On the new free speech case . . .
Here are some quick comments on the Supreme Court’s opinion in Citizens United v. FEC:
* The Court voided a federal law insofar as the law banned independent election expenses by corporations and labor unions on behalf of a candidate. Direct corporate or union contributions to a candidate’s campaign were not at issue. Justice Kennedy wrote the opinion.
* The court split 5-4 on this point, with the justices of the so-called “liberal wing” dissenting. The dissent was written by Justice Stevens and joined by Ginsburg, Breyer and Sotomayor.
* On other hand, the Court upheld legal disclosure and disclaimer requirements as applied to corporations and unions. The court split 8-1 on this, with Justice Thomas dissenting. Justice Thomas reiterated the argument (accepted by the Court just a few years ago) that the First Amendment includes a right to anonymity, and he recited recent cases in which public officials and private groups had used campaign disclosure information to identify, harass, and injure donors with whom they disagreed.
* Both the Court and the dissent focused on whether the federal law at issue violated the First Amendment. No one addressed what I consider a more fundamental question – one the Court has never adequately examined: Is the Constitution’s grant to Congress of power to “regulate” the “Manner of holding Elections” broad enough to include this sort of campaign finance legislation at all? There is considerable Founding-Era evidence that the answer is “NO.” If that is the case, the law should have been struck down without even reaching the First Amendment question.
* Justice Stevens had an “original understanding” argument that, in my view, bordered on the frivolous. It was that the Founding Generation distrusted corporations and imposed extensive regulations on them, so the Founders would not have thought that corporations had any freedom of speech. However, the regulations in question were economic; Justice Stevens could point to no instance of a Founder suggesting that corporations were without freedom of speech. It is true that the Founders acknowledged the propriety of all sorts of economic regulations — and not just on corporations. But they singled out speech for special protection.
* The majority overruled the 1990 case of Austin v. Michigan Chamber of Commerce, which held that independent corporate and union expenditures on behalf of candidates could be banned. There was much discussion about stare decisis — the principle that case precedent should be respected. The majority and dissent analyzed the issue at some length, as did Chief Justice Roberts in a concurring opinion joined by Justice Alito.
* There is a special irony in the fact that the “liberal wing” of the Court voted to uphold this congressional regulation on speech. During the twentieth century, Supreme Courts with liberal majorities vastly increased the scope of the Free Speech Clause — (1) applying it against the states and in court proceedings, even though the wording of the First Amendment specifically says that it applies only to “Congress” and (2) extending “free speech” protection to such marginal activities as pornography and nude dancing. Now comes a case in which the very entity restricted by the First Amendment (Congress) tried to suppress speech at the core of the First Amendment (political speech) — but the liberal wing wanted to uphold the law.
* Montana Code Annotated Section 13-35-227 reads in part:
“Prohibited contributions from corporations. (1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.
“(2) A person, candidate, or political committee may not accept or receive a corporate contribution described in subsection (1). . . .”
It seems likely that this section will have to be narrowed so it is limited to a ban on direct corporate contributions to candidates.
* Most memorable quote from the case:
“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” — Justice Kennedy
It would seem to me that those and only those that have the right to vote should be the ones’ to have a right to contribute. That sounds very simplistic, I know, but is based on common sense as a good starting point.
I for one do not want to see big business and the unions having COMPLETE FULL CONTROL over the electoral process. The US Supreme Court has made a grave error on this one…..
To Taxpayer:
The Court considered that one. An argument in favor of this sort of legislation is the “anti-distortion” argument — that corporations can raise big money and bias elections.
However, the Court noted that the overwhelming number of corporations are relatively small firms, and that the legislation banned their participation, too. Congress made no effort to identify only the large corporations — it just passed a sweeping law that caught all for-profit and non-profit corporations in its net. In the free speech area, the Court traditionally has required laws restricting speech to be “narrowly tailored” — that is, not to regulate people who are not part of the alleged problem.
Remember also, that corporations and labor unions, even big ones, have many varied, and often contradictory, interests, and can be counted on to support different candidates and causes.
I confess here a certain sympathy with those who believe that corporations and labor unions are economic entities and should not be participating in politics. But personal views as to what is good or bad policy are not really relevant to the question of whether a law is constitutional.
For what it’s worth (not much, I know!) I’ve always felt that a LEGAL ENTITY which is required to PAY TAXES should have a voice in the electoral process. Exempt corporations from taxes and then I’d reconsider.
Auntie Lib
I am with you 100%.
How hypocritical to call Corps an “entity” so the govt can tax and regulate but then deny that entity the right to defend itself.
Remove the identity and the tax.
I just want to thank Professor Natelson for his comments. After listening to the “talking heads” all day long on various networks, I appreciate his “cutting to the chase” of the matter.
Now, how quickly will this ruling effect Montana law Rob?
This dreadful decision only enables the ‘Corporatocracy’ and corporations do NOT have the rights of individuals and obviously the five ’supremes’ neglected
Thomas Jefferson and other founders on this. We won’t have a senator from
Texas anymore, we’ll have senators from the ‘State of ExxonMobile’ or the ‘Sate
of Peabody Energy’, etc.
Lt Col Liebert, do you think we don’t have some Senators and Representatives “bought and paid” for now?
What was that saying years ago? No taxation without representation. Well, corporations, large and small, are taxed. It seems to me those taxpayers should be represented as well. Or is that too simplistic?
As far as control over U.S. Senators, I would prefer for the 17 Amendment to be repealed and we go back to the Senators being chosen by the states’ legislatures. At least then the Senators would be “beholden” to their states or they’d quickly lose their jobs. And maybe encroachment by the federal government on states rights would be slowed or halted all together. Not an unpleasant thought!
The media corporations, both large and small, have been campaigning for their favorite candidates and causes without restriction, why not other collections of people?
Repealing the 17th Amendment could have its virtues, and for a corporation to have the rights of a human being makes it a ’super-citizen’ compared to an average citizen like you or I. There are also FOREIGN shareholders in these multi-national corporations who are NOT US citizens or voters who would dis-enfranchise your vote or mine. Senators indeed are ‘bought and sold’ in
some elections unfortunately.
I agree with the Colonel. Corporations get their VERY good tax breaks and other goodies from our form of government. They are also, in many cases, controlled by outside interests perhaps even our enemies. Do you want our enemies to directly control our elections now?
Also, I do not look forward to MUCH MORE endless mind bending political commercials for months on end before an election. What a mess, thanks Supreme Court!
I respectfully disagree with the good colonel.
Say as a community minded individual, I join the local Chamber of Commerce. As a matter of business, our organization is incorporated (as most associations are). Should we as a corporation have our rights to free speech restricted, yet the local newspaper (which is also a corporation [think Gannett])…not?
Some politicians are concerned that they will be unable to control the political message that large corporations or public interest associations wish to promote. I wonder where the notion that the right to free speech should be restricted in direct proportion to size of the interest it came from? Certainly not the First Amendment.
Finally:
“Those who criticize this decision have lost sight of a basic truth: the answer to speech they disagree with is not to restrict that speech, but to answer it with more speech.”… Hans Von Spakovsky
Have you ever noticed that in a debate, those that seek to stifle the ability of the opposition to present a point of view that they oppose….are always wrong (think Hugo Chavez).
olredtrk, spot on.
[...] gang over at Electric City Weblog put up a nice summary of the [...]
SCOTUS strikes another blow for global feudalism. This has nothing to do with legal precedent, or “the law,” it’s all about ultimate power to trans-national corporations. Now it’s official, people are second-class citizens.
We have a government of the people ,by the people, and for the people . Corporations do not deserve or need an equal voice in this government . The corporation is a group of people and those peoples voices are heard individually or as a part of a politacal entity . The most disturbing term I have heard in the last few years is market place of ideas. If that is what we have ,then money trumps all and the people lose. What the founders gave us was a system based on debate . Money corrupts the debate and must be tightly controlled.
Ken, is it you or is it Karen posing as you this time? Corrupting a debate takes many forms, including impersonation.
Corporations have been blessed with personhood since the 19th century. There is nothing novel here. Aunti Lib and JAC have a point.
[...] United v. Federal Elections Commission”. On a more local level, the analysis goes from the judicious to those expressingconcerns that go beyond the scope of this case to speculate on how campaigns [...]
I was initially shocked by this decision … not so much shocked as knowing it was coming but still fearing the force of the blow. The Federalist Society has control of the court now, and we are in the hands of extremists that even make the perfesser sound a bit rational.
At the heart of this notion is the idea that corporations are legal persons. It’s the result of judicial activism in the late 19th Century where a former railroad president, acting as a Clerk of Court, wrote a header to a court case that eventually became precedent. The idea is absurd. Of course corporations are not persons – they are legal constructs that should be heavily regulated and kept out of the political process. But they are simply too powerful to regulate or control.
In fact, they were already in charge. There are very few in Washington who are not bought by some pile of money somewhere, and there are piles of corporate cash behind Heritage and Manhattan and ACU and AEI and the Democratic Leadership Council and all the other like-minded think thanks who hire supposed “intellectuals” to produce the sophistry that justifies this ruling. (I realize that Mr. Natelson works for free. He’s a true believer.) And it’s not just campaign contributions – it’s favorable press, lucrative jobs for them and for relatives (who does Mrs. Evan Bayh work for?), it’s perks and parties and jets and women and the threat of exposure for nefarious deeds.
It’s power. It’s raw and naked and out in the open now. Maybe we will be better off that way. Maybe it is better than pretending it does not exist. But don’t for one second think that this ruling is in any sense, in any sensible world even remotely justified. This ruling is power talking. Nothing more.
Obama took $20million from the health care sector in 2008 and didn’t say a word about it. Now they can come right out and openly campaign for him. Maybe that’s better. Maybe we would not be surprised that he worked so hard to pass their bill.
If so then we should expect that all corporately owned news organizations should be kept out of the political process. And, continuing that line of logic, all non-natural persons such as labor unions, advocacy groups (NOW, Planned Parenthood, NRA, NORML) religious groups, etc. should be banned from political activity. Would you draw the line there as well?
Not being a lawyer I could be wrong here, but as I recall from the contract law part of my business law classes the legal construct of a “legal person” goes way back in common law. In other words, the idea of an entity other than a human being being a “person” can be traced back several hundred years. The term “person”, then, is not to be confused with a “natural person” or “human being.”
Common sense went out the window when lawyers came on the scene, in a big way, during the last century!
Oh sure, it’s all the lawyers’ fault.
Let’s get away from this ‘corporation as person’ idea. A corporation, even to the extent it is deemed a person by the law, is not a person or, as the distinction is often framed in legal discussions, not an individual.
A corporation, though, can only act through individuals.
An individual that acts or communicates on behalf of a corporation is a corporation’s agent. A corporation can act only through agents (since it isn’t really a person; that is only a legal construct). An agent can communicate on behalf of a corporation in a number of ways:
The agent can ask questions: “Would you like fries with that?”
The agent can testify at a legislative hearing: “House Bill 10 is bad.”
The agent can buy an ad: “Buy our Product”
The agent can write a letter to the editor: “Don’t support House Bill 10.”
Why is it, then, that we have no problem with certain agents of certain corporations writing editorial pieces: “Vote for Max Baucus,” but we have such a huge problem with other agents of other corporations writing advertisements: “Don’t Vote for Max Baucus”?
Gannett is allowed speech; Northwestern Energy isn’t?
I don’t understand the distinction some of you draw? We have been allowing political speech by corporations for years….some corporations. In doing so, we have been drawing false distinctions between otherwise legally indistinguishable, for profit companies.
Gregg, thanks. Perhaps we might think of it in terms that collective political speech is afforded the same rights as individual political speech?
Corporations are legal entities that we allow to form due to their utility – they can raise large sums of money and accomplish large projects that would be otherwise hindered or impossible. But they are not our masters, and their ability to raise such large sums should not turn us into their servants, as this ruling does.
It’s about power, Budge. Power. And another thing – all of you running around trying to justify this obvious and painful nonsense – it’s about sophistry. Power begets sophistry. People are drawn to it and fall into its service just as the little lamb and that Mary bitch.
Mark, why don’t you answer my question instead of telling me how simple minded I am?
Mark T, your knowledge and appreciation of the subject is rather limited. See: http://topics.law.cornell.edu/wex/corporations
Once the status of corporations is acknowledged the consequences, intended or not, follow.
All persons have constitutional rights. Removing the status of “person” from corporations may lead to even more unacceptable results on multiple levels. Law Reviews would have fun with this.
Mark, why not address the conceptual arguments we are making instead of reverting to the simplistic Chomsky-speak?
Gregg — that is one of the more lucid and concise defenses of corporate free speech I’ve read. Thanks!
And ditto for Prof Natelson’s read on this opinion. Just read it myself; who knew Justice Kennedy’s prose could so inspire?
For those ready to shed the “…long Train of Abuses and Usurpations…” imposed upon the citizens of the United States of America by trans-national corporations, it is time for a new Declaration of Independence, and an accompanying Amendment to the U.S. Constitution. For the rest of you, apparenty pleased to serve tyrannical corporate masters, may you one day experience freedom and value of rule by, and for, the People. A free People. We have just been given the catalyst needed to regain the freedom and justice our government has taken from us.
“For the rest of you, apparenty pleased to serve tyrannical corporate masters, may you one day experience freedom and value of rule by, and for, the People. A free People.”
Sounds like a plea to end forced union membership with the jackboot of the leadership on the membership conscripts.
Ladybug, I had mistaken you for a liberal democrat.
Craig,
I did not see anything in Ladybug’s post concerning unions. She finished by saying “We have just been given the catalyst needed to regain the freedom and justice our government has taken from us”. Hopefully she is correct and the public speaks out loudly about this horrible decision or at the very least turns off their TV’s during election periods…..
Anonymous, my facetious comment was to make the point that actions have unintended consequences. Not thinking this through has bear traps for the ideologically blinded. See: http://www4.law.cornell.edu/uscode/1/1.html
Are corporation paid political TV endorsements more annoying than candidate paid? Isn’t it odd that many are alarmed that corporations may now place campaign ads that will have a significant effect on an election but it doesn’t concern these same people that an election swaying number of voters make decisions based on these same annoying ads? Corporate money wouldn’t matter if non-discerning voters weren’t encouraged to vote with get out the vote drives.
“Hopefully she is correct and the public speaks out loudly about this horrible decision…”
Hopefully the public outcry, which I haven’t heard, is ignored since Supreme Court decisions are not expected to reflect the will of the majority.
Gregg, you need to reread Ladybug’s message.
Wolfpack, I find ALL these political endless TV ads really annoying. Adding to this melee is not going to help. If a politician cannot get his or her message out and across in 60 days or less, then they really have no meaningful message…..
Nothing about book banning.
Shades of Fahreheit 451?
I thought the libs were all about protecting access to books?
http://www.youtube.com/watch?v=PeGlzEavpTM&feature=player_embedded
Budge: Mark, why don’t you answer my question instead of telling me how simple minded I am?
Smith: Mark, why not address the conceptual arguments we are making instead of reverting to the simplistic Chomsky-speak?
First, Gregg, I impose a $100 fine for any who call me “Chomskyite” to merely infer that I am someone’s tool. Reading Chomsky requires hours and hours of concentration on the problems of Israel/Palestine, Timor, Pol Pot, Vietnam, the nature of power and behavior of people around power, and even American history itself. I have an idea what he will say about this ruling, but he usually surprises in having insights others lack. I await his writing on the subject. But for you to try to pigeonhole me by using the phrase “Chomskyite” in such a manner as to infer that you are somehow superior in reasoning processes is high comedy. Hence the $100 fine. You can donate it to the Green Party.
I choose to read him, you choose not to. Bite me. If you don’t like him, send him an email – chomsky@mit.edu – you’ll be surprised. Unless you go all pompous on him, he’ll answer you.
Budge: I did not say you are simple-minded. Don’t put words in my mouth. I said you are a sophist. Your arguments regarding freedom as it applies to the corporate structure are specious, designed to deceive. I think yesterday you even went back to Benedictine monks to assert personhood for corporations. That historic reference is as meaningless as it is useless, and yet … it conveys some gravitas to this debate, which is simply about preserving democratic governance. Weird as that was, you were doing something odd – trying to make it appear that you have more depth than you do, and you do have depth. But you did not seem to grasp that the references to monks of old was irrelevant and useless. If innocent, then simple-minded. If not, then sophistry. You decide.
Gregg: You cited chapter and verse of the legal code regarding corporate personhood, but did not offer up any justification for granting political freedom to corporations. Quite frankly, that was clueless, and is going to cost you yet another $100. Again, Green Party.
What about other human organizations – should we grant them political freedom? If they are political, yes. Current law allows all organizations to engage in educational activities, even churches, who do not belong in politics. In other words, we drew a line. It’s so easy, and your inability to make that distinction, Dave, points to a defect in your thinking processes. Somewhere in your wiring, you are keyed into the needs of power – you and the perfesser both are tools.
You haven’t begun to address the questions. Why is a corporation, for what ever reason of it’s primary existence, not a political being? You’re an arrogant dolt that doesn’t have a prima facia argument so you revert to ad hominem attacks.
Question answered in spades, though not to your liking. All organizations are political, not all are dangerous. As a democratic society, we are perfectly within our bounds to corral the dangerous ones.
We allow corporations to exist and grant them privileges to achieve an economic objective – accumulations of large pools of capital resources to achieve large projects like manufacture of automobiles or exploration for oil. We do not say that we allow them to accumulate vast amounts of capital so that they can then enter the political system and engage in propaganda.
We can say no to that. That you cannot see this is supreme stupidity. My remarks have been pointed. It’s painfully obvious that you have reasoned yourself into a corner on this one. My words are not ad hominem. My arguments are cogent and concise. Democratic societies can regulate capital. The refusal to do so is doltish.
[...] of expression over on that side to allow a few to break out. But I have not seen it yet. The usual suspects have formed a circle. It takes a high dose of cognitive dissonance and submission to [...]