporations which were formed exactly as a means to amplify speech.
The careful reader will note that that is precisely 180 degrees from anything I’ve suggested.
By all means feel free to tilt away at the windmills in your head. Just don’t put words in my mouth.
But somehow, it seems you take that to mean I’m unwilling to live in a society that doesn’t 100% agree with me 100% of the time.
No, not at all.
When people espouse a position like you have done, it makes me curious about how it works in real life.
One of the basic functions of government, it seems to me, is to be the venue where people with different interests negotiate how they’re going to sort out their differences.
In order for that to work *at all*, everyone has to agree to submit to whatever agreements come out of that process.
So, if you don’t want to live in a world where (frex) government doesn’t have much power over your life, how does that work?
It’s sort of a simple question about the logistics of it, not a comment about any kind of intolerance on your part.
Sorry for any misunderstanding.
russell:
Rereading that post, I may have been a little harsh. But I seriously am confused.
Why does “not wanting large corporations and government to have much influence on my life” mean I am unwilling to live in a society?
Are good members of society supposed to WANT lots of government and corporate influence on their lives?
russell:
And to answer your content:
“What I’d like to emphasize here is that, when we talk about a corporation “speaking”, that is not literally the reality. The reality is that some collection of humans is speaking *using the corporations resources to do so*.”
Yeah, we agree. I just don’t want to ban that. I think its unconstitutional. I think the courts agree with me, and you don’t. I often don’t agree with case law. That’s also fine. Like I said previously, I don’t find the position unreasonable, its just not my own.
I would further agree that my view, that its unconstitutional, requires interpretation. And that another reasonable person (frex: you) could have a different interpretation.
I don’t think that interpretation is horrible, frex I also think the constitution also ensures a right to privacy, which is not stated in the constitution. It does, however, leave us open to disagreeing on the different interpretations.
I don’t think we will reach consensus on this. That doesn’t bother me, I’m glad you took the time to explain your views, and I find the entire thing very helpful in understanding where you and other like-minded people are coming from. Understanding being a cornerstone productive public debate.
“It would just be required to be done openly, and with the speaker(s) own resources.”
As one final note, I think anonymous speech is also important. Recognizing and trying to sidestep our disagreement on corporate speech and the additional concerns associated with anonymous corporate speech…I’m curious if you think it would be constitutional to ban anonymous speech for natural persons?
OK, I’ll try again.
It seems to me that, in a pluralistic society like the US, one of the functions of government is to be the venue where people with different interests sort out how they’re going to negotiate those differences.
If you’re with me so far, it also seems to me that, in order for that to work, we all have to agree to live with whatever compromises come out of that process.
So, in other words, unless the differences between different groups of people are fairly trivial in scope, we all are going to end up with government influencing a lot of stuff in our lives.
It’s not a matter of WANTING lots of government influence, or not, it’s just a pragmatic question of how we all get along.
It doesn’t have to be government, but if government isn’t going to play that role, than we have to find some other means of doing it.
So, if government is not going to have much influence in your life, how does it work?
If somebody wants to start a pig farm next door to you, and you’d rather they didn’t, how do you work it out?
Lather rinse and repeat for any of the 1,000,000 possible examples of conflicting interests between different folks living in the same society.
You may also find any of the various premises I’ve put forward here – scope of differences between people, role of government in sorting them out – to be faulty, please feel free to respond by addressing those as well, if you like.
Once again, this is really just a pragmatic, “how does that work” question, not a statement about any kind of intolerance on your part, or about good or bad citizens, or about what’s desirable.
I’m curious if you think it would be constitutional to ban anonymous speech for natural persons?
No, I don’t.
My comment about “knowing who the hell they were” was wrong-headed.
My belief is that the constitutional rights guaranteed to “the people” in the constitution belong to natural human persons, and no other entity.
My pragmatic concern is that natural human persons use the often quite considerable resources of corporations organized for purposes other than engaging in protected activities to advance their interests.
Equally often, as a sort of aside, it’s not their money in the first place, and the position they wish to advance does not reflect the opinions of all of the folks whose money it actually is. Just saying.
All of that said, I agree completely that it is desirable for people to be able to speak anonymously.
I just don’t want to ban that. I think its unconstitutional. I think the courts agree with me, and you don’t.
Yes, we simply disagree here. I do want to ban it, I don’t think it’s unconstitutional to do so. The opinion of the courts has been mixed over time, your point of view currently carries the day. I simply find that legal position faulty.
As always, disagreement is one of the tastier spices of life.
Pleasure conversing with you!
russell:
“It’s sort of a simple question about the logistics of it, not a comment about any kind of intolerance on your part. Sorry for any misunderstanding.”
Ah, I see. No offense was taken, I was just somewhat confused.
“In order for that to work *at all*, everyone has to agree to submit to whatever agreements come out of that process. So, if you don’t want to live in a world where (frex) government doesn’t have much power over your life, how does that work?”
I think it likely works the way your ideal works. We get together, debate, vote, and decide what “much” is. I didn’t say I wanted to live in an anarchy, after all.
I think the key word is “much”. Maybe it would make more sense if I said “undue” or some other word?
To the extent possible, I’d like to be able to do what I want, when I want. I’d also like that for other people. I understand that at times that will result in conflict, and peoples wants will conflict. In compelling cases I’m ok with the state having the power of deciding which wants are more important.
What is compelling and how to rectify the situation is subject to debate. Debates I don’t always win, and in those cases, I go along with the democracy, because generally I find the disagreements to be quite minor and reversible (if only people would listen to me!) compared to, I don’t know, armed revolt.
I guess I used “much” to emphasize my stance that these cases should be very compelling and the mechanisms to rectify should be minimal. Knowing full well that that places extra burden on myself and others to tolerate each others differences.
It’s a balancing act, and I’d rather have less state power, and less corporate power, than I imagine most of the population.
But I think the proper way for determining that balance is through public debate and elections.
“Pleasure conversing with you!”
Likewise. I’ve learned quite a bit about the subject and about my own position, as well as yours. I’ve definitely had to think carefully in my responses and reflect on my views…very challenging at times. But very, very important.
thompson: It’s a balancing act, and I’d rather have less state power, and less corporate power, than I imagine most of the population.
Your imagination is faulty. I say “most of the population” would LOVE to see “less state power, and less corporate power” — just as most people want to eat their cake and have it too.
Your imagination is also very lively. You seem to imagine that if only the state were less powerful, then The Invisible Hand or The Tooth Fairy or something would limit corporations’ power over your life.
The “balancing act” you speak of is real. It boils down to or, not and, when it comes to state power versus corporate power.
–TP
“If the board of Exxon wants to weigh in, they can do so, *as the members of the board of Exxon”, and with their own money, not Exxon'”
IOW, what you’re really trying to do is stop people from pooling their resources to get their common opinions heard.
Brett, how can you say this. Nobody is proposing keeping those board members from pooling their personal funds in an institution set up for that purpose to promote their opinions. But using the funds of a company of which they are board members, and which a different purpose is, arguably, a breach of their fiduciary responsability.
Rick Perry’s murderous religion, shared by many other jackbooted vermin governors, results in genocide:
http://www.alternet.org/i-watched-my-patients-die-treatable-diseases-because-they-were-poor?paging=off
Why don’t the Green’s devote some of their energies and their public influence to combating this home-grown American genocide of the fetuses they believe they are saving who then grow up to be treated like pieces of f*cking sh*t by the vermin, subhuman politicians they elect, like Rick Perry and Ted Cruz.
Compared to these murders, whether the Green’s employees have access to pharmaceutical birth control seems a trifle for the home hobbiest.
Hate to pick on Texas, but their political personalities draw fire. We have plenty of genocide-loving Republicans in Colorado aching to apply the same genocidal policies in the next election cycle.
Brett, how can you say this.
It’s a poser.
Hate to pick on Texas, but their political personalities draw fire.
Good barbeque, though, or so I’ve heard.
I live in MA, when it comes to political personalities I’m not in a position to throw stones.
From the Count’s cite:
Ted Cruz has argued that it is “much cheaper to provide emergency care than it is to expand Medicaid,”
I take it back, we don’t have anybody here who is quite that batsh** crazy.
serial poster strikes again:
I say “most of the population” would LOVE to see “less state power, and less corporate power” — just as most people want to eat their cake and have it too.
Yeah, that’s about how it looks to me, too. FWIW.
I’ve nothing against the people of Texas.
This Pope should visit.
http://www.ncregister.com/blog/mark-shea/the-thing-that-used-to-be-conservatism-puts-out-a-hit-on-francis/?nomobile=1
I suggest he retain the bullet-proof bubbled popemobile for his visit, because the good news is that he has very bad news for American conservatism, which is heavily armed.
More from Kevin Drum on Obamacare:
http://www.motherjones.com/kevin-drum
If the Green’s could get beyond their narcissistic fetish with pharmaceutical birth control (they will provide condom and diaphragm coverage, to their credit, and reportedly, although I can’t find a link, they pay a living wage above minimum wage demanded by talk show slave lords), perhaps they could tackle the gouging of the most vulnerable among us by the healthcare, um, community.
If they have time, away from their hobby horses.
russell:
It seems we were posting past each other for awhile (I have spotty internet at work, sorry).
But I think we’ve reached detente re: corporate speech? Or if not, let me know what’s still outstanding and I will try to address.
Tony:
“Your imagination is faulty.”
Undoubtedly. I have a PhD in engineering.
“Your imagination is also very lively.”
I am a diverse soul, aren’t I? And in 3 lines, no less.
“”less state power, and less corporate power” — just as most people want to eat their cake and have it too. ”
I don’t actually care for cake…I also never got that expression. What’s the point of having cake if you can’t eat it?
And bluntly, its far more complex than “corporations” vs. the “state”. It would pretty much have to be, since “corporations” are instruments of state law. And can be dissolved, by states not allowing them to exist.
That’s one epic battle that would resolve quite quickly.
The alternate view, albeit more complex, is that corporations are a very useful legal fiction OF THE STATE, and we’re left with how to properly regulate them for the benefit of society.
“You seem to imagine that if only the state were less powerful, then The Invisible Hand or The Tooth Fairy or something would limit corporations’ power over your life.”
I imagine nothing of the sort. And in case you are unclear: I IMAGINE NOTHING OF THE SORT. The tooth fairy doesn’t exist and the invisible hand in a rhetorical device.
***
I believe, in what is apparently a shocking and bizarre way, that state power is linked to corporate power.
I say ‘apparently’, because this thread has been about, among other things, the influence corporations have on the state. So I, with my “tooth fairy” addled mind, am confused why I can’t be concerned about the combined influence of corporations and the state.
Of course, I wouldn’t be as simple to assume “corporations” and the “state” act as one in all things. Why such a belief would be as ridiculous as thinking they act completely independently and contrary to each other.
Perhaps, oh perhaps, if we are lucky, there is a middle ground somewhere…in a non-binary world, where things can be slightly more complex than “good” or “bad”.
Like the real world. That would do the trick.
Maybe we have a very complex problem in front of us, where we wish to regulate the behavior of corporations, and are additionally cognizant of the fact that people, and corporations, with money and power will try to influence our politicians to use the power of the state to their own benefit.
This is a view apparently deserving of mocking, considering your invocation of the tooth fairy.
But a view I hold nonetheless.
Even in the face of people who (a) say corporations should be banned from influencing public discourse with their speech because they are too powerful.
and (b) mock the concept that corporate power and state power may be coupled. Indeed, they insist they are in opposition.
“The “balancing act” you speak of is real. It boils down to or, not and, when it comes to state power versus corporate power.”
The balancing act I speak of, as I hope I made clear above (and if I haven’t, please, ask me to clarify) is far more complex than two vague actors of the “state” and the “corporations” duking it out.
***
Corporations are a legal fiction, and I find them a useful one. And as they exist, I find their speech worthy of protection (as I find all speech worthy of protection).
But if this is an inexorable battle between the state and the corporations…why not simply ban corporations?
I agree, they are a legal fiction. Why not argue for their elimination?
I view them as useful, but not as constitutional necessities. If they truly are in an “or” with the state, perhaps they should go.
Personally, I think they are useful, but I agree that’s a matter of statute, not constitution. YMMV.
Russell:
“Yeah, that’s about how it looks to me, too. FWIW.”
Bluntly? It’s not worth that much.
“How it looks to” you is that a situation as complex as how far freedom of expression applies (admittedly a very complex topic) and the role corporations play in our society can be summed up as “have their cake and eat it too”…?
Seriously?
I take corruption very seriously. I think corporations and other moneyed interests are writing laws and pressing their interests with the executive and the congress. I just don’t think restricting expression is the way to solve it. You disagree. We’ve established this.
I think those tentacles run deep, and are twisty, and are so dug into our system its going to be hell to unwind them. And we disagree about how to do it.
But, no, it’s ok, because I just want cake and to consume it. WTF that means I don’t know.
But its a neat turn of phrase, so roll with it I guess.
And I’m sorry (to both Tony and Russell) if I’m a little amped up. But I won’t be dismissed by an invocation of the tooth fairy.
It’s insulting.
And Count?
I’m glad your back. I missed you.
I’m tempted to respond to your posts, but honestly I’m worked up and I probably would say something I regret.
Which I probably already have. So, I’d also say to russell and tony, I apologize, I lashed out, and I shouldn’t have.
So, should the banhammer find me, let me leave with this: I hope you enjoyed your travels as much as I enjoy your unique commentary on current events.
Some cakes – though certainly not all – are both tasty and pretty.
…which is why proponents of corporate power have a nasty habit of working to cause the state to hobble itself in ways that make corporate dissolution difficult or impossible. The epic battle would only be quick if the state realized that it had started before it ended.
False dilemma. This isn’t incompatible with the “other” view. Corporations are legal instruments defined by the state, but they are not of the state, they are of private capital. Which is what I believe Tony was getting at. If you reduce state “interference” to the point that you or anyone else can generally do whatever you want, it doesn’t matter if it’s state-defined corporate entities that sweep in and impose private interference in the great, open swathes of Freedom, or some less formal entity. There will be some collection of capital (perhaps liquid, perhaps invested in shotguns and canned goods) seeking to interfere with your freedom to the degree that there’s no state preventing them from doing so.
You certainly can. Indeed, I would hope that you are. I’m not sure why you see this as being incompatible with your interlocutors’ positions, though. Natural persons can use the state to limit the power of corporations to act, sure. And corporations (or their owners) can use the state to amplify the power of corporations. Indeed, this is entirely the reason why us DFH are so concerned with corporations being granted broad rights and privileges in addition to, or duplication of, those already possessed by the natural persons owning and/or comprising said corporations.
Again, if this is your POV, arguing-past-each-other is again occurring, because that’s exactly why pinko leftists like myself are unfond of broadly conceived corporate personhood. But none-the-less, arguing that you just want the state and corporations to a limited ability to “interfere” with your freedom to live as you want to live does appear to be a naive “have-your-cake” situation simply because it seems to be suggesting that people are not, per prior discussion, meddling busybodies. The state is generally the means by which the comprising body politic prevents individuals or groups of individuals from unduly interfering with each other, for some given value(s) of unduly. If you want minimal state interference, you’re inviting further freedom for corporate (or other private collective) interference to occur. It shouldn’t be a zero-sum game, such that limiting one increases the other. But natural persons being what they are, it seems hopelessly optimistic to assume it wouldn’t be zero-sum. Hence, again, you seem to want to have your cake (minimal organized collective interference in the freedom of action for persons, natural or otherwise) and eat it too (no exploitation would arise in the general absence of collective prevention of interference into the freedom of action of potential exploiters).
*general absence of collective interference
It’s really late, I’m really tired.
“Brett, how can you say this.”
I can say this, because I actually follow the efforts to restrict freedom of the press and of speech quite closely.
It’s not an accident the government’s lawyer in CU argued that the government could, yes, ban books.
It’s not an accident that the BCRA was promoted as going after for profit corporations, but was written to apply to groups like the NRA or ACLU, or, yes, Citizens United.
It’s not an accident that the definition of ‘corruption’ keeps expanding to encompass more and more normal campaign activities, that they keep finding more inventive ways to rationalize that any speech or publishing relating to a campaign and not by the candidates themselves is a disguised bribe.
You scratch a campaign ‘reformer’, you find a censor. That’s my considered opinion after following Hansen’s Election Law blog for years. The whole enterprise is, at it’s base, just a search for excuses to censor political speech.
Oh, and my take on why the CU decision was of such a scope is hardly idiosyncratic.
Justices Seem Skeptical of Scope of Campaign Law
I just don’t think restricting expression is the way to solve it. You disagree. We’ve established this.
Just to clarify, we haven’t established anything of the sort.
I’m not interested in restricting expression. I’m interested in not pretending that “corporations” are expressing “themselves”, because they have neither a “self”, nor anything to express, nor the means with which to express it. They are a vehicle for aggregating resources with certain legal protections, full stop.
And I’m interested in recognizing that when we talk about corporate “expression”, in particular for-profit corporations expressing themselves, we’re actually referring to human beings expressing themselves with other people’s money, and/or with money that has been accumulated for other purposes.
That’s the reality.
Corporations have no mind, they have no thoughts, they have no mouths with which to speak, no hands with which to write. Anything you can describe as the “expression” of a “corporation” is the expression of a natural human being or group of natural human beings.
The human beings ALREADY OWN the inalienable right to speak, as well as any number of other rights. The corporate form adds nothing to that right. All it adds is the ability to aggregate resources (i.e. money) with certain kinds of protections, depending on the specific corporate form involved.
I have no problem with people associating under the corporate form in order to pool their resources to engage in protected activities such as speech.
What I am against is people associating under the corporate form FOR OTHER PURPOSES and using the resources of those corporations to engage in protected activities such as speech etc.
NOTHING I HAVE SAID IN THIS THREAD OR IN ANY OTHER PLACE WOULD DEPRIVE ANY HUMAN PERSON OF THE RIGHT TO SPEAK, ON ANY TOPIC, ANYPLACE OR ANYTIME.
They just have to use their own money.
Natural human beings should be jealous of their rights, and should not be so eager to share them with artifacts of the law. Or anything else, for that matter.
Last but not least, a quibble: corporations are not a legal fiction. They are a creature of the law, but are not fictional.
It’s not an accident the government’s lawyer in CU argued that the government could, yes, ban books.
I doubt you will find many here who agrees with the argument that the government can ban books, or who thinks the essential point of CU was decided wrongly.
The issue in CU is the overreach into issues that were not even part of the original case.
As always, feel free to tilt away at the windmills in your mind, but (also as always) don’t put freaking words in other people’s mouths.
thompson:
“So, should the banhammer find me, let me leave with this …”
I don’t think the banhammer comes down on the mild-mannered, which you certainly are. 😉
Your lathers are the most polite I’ve come across, but you’ll need to yell louder for me to hear you above my racket, said the street corner crazy prophet to the innocent passersby.
Thanks for the welcome back. I just do my thing. I fry my other fish and if the stench becomes overpowering, ignore me.
I’ll send myself into commentary quarantine soon, being a self-aware plague sufferer. My pustules repulse even me.
I’m actually very mild-mannered in real life aside from internet political commentary, the occasional train wreck on the baseball field, and some absent-minded gibbering among my demons’ voices when alone, which I transcribe and pass on to my friends at OBWI.
As the other Beatles said about Paul’s uncle in “A Hard Day’s Night”: “He’s very clean.”
Carry on.
It’s not an accident the government’s lawyer in CU argued that the government could, yes, ban books.
You seem to be awfully hung up on this, as though it were something that had a great deal of public support or any chance of ever happening. And, although no one on this blog has supported the idea of banning books (at least to my knowledge), you keep using what this one lawyer said as a lever with which to extrapolate the true, hidden intentions of people here.
Or maybe russell was the government’s lawyer in CU and you’re right on the money.
Of course, I’d been reading comments for 15 minutes before writing one, so I’m redundant.
Although I agree with the spirit of russell’s suggestion to the effect that corporations are not legal fictions, there’s some history behind corporate personhood being a case in point of legal fiction.
I’d prefer legal construct, myself, but there’s a lot of inertia (not to mention a lot of lawyers) lined up behind the conventional use.
Last but not least, a quibble: corporations are not a legal fiction. They are a creature of the law, but are not fictional.
The lawyers can verify this, but I think “legal fiction” is a term of art for something that only exists as a matter of law and cannot exist in the absense of law, as opposed to, say, a rocking chair – which a shark might eat, under certain circumstances.
AGAIN???!!!
slarti, I stand corrected.
Thanks for the link.
NomVide:
“You certainly can. Indeed, I would hope that you are. I’m not sure why you see this as being incompatible with your interlocutors’ positions, though.”
Very well written post overall, and I pretty much agree. I apologize that I wasn’t more clear that I don’t find the view incompatible. I do, and I respect people who hold them, even “pinko leftists”.
I wasn’t objecting to the opinion that states and corporations can be in conflict, and that the state is a check on sweeping private powers.
I was objecting to a snide dismissal of my view that state power can be exercised by corporations to society’s detriment.
I was trying to point out, just because its a sometimes “or” proposition, doesn’t mean it’s never an “and”.
And also that I found the tooth fairy comment insulting.
Not that the only answer is to let private corporations have free reign to jackboot it up. And I’m sorry if I gave you that impression.
I view the undue influence of corporations as often acting under the aegis of state power. I view it as a problem.
That doesn’t mean I don’t also see company towns and strikebusting a problem, or monopolistic behavior a problem, or any of those other things. Nor do I disrespect people who share that view.
I just think there’s more than one problem, and I don’t like by mentioning one problem, it was inferred that I believe the tooth fairy will solve the rest.
To be clear, the concern over corporate power is one I share. And even if other people are more concerned than I am, that doesn’t mean I don’t have respect for those differences.
russell:
I apologize, it was late, and I wrote hastily.
“I just don’t think restricting expression is the way to solve it. You disagree. We’ve established this.
Just to clarify, we haven’t established anything of the sort.”
What I meant was “restricting the expression of corporations” not expression in general.
And I’m not married to that phrasing, I was just trying to come up with a dense way of saying we disagree on the fundamental point of whether the 1st applies to corporate speech.
I probably should have just said that.
I very much DID NOT mean to imply you wanted to restrict expression.
I was just trying to avoid you having to repeat yourself by taking our disagreement and stating it.
I did that very poorly, and I apologize.
I view the undue influence of corporations as often acting under the aegis of state power. I view it as a problem.
Since the original post concerns the PPACA, I image we could get into the many aspects of the law that were more or less written in by corporations, with the happy cooperation of lawmakers, to the great benefit of those same corporations. Even those of us (I speak for many, or course, whether they like it or not) who consider it to be a better crap sandwich than the previous crap sandwich still think it’s at least somewhat of a crap sandwich.
russell:
I think I used that term of art incorrectly. I think hsh is right that corporate personhood is a legal fiction.
Legal construct is probably a better phrasing. My point, which I think you got, was that they are instruments of the state.
I do understand that an instrument of the state, given too much power, can be in conflict with the state.
And count: I doubt there are many that could ignore you. I certainly can’t.
hsh:
That’s all I’m saying. There are a lot of crap sandwiches out there.
I don’t want to imply that just because I think X is a crap sandwich, that doesn’t mean I don’t also see the crap sandwiches Y and Z.
Really, it was just a matter of me learning it from Wikipedia and a few seconds later passing the link on to you. As with all things Wikipedia, there’s the possibility of inaccuracy if not outright wrongness.
That made me chuckle; thanks!
Now if I can only figure out how to mess with timestamps and not clue people in that I can do that…
This may of interest to those who cast a gimlet eye at government and corporate interference in their lives, with “corporate” making huge strides in the competition for absolute sovereignty over all of us.
http://www.esquire.com/blogs/politics/trans-pacific-partnership-documents-released-12091
Worldwide, living and breathing real people are shunted off to small claims hell against the vast powers that be.
This is the doing of the Obama Administration, which seems all to eager to compete with the Republican Party in the bidding to let corporations make love to us from behind.
The Biggest Company You’ve Never Heard Of (YouTube)
This is the doing of the Obama Administration, which seems all to eager to compete with the Republican Party in the bidding to let corporations make love to us from behind.
That’s what cracks me up when I hear people call Obama a socialist. If he is one, he’s one of the worst ever – as in, he’s not at all good at it.
Charles: Thanks for the video. The Guardian piece is also interesting:
http://www.theguardian.com/business/2006/feb/24/columnists.guardiancolumnists
Count: I can’t access the link, but if its about the recently released TPP drafts…yep. Public-private partnership at its best.
hsh: “That’s what cracks me up when I hear people call Obama a socialist.”
Yeah, never got that either. I voted for him the first time around (something which I very quickly and deeply regretted) because I bought into all the talk about an end to revolving doors, undue lobbying influence, and the propagation of the security-industrial complex, even if I disagreed with his politics.
It was not the end, it was a double down (and now I’m hungry…is there a KFC around?).
I really should have seen it coming and not gotten caught up in the hype. Well, mistakes are how we learn, I suppose.
CharlesWT:
Interesting, as in this kind of interesting:
http://www.youtube.com/watch?v=yuBe93FMiJc
The Serco CEO listens to God and commanded he be given full sovereignty over nuclear weapons, education, transportation, and prisons.
One wonders about his company’s birth control policies.
Housing prisoners in toilets is a touch I will remember when I find him and introduce his coif to the fatal toilet swirly and blow-dry.
http://www.youtube.com/watch?v=Lzt82V-xtfA
By the way, for those who wonder about the real me, Jim carry stole that entire character and bathroom scene from me.
I see that 85% of his employees are former government employees. How does this work on the condemnation/praise scale — are these individuals miraculously transformed in the public eye from lazy, overpaid, parasitic, jackbooted bureaucrats into Randian, entrepreneurial free marketeers overnight despite the fact that their predations are the same with less overhead?
“By the way, for those who wonder about the real me, Jim carry stole that entire character and bathroom scene from me.”
See? It’s this kind of blatant IP theft that the TPP is trying to prevent, Count. We can’t let the Jim Carrey’s of the world get away with it!
I’m kidding, of course.
One wonders if Serco will one day get a piece of this action when Guantanamo is privatized as it almost certainly will be at some point, given current trends:
http://www.globalresearch.ca/cias-global-shadow-war-hiring-private-mercenaries-and-former-guantanamo-inmates/5360513
Two of the facilities were named “Penny Name” and “Strawberry Fields”, by the CIA, the latter a torture chamber.
Personally, here’s hoping the Beatles’ Apple Corp and Paul McCartney’s MPL Productions begin legal proceedings against the CIA for appropriating the music of love in the service of Evil.
I guess the CIA works from the same sociopathic and murderous mindset as Charles Manson.
Failing legal remedies, I hope Apple and MPL open their own terrorist subsidiaries to wreak justice against the CIA personnel who came up with this naming scheme.
No one I think is in my tree, but the CIA is in need of deforestation, as are all national security apparati in all countries.
Every individual in the world needs to become a terrorist against the immutable forces of nature Ned Beatty orotunds about in “Network”.
Count me in, as John Lennon appended to another song.
I voted for him the first time around (something which I very quickly and deeply regretted) because I bought into all the talk about an end to revolving doors, undue lobbying influence, and the propagation of the security-industrial complex, even if I disagreed with his politics.
Not being John McCain would probably have been a good enough reason, as was not being Mitt Romney the second time around. Mileage varies on both counts, of course. I’ve been disappointed in many of the same ways you noted, but I can’t say I regret voting for him, given the alternatives.
what happens to corporations formed under state law when that state repeals its corporate code?
All hell would break loose as corporations fled the state for more hospitable environs. Many well dressed people would rush from office buildings and rend their garments in despair. Fear that Delaware would dry up and blow away would be the topic of endless pundit speculation.
However, after the initial panic subsided, people would realize that mouths still have to be fed, people would still need clothing, housing and some modicum of other needs.
Why, possibly, with a bit of imagination, they could even conjure up other arrangements for meeting them that do not require granting special favors and entitlements (you read that right) to a few certain people–fictional or otherwise.
As for the case at hand: I, for one, am amused by the asserted claim of “infringement on freedom”. When defending the principle of “employment at will” this same argument vanishes into the mists because as you see it’s all about freedom for me, not freedom for thee. Nobody forces these folks to stay in business. Nobody forces them to provide health insurance in lieu of cash. Yet these same folks will tell an employee, “If you don’t like it here, go somewhere else.” Freedom indeed.
In all fairness we, as a society, have the same right to tell employers the same thing.
“Not being John McCain would probably have been a good enough reason, as was not being Mitt Romney the second time around.”
The problem with that sort of reasoning is that eventually you’re voting for Caligula because he’s not Gengis Khan. There has to be a floor under which you won’t vote for somebody no matter HOW bad he tells you his opponent is.
The problem with that reasoning is that you’re either voting for Gengis Khan or not voting at all, leaving everyone else to elect Gengis Khan. (Or something – I don’t really buy it as being a matter of unavoidable logic.)
That was a nice shift you made there, Brett, from voting for someone whom you prefer over the opponent to voting for someone because he told you to prefer him over his opponent. It’s a good thing you’re not as stupid and gullible as I am.
I voted for Kodos.
Penny Lane, not Penny Name.
I voted for Kodos.
You do realize he’s considered a liberal on Rigel VII, right?
hsh:
“either voting for Gengis Khan or not voting at all, leaving everyone else to elect Gengis Khan.”
I voted for a 3rd party and I am much happier with myself. No regrets. A lot of people think that’s wasting your vote. I disagree with that and agree with Brett.
I don’t think voting for the lesser bad is the way to go. By which, to be clear, I’m not trying to imply you only voted for Obama as the “lesser of two evils”. I don’t know what reasons you had or if you are unhappy with the choice. You don’t seem to be especially cut up about Obama, so I’m kind of assuming you’re largely happy with your vote.
I just hear the “lesser of two evils” thing about most candidates, and I don’t think voting that way is going to result in better candidates emerging. They don’t have to be good, just less bad than the opposition.
I think votes for a third party, or even write-ins, are not wasted. People may disagree with me on that, I don’t hold it against them.
I’m sure everyone has read this, but it always makes me chuckle:
http://wso.williams.edu/~rcarson/lizards.html
And don’t construe my extreme, wrenching guilt over voting for Obama as a judgement against those that are satisfied with him. We agree, as always, to disagree.
can we just agree to be disagreeable ?
I voted for a 3rd party and I am much happier with myself. No regrets. A lot of people think that’s wasting your vote. I disagree with that and agree with Brett.
Maybe you agree with Brett. I couldn’t say, given what he wrote, but you may have gleaned something more than I did.
Part of the problem is over-generalization, as though I suggested that the specific cases of my voting for Obama over McCain and Romney were the result of some hard-and-fast rule, rather than about the circumstances of those two elections.
If I preferred a 3rd-party candidate, I would vote for that candidate if that candidate had even a remote chance of winning and if the difference between my preferences for the two major-party candidates wasn’t particularly large.
As it stood, McCain looked to be a complete train wreck and Romney would have taken sucking up to Wall Street to new heights, as I saw it. (But some people like that sort of thing.)
I didn’t really pay much attention to 3rd-party candidates in either election, given the circumstances. But that doesn’t mean that I never would.
Relativist!
hsh:
I wasn’t accusing you of voting for Obama because he’s the lesser of two evils.
I’m glad to hear you would consider 3rd parties, I think they are potentially a very useful tool in breaking the logjam of politics.
“can we just agree to be disagreeable ?”
Not even a question. I strive to be disagreeable regardless of the situation.
thompson: And also that I found the tooth fairy comment insulting.
Well, I’m glad of that because I meant it to be a little insulting. I hate to insult people inadvertently. What got my dander up was your writing this:
Which, although it’s speaking to Russell, I found insulting. You probably did not mean it to be, and Russell may not have taken offense, but the bolded bit annoyed me to the verge of irritation.
Insinuations that people like me and Russell don’t value “freedom” or “individual liberty” annoy me, however politely they may be expressed. I refuse to let conservatives or moderates smugly pretend that they own the franchise on “Freedom!”
Aside from that, I am perfectly willing to grant that us flaming libruls don’t own the franchise, either. And I’m sure I have suggested, some time, somewhere, that conservatives are all fascists who would trample on “Freedom!” if they had their way. If I have done so without meaning to, I humbly and sincerely apologize.
–TP
eventually you’re voting for Caligula because he’s not Gengis Khan.
From what (little) I know of the two of them, I would vote Ghengis Khan over Caligula every time. Especially since, as a voter, I would necessarily be one of his people. Nobody would want to be ruled by Caligula if there was an alternative.
“Well, I’m glad of that because I meant it to be a little insulting.”
Ok. I don’t think insulting people is a good thing. I understand that everybody says things they don’t mean sometimes, including me, and internet conversations make it easy to read in the wrong tone or subtext.
Direct, intentional insults, I don’t appreciate or particularly understand. If you insult me, I’ll probably just stop responding to you.
I’m sure you’ll find a way to go on without our witty back and forth.
“What got my dander up was your writing this:
[quote]
Which, although it’s speaking to Russell, I found insulting.”
Well, Tony, I didn’t mean it to be insulting and I’m genuinely sorry you took it that way.
I’m trying very hard to be careful in my characterizations of other people’s views. And I’m sometimes not careful enough. I’m longwinded to begin with, and I often don’t add clarification because, not having the subtext in my mind, I don’t realize the risk of it being taken a wrong way.
That doesn’t mean I don’t try to avoid it, but nobody’s perfect.
“Insinuations that people like me and Russell don’t value “freedom” or “individual liberty” annoy me, however politely they may be expressed.”
I wasn’t trying to make that insinuation, and I’m sorry you took that from it. I can see how you did, I suppose, but I think its a stretch.
I think its reaching a little bit to say that implied in that was that Russell doesn’t value freedom.
I’m pretty libertarian, I think I probably want less government than you or Russell, but I’ve said many times on this board that its about balance, and compelling interests, etc etc. And I’ve also said many times that when people disagree with me about what constitutes “compelling” or whatever, I can respect those views.
In that context, I find it hard to read my words and get to me implying you and Russell “don’t value freedom.” We all balance individual and state interests differently. I don’t think I’m always right, nor am I shocked and dismayed by people that make the balance a little differently.
Honestly? It would be shocking if everybody agreed with me.
But in the interest of finding common ground, I agree with this:
“I refuse to let conservatives or moderates smugly pretend that they own the franchise on “Freedom!””
You shouldn’t. No-one should let people hijack the debate in that fashion.
I’d personally extend it a lot farther. I think smugness is broadly a problem in public debate, not just in who owns freedom.
In summary, Tony, if I offend you with one of my comments, I’d appreciate it you told me why and let me clarify the statement.
But if you want me to engage with you (and that’s not a given), I will not respond to intentional insults. Conversations like that are unproductive and I have other uses for my time.
I agree with what wj said at 8:13 PM.
The only thing to consider is that what we know about that Roman emperor has been written by his enemies, so some historians consider the most egregious parts to be untrue (like the smear of Lucrecia Borgia). The Great Khan on the other hand spread a lot of nasty untruths about himself to intimidate his enemies. Still, it was not nice to get conquered by the Mongols but often an improvement being ruled by them (typically less bloodsucking and more reliable than the local elites they replaced).
So, my vote for the Khan too.
thompson, can I just say it’s a pleasure to read you. As an occasional lurker and even more occasional poster – while I disagree with much of what you say, thanks for the way you say it.
“conservatives” never use the law to force their morality on anyone.
Thanks, cleek! Always good to have a laugh to start out the day.