Apropos of Today’s Supreme Court Ruling
Posted on January 21, 2010 Posted by John Scalzi 162 Comments
So, how long before the Supreme Court gives corporations the vote?
Whatever
FURIOUSLY REASONABLE
WHATEVER
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John Scalzi, proprietor – JS
Athena Scalzi, contributor – AMS
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I agree with Steven’s dissent. This isn’t about free speech, it’s about buying votes.
Ack. Stevens’ not Steven’s. Pardon me while I go flog myself with a copy of Strunk & White…
They already do and just had it confirmed with todays ruling.
Oh wait, that was a rhetorical question wasn’t it…
Well, businesses are comprised of hundreds to thousands of employees. Unions and nonprofits too.
Not only should they be given the ability to use their finances to sway politics in favor of the people they represent. But the CFO should be able to vote as many times as his organization has members. Just like a stock holder.
How could we get by if we didn’t have strong organizations like this to shepherd us through the whirlwind of modern day politics?
Here’s to the chairman of the board. May he long tell me what to think.
Agreed. Really have no idea how restraining the ability to buy the loyalties of our nation’s leaders is the same thing as speech. If that’s the case, why isn’t restricting my ability to buy automatic weapons or Crack cocaine a restriction on my free speech?
Also, waiting for the first wing-nut to arrive and compare the restriction of campaign financing to slavery, or fascism. Prove me wrong, please!
The question is, when does the USA become a plutocracy?
When Roberts was nominated to the Supreme Court I recall him saying (roughly) that he wanted a more united court. The idea, I think, was that he wanted decisions to be much more specific to the cases in question and not have broader reaching implications, it being easier to get consensus about whether this action is legal than it is about whether all actions of this type are legal.
Wonder what happened to that plan?
I think this is very, very bad. Corporate personhood is, IMHO, a bad idea.
Christopher @6
Around this point
http://en.wikipedia.org/wiki/Ronald_reagan
It seems to be the new (or now newly-official) thing — “One dollar, one vote”.
I, for one, welcome our new & improved corporate overlords!
Just in time to give the insurance companies and investment banks the chance to spend billions to defeat Democrats in the next election cycle.
Seriously though. Think about what the last presidential election looked like in terms of money contributed. Hundreds of millions of dollars, and that was just Obama’s war chest.
The boys on Wall Street must be rubbing their hands together a listening to “You Ain’t Seen Nothing Yet” on infinite loops on their platinum plated Ipods.
Whoa. How incredibly bizarre. On the face of it, it looks like far-right+big-business against the new liberals. EXCEPT…take a look at the split in who voted for what.
Something else is going on and I don’t think it’s good.
Oh, wait! This means Google can solve all our problems, merely by purchasing every election in the United States. huzzah! We are saved!
Remind me again how the grassroots tea party movement is all about main street, not wall street, and the GOP is the closest to the tea party people?
Will they protest this? Nah. Healthcare reform is the real danger, right?
Well, the good news is that the Founding Fathers are generating a lot of renewable energy spinning so rapidly in their graves. Pretty soon we’ll be off foreign oil.
As asked by a friend: so this means that unions can now spend money on politics, right?
Woot! Capitalism wins again!
Given that our SCOTUS has wisely decided that the oppression of our corporations has gone on long enough, I believe giving them the vote is the only logical thing to do.
I do fear, however, that this line of reasoning could lead them down the dangerous path of concluding that people are *also* people, and should they accidentally be left with money, could *also* express a monetary opinion without limitation. Such a decision would be judicial activism at its worst; let us simply be on guard against such legal reasoning, and continue to elect good, modest conservatives who respect stare decisis and the desires of our founding fathers (who also plainly recognized the value of corporate free speech).
The only right and proper thing, now, is to also eliminate the restriction on non-profits making political speech. Might as well let non-profit-making bodies in on the action.
Warren Buffett’s a big Obama supporter, y’know. If I were a conservative, I don’t think I’d be any happier about this than I am. It’s quite possible that history will look at this as one of the worst decisions of the Roberts court.
I’m with Stevens on this one, even though I’m an ardent capitalist.
Citizens are people who have to live here, and who mostly have certain sorts of in-built checks on their behavior, like shame and pride.
Corporations are machines whose purpose is profit. They will do what it takes to make a buck. This is especially true at scale, when moral accountability becomes impossibly diffuse, and decisions are usually separated from consequences. Too often, their motto is, “It’s nothing personal.” And it isn’t to them, but it sure is to the people they affect.
Corporations have an important role to play in the world, but one entirely subservient to civil society.
http://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad
In which corporate personhood was affirmed through the unilateral action of a court reporter and former railroad president. And things have just been getting worse ever since.
I expect the Supremes will give corporations the vote at roughly the same time Congress gives it to illegal aliens.
Escentially they just did by allowing them to openly buy the candidates. Guess they want to prevent even the illusion of grass routes movements
From the article: “It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.”
A non-profit corporation? I honestly didn’t know such things existed. I thought they were foundations or associations or whatever.
But seriously, I think I need to be the one to disagree with everyone here. This is a group of people who got together to pool their money to be able to distribute their opinion more efficiently. That doesn’t seem like the kind of thing that should be illegal in our country.
So, how much can GM give? Seeing that the government owns 60% of the company? When Are all the expected effects going to be negitive? I don’t think much will change, really. One buys the vote one way or the other.
Once again, the failure to understand history is the doom of being made to repeat it. Corporations were set up under extremely rigorous conditions in this country. They were chartered only on the proviso that they serve the community interest and their charters could be revoked at will for failure to do that. By this original standard, all modern corporations likely would be dissolved for their preference for self-preservation and profit over service to the general population. When the Supreme Court originally decided years ago that there was such a thing as “corporate” speech, the beginning of the end was in sight.
I think everyone, of every political stripe, should be horrified by this ruling. Some may see short term wins but in the long run, it’s going to be an arms race only with money.
I’ve never thought corporations are people. I’ll never figure out how that was justified.
And now, this.
Generations from now, people will look back on our era as full of lessons in Truly Grievous Political Mistakes.
If corporations are going to be given the rights of citizens, when are they going to have to show up for jury duty?
And now, all the Democrats in the House who could be persuaded to vote for health care reform are now thinking “do I want to be running this fall against someone who got blank checks from the insurance and pharmaceutical industries”?
Been thinking about emigrating to Norway….
This talk of the Supreme Court’s ruling being equivalent to granting personhood to corporations is hyperbole.
The ruling is about who is allowed to spend money on political advertising – things like TV commercials, mailers, etc. Those advertisements are used to spread ideas – supporting or attacking a political idea or candidate. Wealthy individuals and certain political organizations (like 527 groups) are allowed to do that now. This ruling will increase the number of groups who can participate in this.
Corporations should certainly have the right to politcal speech. Exactly how dollars = speech remains unclear to me. What we now need is for congress to decide to change the constitution to specifically exclude the funding of campaigns from “free speech.” the companies can put up ads, talk to employees, put out flyers, encourage community support for the candidtate of their chosing. Why they should be able to completely disenfranchise voters through use of superior funding is beyond me.
The worst thing is that this means we instantly get billion dollar compaigns that it will be impossible to excape from.
In other news, a group of insurance firms and Wall Street banks announced an offer to purchase Congress in an all-cash transaction valued at $96 billion. The corporations, which already own a minority stake in the venerable institution, expect a vote on the buyout in November.
Matthew@33: Of course this most recent ruling doesn’t grant legal personhood to corporations. It’d be silly to do it again, when it was already done more than 100 years ago.
Matthew @ 25
I agree – I don;t havea problem with a group of private citizens putting otu whatever crap they want – so long as they make it clear that it’s THEIR crap, and they make clear why we’re beign shown this particular pile of crap at this time.
Wow. First Mass. goes Republican, now the SCOTUS goes big business. I have this stark emptiness like when my first girlfriend dumped me in 7th grade. Only this time, I’m worried about my kids.
Probably more important to worry about is when they will pass down a ruling that brands anti-corporate rhetoric of any kind “bias” or “hate speech,” so we can’t even complain about it anymore.
*spits bitterly* Pfugh. Can’t express how unhappy I am right now.
Big corporations tend to spread their money pretty evenly around, and it doesn’t always do what it’s supposed to. Whereas unions seem more inclined to always support democrats. And that doesn’t always get them what they want either.
I can see now that disallowing tax-exempt entities, like churches, from giving money or endorsing candidates, seems hypocritical. Freedom of speech doesn’t stop just because you’re a preacher at a mega-church.
I’m going to party like it’s 1899!
Now that the shine of the WWII everyman has worn off big business can get back to what American big business does best. Screw the middle class — all you need is cheap labor and someone to tell them what to do! Consider yourselves lucky to have been alive in such a glorious era. Viva la Revolution (the industrial revolution, that is).
We’re well on the way to Franchise-Owned Quasi-National Entities, aren’t we?
Haha. No, not really. We’re on the way to Franchise Owned National Entities.
Crapburgers.
Joel @ 38: “What we now need is for congress to decide to change the constitution to specifically exclude the funding of campaigns from “free speech.””
Congress cannot change the Constitution. Assuming you’re a US Citizen, you should know this.
And since this ruling in practical effect allows corporations (and unions, to be fair) to “buy” your congresspersons openly and legally, I think it unlikely that congresspersons would in any way try to limit the source of their own re-election campaign money.
A friend said to me “Nothing’s changed, they’ve been doing this all along, they just don’t have to hide it anymore.” True, but now it will be exponentially harder to make that change, if not flat out impossible under our current system.
In the long term, this decision will be the legal basis for androids and war-veteran robots to claim their civil rights.
Horrible ruling, absent unbreakable and strongly enforced restrictions on corporate behavior. Since those restrictions don’t exist, and weren’t well enforced even when they were closer to existing, corporate personhood — when corporations have exactly zero moral sense or conscience — is a terrible, no-good, very bad idea.
Christopher @ # 28 – I think everyone, of every political stripe, should be horrified by this ruling.
Except they’re not. The GOP is cheering this on, excepting McCain so far as I can tell. If it really was that important, we could pass a constitutional amendment overturning the Supreme Court decision, and the GOP and the Democrats would both be fine with it.
A commentor (BZ) at the Volokh Conspiracy law blog breaks down the real meaning of the ruling very well. The key point – contributions are still full limited. Corporations can’t buy candidates any more than they used to be able to. What they can do now is use their money to directly communicate their opinions – and those opinions are still subject to existing laws (like having to say “this commercials has been paid for by such and such company” in their ad).
From his comment:
The decision only applies to “independent expenditures,” not contributions to candidates. This distinction is fundamental to the thinking behind campaign finance regulation. The older rationale, known as the “anti-corruption principle,” says that direct contributions to candidates and campaigns have a unique potential to generate quid-pro-quo corruption. History amply demonstrates that this potential becomes reality in a disheartening number of cases. The anti-corruption rationale was upheld strongly today, when the Court majority found that corporate contributions to candidates would continue to be prohibited.
It was the newer (1990) “anti-distortion” rationale which was struck down. The anti-distortion rationale says that massive infusions of corporate speech into the “political marketplace” will distort campaigns, and so direct corporate speech should be restricted. The Court majority, after looking through hundreds of thousands of pages of evidence introduced in court cases this decade and finding no real evidence of such distortion, disagreed saying:
“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.”
Josh Jasper @ 11:
I haven’t seen the Dems do much yet that would call for that. Though esperanza muere la última, I guess.
Having read through the finding and court commentary over on scotusblog I have to concure that this was a bad thing. However, the court did leave a lot of room open for further campaign finance reform, and it certainly left room for further lawsuits. I think most folks, regardless of political side, will be quite unhappy about this one.
“Congress cannot change the Constitution. Assuming you’re a US Citizen, you should know this.”
There are only two ways to amend the US Constitution. One, driven by the states, has never been used. The other starts with Congressional action, requires both houses to approve by 2/3, and then requires ratification by the states.
In what way does this not count as “Congress changing the Constitution”, given that they’re critical to the process as it has been undertaken every time to date?
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Answer: They already do… or more precisely, their owners do.
There’s a lot of bad information going around about “OMG THE COURTS ARE SAYING THAT CORPORATIONS ARE PEOPLE.” Let me see if I can set the record straight on what a corporation is and how it’s treated under the law. (For the record, this is based on what I learned in my law school Business Associations course. If you really want to learn more than you ever wanted to know about this subject, one of the co-authors of the casebook we used blogs specifically on the Citizens United case – and why it’s correct – over here.
The starting points is that all people have the rights to a) own property, b) associate with other people, and c) express their views on matters of public concern. All a corporation is is a group of people who have agreed to associate with each other and pool their property for some common purpose (usually, to get rich).
To do this, they get a document from the state called a “charter.” (It’s actually ridiculously easy to start a corporation and get a charter, all you need is two or three friends and a few hundred bucks for filing fees.) What the charter does is 1) grant the corporation the right to own property and sue and be sued in court in its own name (and a few other powers, most of which can also be done by individuals, but the property and lawsuit parts are the most important), and 2) grant the owners of the corporation “limited liability” so that if the owners cannot be held legally liable for the corporation’s debts out of their own pockets. The corporation only has those assets and property that it has earned or the owners have contributed to it. (Owners own corporations in “equal undivided shares” – they have a claim to a percent of the business as a whole, not any particular piece of property.)
Now here’s the part that confuses people. The law says a corporation is a “legal person.” This is an example of a legal fiction – a convenient shorthand that allows someone to make a contract with, buy a piece of land from, or sue one single corporation instead of 10,000 individual shareholders. And lots of other things are considered “legal persons” with the power to own property and sue and enter into contracts – most notably, governments. But only a living, breathing, human being can be a “natural person.” All natural persons are legal persons, but not all legal persons are natural persons. (And so long as the general principle is “one man, one vote,” only natural persons have the right to vote.)
However, none of this changes the fact that a corporation is still made up of and accountable to human beings, either an individual (as a with sole proprietorship) or a collective group (as a with a partnership or a corporation’s board of directors elected by the shareholders). Since there’s so many different types of corporations, I’m going to call the people who control the corporation and tell it what to do “the owners.” A corporation’s owners have still have legal duties – to society, to the corporation and its employees, and to the other owners. (And if the corporation misbehaves or the corporation’s owners abuse the corporate form to commit fraud, courts can “pierce the veil,” ignore the corporate charter, and impose liability directly on the corporation’s owners.) Think of a corporation like a car, and the owners are the driver. The driver exists separately from the car, and without the driver’s input the car just sits there.
And this is where the “rights of a corporation” come in. Anything an individual person can do, a group of people can do, and thus a corporation can do. And yes, this includes making their opinions on pending legislation known under the free speech clause of the First Amendment. Because a corporation is not some disembodied entity, but a group of human beings. Everything else is a bunch of legal jargon. The corporation only has what the human beings who make it up choose to give it. If the owners want to use their votes as individual people to benefit the corporation, that’s their choice. But each of the individual owners only has one vote they can legally use to help the corporation – their own that they get by virtue of being a human being.
Final, separate point: So long as buying and selling are controlled by legislation, the first things that will be bought and sold are legislators. No amount of “campaign finance reform” will change this. You want to reduce the amount of money in the political system? Reduce the size, power, and scope of the political system.
Bearpaw – well, Democrats are proposing better federal regulation of banks, and insurance companies hate the Democrats because of health care reform.
Matthew @ 46
“Corporations can’t buy candidates any more than they used to be able to. What they can do now is use their money to directly communicate their opinions – and those opinions are still subject to existing laws (like having to say “this commercials has been paid for by such and such company” in their ad). ”
That may be even worse.
Your local PR exec tells a congressman, who chairs an important comittee in the house, “We’d like to see this bill die in comittee. Make it happen and we’ll flood your district with supportive advertising making this bill look like a threat to The American Way to minimize the impact on your approval polls. If this thing goes to a vote, we’ll similiarly swamp your district with ad copy attacking every position you take, and associating you with every political villain we can come up with.”
No, this is definately bad news. Hearing this kind of stuff just makes me sad and tired.
<a href="http://busmovie.typepad.com/ideoblog/2004/05/is_a_corporatio.htmlBetter, shorter version from another law professor:
No, a corporation is not a person. It’s a piece of paper sitting in a secretary of state’s office. Pieces of paper can’t be discriminated against, vote, or have political ideas.
But corporations are people – the owners and others the corporation represents in litigation. These people have speech rights, rights not to be discriminated against, and so forth.
Yeah, it really was better for everyone when all of the Rape The Earth Corp. campaign contribution money was passed through it’s separate “Americans Who Love Kitties and Puppies” not-for-profit arm. So open and transparent!
I believe the answer to your question, sir, might be: “they just did.”
Gary @53 – I follow your logic, but the SC was concerned about the same thing, researched it thoroughly, and found that concern baseless:
“It was the newer (1990) “anti-distortion” rationale which was struck down. The anti-distortion rationale says that massive infusions of corporate speech into the “political marketplace” will distort campaigns, and so direct corporate speech should be restricted. The Court majority, after looking through hundreds of thousands of pages of evidence introduced in court cases this decade and finding no real evidence of such distortion, disagreed ”
So you can say the SC is corrupt, stupid, ignorant, etc – and you may be correct. But the Supreme Court seemed to feel that those annoying TV commercials aren’t quite as powerful a weapon as you think they are.
Maybe Americans aren’t as ignorant as you think, and when we know candidate A wants to drill for gas in Alaska, and candidate B does not, when we see ads attacking candidate B paid for by Shell Oil, we can connect the dots.
Lots of Americans are stupid, but lots of Americans don’t vote, and I think that if you did a VENN diagram between the two you would see a lot of overlap. So lets try to give voters some credit.
Josh Jasper @ 52:
Democrats have proposed better federal regulation of banks. If they actually do so — real re-regulation, not window-dressing — I will be much pleased. Their record on this sort of thing is not encouraging, but stranger things have happened.
As for “health care reform”, true, insurance companies would be much happier if all it contained was the requirement that everybody give them money. But even so, it looks like it will be a net gain for them. Their bureaucracies get to rake in even bigger bucks, and the government still takes care of a lot of the really expensive cases.
Restricting the supposed “free speech rights” of a corporation would not restrict the actual free speech rights of the individuals who are part of that corporation. It would simply prevent the obvious amplifying effect of the corporate structure. (And if there weren’t an amplifying effect, then they obviously wouldn’t want to do it that way, would they?)
Corporations are, like Soylent Green, made of people, and thus they’ve already had the vote for a long time.
This decision is about their free speech rights, and I find it astonishing that anyone here actually believes that Apple Computer, say, should have fewer free speech rights than General Electric does, or for that matter that Ford Motors should have less than The New York Times, Inc.
Oh, and anyone who actually believes that their fellow citizens are so sheep-like as to be swayed unthinkingly by evil corporate political spending ought to re-think their belief in representative democracy entirely…
This is just one more step in the ongoing march towards a world in which corporations are run for the benefit of their executives, rather than their stockholders, workers, or customers. It just takes it one step further, so that they can leverage corporate power to shape even more of the world to reflect their personal preferences. The wealthy (such as corporate executives) have always been permitted to spend unlimited amounts from their own bank accounts, so long as they did so according to simple rules (see the Swiftboaters for an example). But now they can use money that belongs to the shareholders to do so, instead. And you can bet that very few of those shareholders will have any ability to craft the political purposes to which their money is put.
I wouldn’t mind corporations having ‘human’ rights, as long as they also had ‘human’ obligations. So that in the next war you people start, the first people to be sent over would be Haliburton’s stockholders and directors.
Jon H @49: “In what way does this not count as “Congress changing the Constitution”, given that they’re critical to the process as it has been undertaken every time to date?”
They’re critical to the process, as they should be in their role as our representatives, but they can’t do it themselves without the rest of us signing off on it.
There are two ways to fix the problem of corporate donations leading to corruption in government: stop corporations from donating the money in the first place or remove the power of the government to bestow these gifts on corporations. It seems to me that as long as the government has the power to manipulate the economy to the benefit of some corporation, and as long as corporations still want the government to do so, the two groups will come together and find a way to make this happen.
I think it was James Madison who said that if men were angels we would need no government. And, yet our government is run by…men…who are not angels and who will turn the system to their advantage given the opportunity. The solution is to handcuff them and take away those opportunities.
For people who have questions about what the ruling actually says and/or does, you can read it here (warning: biggish PDF):
http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf
The legal chatter-o-sophere is still feverishly working on dissecting the ruling. As always SCOTUSblog is a good source. There’s an article on Justice Stevens reading his dissent, and of course there are posts at The Volokh Conspiracy if that’s your kind of thing.
On corporations, to add to MasterThief’s post – and my views are based less on my long-ago Corporations class than on experience with suing them as part of my job – the primary purposes of corporations are as a liability shield and favorable tax treatment, in that order. (There’s nothing inherently wrong with either of those things, btw.) ‘Piercing the corporate veil’ is very difficult to do and usually happens when there is dumb and obvious behavior – one person holds all the shares and offices and doesn’t keep records, say.
Also that a lot of the bad things we think of as Corporate Evil is directed less by corporations per se and more by insurance companies, who coincidentally are also the ones opening the pocketbook when the SEC or OSHA or a civil jury hits a corporation upside the head with a fine or judgment. Go look at the advisory boards or the board of directors of outfits like the Chamber of Commerce sometime; it’s very eye-opening.
Matthew in Austin @57:
I wouldn’t say that American voters are stupid. I would say that advertising, executed properly, works.
I can’t speak to the motives of the SC in this specific instance. The line of reasoning (corporation = group of citizens, therefore if citizens are entitled to free speech, and groups of citizens are entitled to free speech, corporations must also be entitled to free speech) makes sense, though I’m afraid they’ve failed to recognize that some groups of citizens are unlike others.
I *am* concerned that larger and larger amounts of political sway are being placed in the hands of groups whose stated purpose is the pursuance of profit, and nothing else. I have no gripe with that purpose, but I don’t want them deciding school curriclum or setting the State DOT budget either.
I, and I’m sure most other Americans who work for corporations, have no say in the political agenda of my employer. Nor should I. Now, I have to worry about it. Are my efforts at work furthering a political agenda I disagree with? I guess I’ll find out.
@Branko Collin Actually, no human being has had a legal obligation to go to war for the United States since 1973.
Jeff R @60, if corporate donations (evil or otherwise) do so little to sway voters, why are corporations so keen on donating so much money? Are they stupid? Do they just get a warm fuzzy feeling out of giving money to politicians? Presumably they believe they are getting some equivalent benefit for these donations – say, persuading the candidate in question to vote and see things there way.
The vote that is being directly bought is not yours or mine; it’s the government officials. Acme Worldwide Evil Inc is not paying us to vote, but it might well donate money to our Senator in the hopes that she will support that new tax-exemption bill proposed by AWE’s lobbyists. And she’ll use that money on ads, fundraisers and campaign appearances to try to persuade us to vote for her.
Why would they need a vote? They can just skip that tedious election process and outright purchase a Congressman or Senator or two! Cutting out the Middle Man! You know, citizens. I think I will go and reread Heinlein’s “Starship Troopers” yet again and pay extra attention to the History and Moral Philosophy sections.
What part of “Congress shall make no law … abridging the freedom of speech,” don’t you understand?
This specific case was a group of people organizing to make a political point (speech). This group happened to be a corporation.
Do you really want someone in the government deciding which groups of people are allowed free speech and which aren’t? If so, imagine your worst idea of a previous president with that power :(.
The Bill of Rights was written to limit what power a government had over you. I would imagine liberals would be especially happy that government lost a tiny bit of that power today.
mythago@68: This decision isn’t about corporate donations. It’s about independent expenditures. Political advertisements. Free Speech, in other words.
(And further, in the donations business they generally give to the politicians that don’t need to be bribed; you get the guy whose district is going to have 100 more AWE jobs if the exemption passes to introduce the thing and then log-roll it supporting a bunch of other congresscritters’ favorite riders along with it. Structural problems that don’t have much to do with the corporation-ness of the donating entitiy at all.)
If this decision by the Supremes cannot be legislated into irrelevance, then the thing to do is to create a not-for-profit corporation and sign up as many citizens as possible as members and stockholders.
This entity will not only be designed to shield each member legally, it will become the American individual’s primary means of influencing public policy, using the same “corporate speech” as the profiteers. Yes, the only way to fight the corporation is to become the corporation.
Of course, the elites would, in reaction, eventually decide upon our (ahem!) behalf that not-for-profit corporations are an abomination of capitalism and democracy, unworthy of institutional or constitutional respect. Because, hey, you know, they unfairly amplify the speech of individuals and produce no real value — i.e., profit.
Once they’ve used the very institutional mechanisms they have corrupted to ban this reaction to their own excess, the second American revolution should begin soon enough.
But as long as Americans accept a belief system in which rugged individualism is sufficient for democracy, none of this is likely to transpire. Inasmuch as American education increasingly is a corporate enterprise, we shouldn’t hold our individual or collective breath that elites can be contained by sheer logic and long-established principles of human rights.
Ron: you do realize that the “corporate free speech” that the decision upholds is something that ordinary people already have by virtue of the first amendment, don’t you? In fact, it’s strictly inferior to the basic version, as a non-corporation type person has a right to anonymous speech, while the court was 8-1 in denying that right to the corporations…
Why would one favor curtailing the speech of the rich and well connected yet not that of those articulate, intelligent or charismatic?
More evil has been done by honeyed tongues than by wealthy villains .
mythago@65: Could you expand on your statement that there’s “nothing wrong” with corporations being used as a liability shield? Because to my mind, that’s the most terrifying thing about corporations: they’re a legal fiction that can take the blame for evil acts perpetrated by actual individuals, who feel a diluted legal and moral sense of responsibility for those evil acts.
Further, what seems to happen as a practical matter is that blame is shifted from corporate decision makers to the lowest levels of employees who are given the choice between committing illegal acts on behalf of the corporation (and being held fully culpable for them), or losing their jobs and livelihoods.
I understand the use of a corporation as a means to pool resources and risk for a major undertaking and then distribute the rewards should that undertaking succeed, but I have never fully understood the way culpability is allowed to flow from top to bottom as a legal principle (of course, I understand it quite well as a practical matter).
William @22: “Corporations have an important role to play in the world, but one entirely subservient to civil society.”
This was part of the original justification. I don’t know enough about the history to know whether it ever actually worked that way. Can anyone shed some light on that?
I have had the feeling for a long time that a large part of the problem I see with bad corporate behaviour (bad according to my judgment, of course) is the mismatched scale of corporations vs. individual citizens, and even vs. our governments.
I think Lessig is nibbling at the edge of this, but I doubt he will have any success, given the nature of the problem.
Some of the benefits of corporations come from their large size — the ability to assemble the resources to complete large projects, when those large projects are, on balance, beneficial to society as a whole. But when the project are detrimental, those benefits turn into curses.
I sometimes dream how it might be nice for A. E. van Vogt’s Weapon Shops to be real, counterbalancing the evil corporations. I wonder whether a bad experience with some large corporation motivated those stories. But, of course, “nightmare” and “dream” aren’t so far apart, so there is no solution there. Daryl Swinson @69: You’re right, the Starship Troopers world is probably a better dream to aspire to, but it’s probably an unattainable dream.
If there is a solution, I think a large part of it has to come from improving education as a whole to develop better critical thinking in everyone, so they can see through the efforts to manipulate them into voting for what benefits large institutions, at the expense of their own interests. Of course, that requires that interested citizens actually can find out what really is happening in the world, which, itself, is a problem when large corporations control the news as well as the ads.
Sure, a corporation is “made of people”. But so is a bus, a subway car, or a crowded sidewalk.
As for the dangers of governments regulating corporations, without regulation we’d have to trust drug companies not to poison us. The FDA, for all it’s flaws, eventually regulated fen-phen, which was killing people. Without that regulation, the only way of stopping the deaths would have been lawsuits.
Of course, then corporations would lobby for “tort reform” to limit damages to a wrist slap, and they’ll probably get away with it now that they can effectively bankroll anyone they want.
The true tragedy of the Bush years will be the Roberts court.
Masterthief – I think everybody here understands what a corporation is. The concern is corporate governance. Yes, in theory the shareholders run the company. In practice, the Board and CEO of a company is so well-insulated from the shareholder as for them to be non-existent.
What makes this worse is that most Americans hold their shares via mutual funds. So my fund may own a billion shares of Company X, but I don’t vote even a proportion of them – the guy that runs the fund votes the shares.
From Wikipedia, a short history:
> … In the United States, government chartering began to fall out of vogue in the mid-1800s. Corporate law at the time was focused on protection of the public interest, and not on the interests of corporate shareholders. Corporate charters were closely regulated by the states. Forming a corporation usually required an act of legislature. Investors generally had to be given an equal say in corporate governance, and corporations were required to comply with the purposes expressed in their charters. Many private firms in the 19th century avoided the corporate model for these reasons (Andrew Carnegie formed his steel operation as a limited partnership, and John D. Rockefeller set up Standard Oil as a trust). Eventually, state governments began to realize the greater corporate registration revenues available by providing more permissive corporate laws. New Jersey was the first state to adopt an “enabling” corporate law, with the goal of attracting more business to the state.[11] Delaware followed, and soon became known as the most corporation-friendly state in the country after New Jersey raised taxes on the corporations, driving them out. New Jersey reduced these taxes after this mistake was realized, but by then it was too late; even today, most major public corporations are set up under Delaware law.
> By the beginning of the 19th century, government policy on both sides of the Atlantic began to change, reflecting the growing popularity of the proposition that corporations were riding the economic wave of the future. In 1819, the U.S. Supreme Court granted corporations a plethora of rights they had not previously recognized or enjoyed.[12] Corporate charters were deemed “inviolable”, and not subject to arbitrary amendment or abolition by state governments.[13] The Corporation as a whole was labeled an “artificial person,” possessing both individuality and immortality.[14]
So you see, the mere existence of corporations eventually corrupted their intended purpose. Agglomerating power and control outside of government (which is the community of citizens) and individual citizens created a third estate, which had the advantage of being a set of enterprises devoted not to the community, or the nation’s well being, but to its own profit.
If corporations not only can speak as loudly as they like about political issues, and have many more dollars to do so than everyone else, they will eventually monopolize the arena of public discourse, crowding out individual speech. This has been obvious for a very long time and has been the subject of much speculative fiction. Worse yet, corporations now effectively control the public resource of electronic communications and actively seek to gate-keep that resource. Corporations are thus vertically integrated purveyors of speech. They in turn have unlimited power to deprive others of speech by not only controlling its dispersal, but also by drowning out alternative voices. And yet they are only creatures of law, and could be unmade — if they allow it.
I do think that the one saving aspect of all this is that people are already greatly suspicious of advertising messages. If they come to see corporate speech as just more of the same, all the money in the world won’t do the corps any good. On the other hand, if opponents have no money or access to mass media, there will still not be a significant counterpoint. This is “1984” run by private, autocratic, manipulative elites and not by governments. For an example of how this might work, go look up the original movie “Rollerball.” We’re halfway there already.
As persons, corporations should be eligible to be drafted into the Army, and paid at the level of a private. The entire entity’s production or product should then become available to the US army for the pay of a private. <>
“If corporations not only can speak as loudly as they like about political issues, and have many more dollars to do so than everyone else, they will eventually monopolize the arena of public discourse, crowding out individual speech. This has been obvious for a very long time and has been the subject of much speculative fiction.”
Monopolize all public discource? Obvious for a long time? That is ridiculous. We would all completely ignore corporate speech except that they spend fortunes to place their advertisements right in front of us. But we all largely disregard them, and instead spend our time debating real people – like what you and I are doing right now. Why on earth would that ever change? Your conclusions are completely unfounded.
my head hurts…
but I’m beginning to think that’s the point….
If you look @ the worst case scenario’s listed by everyone, then I’ll be inundated w/ a bunch of cr@p via fliers & commercials (which I DVR past when I do watch TV) when the coming elections start up.
I’ll be a typical “Gen X’er” & after my initial 15 seconds will see something shiny & will flitter off in a different direction & most likely NOT vote because I’ll just be tired of it all & …. oooohhh! Allen Iverson is going to start the All-Star game!!
#70 MPHouston: What part of “Congress shall make no law … abridging the freedom of speech,” don’t you understand?
It’s illegal to shout “fire” in a crowded theater. It’s also illegal to libel or slander someone. All of those are laws restricting freedom of speech. Are you seriously suggesting that these should all be legal?
AlanM points out that there are extreme exceptions to the free speech rule. I hope he won’t extrapolate into banning unpopular (or unpopulist) speech.
> Monopolize all public discource? [sic] Obvious for a long time? That is ridiculous. We would all completely ignore corporate speech except that they spend fortunes to place their advertisements right in front of us.
First, I did point out in my comments that skepticism about advertising is the only politice against this awful court ruling. Nevertheless, it really is obvious from history that if you let rich people (and rich corporations) throw their money around indiscriminately, they will begin to monopolize and eventually succeed in monopolizing public discourse.
This indeed is how most nation states operated across much of human history. Go study feudalism. You’ve got one vote and one dollar? Too bad! I’ve got a million votes and a million dollars, so I always win.
But we already have examples across this country — without this ridiculous ruling — where corporations have used their clout to elect judges who subsequently sided with them in cases. This ruling will accelerate that kind of activity. This “anything goes” mentality says that money trumps speech, meaning wealth trumps democracy.
> In fact, it’s strictly inferior to the basic version, as a non-corporation type person has a right to anonymous speech, while the court was 8-1 in denying that right to the corporations…
Yeah, but if we had four more Clarence Thomases on the court, the law of the land would now be that corporations could anonymously attack anyone, spending any amount. Thank god the situation is only half that bad, I guess.
Even most of the right wingers on the court recognized that corporations and other collective entities ought to be required to say who they are and who they represent, so the rest of us can figure out exactly where they’re coming from and their agenda. That’s a no-brainer.
> Why would one favor curtailing the speech of the rich and well connected yet not that of those articulate, intelligent or charismatic?
It’s not a matter of “curtailing” speech, it’s a matter of balancing it. In a society where one-person, one-vote is sacrosanct, how should it be possible that a billionaire has the capability of outshouting you and millions of others? Because, as anyone who has studied communications theory knows, there is limited bandwidth in the world. Message transmission is a zero-sum game. If a handful of people send most of the messages, the rest of us are left to fight for crumbs. Most political scientists and sociologists who study nations think it obvious that wealth and democracy are in a delicate balance, and that greater concentrations of wealth unbalance democracy. Now the court — made of up mostly of white, wealthy, elitest males — has said that wealth can be freely used to PURCHASE free speech. And there’s only a limited delivery system for such speech, most of it already owned by the wealthy. Think it over. This is bad for conservatives and liberals alike.
Ron, is there any reason you couldn’t have put those all into a single comment?
Just as everyone gets as much free speech as they can generate, they get to vote as many times as they can. Hence, corporations will soon be given the vote.
Likewise, I look forward to the future so many are predicting, where my vote will simply be given to whoever spent the most money campaigning.
Sarcasm aside, look at where you’re reading this, people! Do you really get your information from the people spending the most money any more?
> Ron, is there any reason you couldn’t have put those all into a single comment?
John,
1. Shorter messages are easier to digest, as any corporate advertiser would attest. I could have written one big long response, instead, but I saw no rule insisting upon that.
2. My preferred method of following the conversation is not to come visit the blog each and every time; it’s to read the comments one by one as they pop up in my email (as I have arranged), and then, as I have time, to reply to each in turn.
RL
However, Ron, my preferred style is not to have multiple sequential posts from the same person, and this is my place. So in the future, compile your postings into one bigger post, please.
Ron, I’m in favor of purchasing free speech. That’s how Thomas Paine made some money.
If his tracts had only been “made possible through the donations” of corporations, where’s the harm?
Throughout this thread I can see a tug of war between freedom and democracy. Both are essential, but democracy should be viewed as a path to freedom and the good life and not the goal itself.
The argument that a corporation is simply the agent of its shareholders, and therefore inherits, as it were, its shareholders’ right of free speech, doesn’t hold water.
If I want to exercise my right of free speech to argue for some political position, I can do it myself; I don’t need the company I hold stock in to do it as my intermediary. If I do want to sponsor some intermediary to combine my speech with thousands of other people who want to say the same thing, the most effective way to do so is for me (and those thousands of others) to donate to a political party or some other expressly political organization.
I buy stock in corporations not to advance some political speech, but to get something in return for me personally, that something generally being money. If a corporation is giving money to some political cause but its directors don’t actually think the donation will affect its shareholders’ return on investment, then it is wasting its shareholders’ money. If the directors do think the political donation will affect its bottom line, then they’re engaging in legalized graft.
Walt: Nothing wrong with buying speech, but then, hey, it isn’t any longer free, now, is it? Cash, as an economist would say, is fungible; free speech is not.
John: Glad to be made aware of your preferences. This message, which strings replies to two comments, is evidence I read same.
Thanks, Ron.
John, here is an angle you may not have thought of… With all this new corporate money pouring into advertising, I imagine the potential price you could charge for ads on Whatever might rise past your threshold… Every man has his price!
sptrashcan @75: it would have been less sloppy for me to say that shielding from liability is not inherently bad. The corporation is a shared enterprise which is subject to a lot of rules that an individual is not in order to keep its status. It exists as a separate entity. This means that it’s easy to point the finger at who is responsible for wrongdoing; you don’t have to figure out if it was the CEO, or five dissident shareholders, or simply a whole daisy chain of stupid people whose individual decisions seemed sound but collided into one giant ball of gross negligence. It also means that the collective assets and existence of the corporation – not the assets and standing of every person who owns a share – are what’s at stake.
And of course it encourages people to go into business. Would YOU want to start a bookstore if you knew that, should one of your employees accidentally drop the limited-edition lead-bound edition of Your Hate Mail Will Be Graded on a customer’s foot, that the customer will go after your house and the employee’s record collection? Me neither.
Of course this is abused, but that is an argument for stronger penalties for corporations and greater ability to seek criminal penalties against corporate executives who commit wrongdoing.
Walt @85, AlanM was responding to someone who pretended that the First Amendment is an absolute, by correctly pointing out that it’s not and even in the minds of the kind of people who hate Marbury v. Madison, the Framers probably weren’t trying to eliminate laws about libel or treason. To turn around and suggest AlanM is on a slippery slope to Big Brother suggests you either didn’t read the preceding comment or are picking a particularly dumb fight.
>To turn around and suggest AlanM is on a slippery slope to Big Brother suggests you either didn’t read the preceding comment or are picking a particularly dumb fight.
Probably both, mythago. I am overly sensitive to the argument that since the government already does such and such therefore they should be allowed to do anything they want.
Actually, it is about free speech and equal access to the political process. If the law made a distinction between persons and organizations, and said only persons can make political contributions and statements, I wouldn’t object.
But when you say that corporations are blocked, but labor unions and PACs of every variety and not blocked, it isn’t equal. It’s saying, “We don’t want your opinion, just shut up.” Sort of like what a great many organizations say to me, that because I am gay I have no right to speak on anything because I am evil by definition.
No effort has ever been made by anyone to give any organization the vote, so I see that as a stupid argument. I also don’t care for the attitude that any politician that agrees with anything a corporation wants does so because he has been bought. Nobody seems to think that any politician who agrees with unions, or with other organizations or PACs does so because he was bought. Can’t it be possible that organizations, like people, contribute to those politicians who already agree with them?
I would never contribute to any politician’s campaign in an effort to get him to change his ideas. It wouldn’t work anyway. I would contribute to one who says what I think, who agrees with what I want. And I strongly suspect that most or all on this comment thread do the same.
What would corporations want voting rights for? They already own all the politicians, and the Surepemes have just ensured their rights to this ownership.
Scalzi thinks that the SC decision is wrong. What he doesn’t say is that believing as he does requires us to adopt the position of Justice Stevens. Since I’ve read papers by 5th graders which contain better examples of critical thinking than the ones found in Stevens’ decisions, this would be an extremely bad idea.
mythago@98: Thanks for the clarification. It does make sense, under that context, to have a business entity which is held liable for actions made in the pursuit of that business: a single easy-to-identify target for litigation, and a pool of assets which if forced to pay a fine will, in theory, hurt the pocketbooks of everyone involved in making the decisions. And I bet it even works for small corporations, where the decision makers within the company are heavily invested in its success and stand to lose a lot if the company is held financially accountable for wrongdoing.
I’m not sure if that legal model scales well, though. In fact, I’m pretty sure it doesn’t. That shareholders and decision makers are two different groups within the company is one point of risk. The degree of coercive leverage a corporation has over its lowest-level employees, especially in a nation with a terrible social welfare system, is another. It seems a lot of corporate and financial activity is dedicated to ensuring that those in the know can reap rewards without being exposed to risk, while those outside the loop bear all the negative consequences of mistakes and wrongdoing. It’s not surprising, of course, and one could argue that any system one could dream of will eventually tend toward preserving the power of those who have power, regardless of its original purpose. Since you seem to know what you’re talking about, though, I’d be interested in how you would formulate the corporation in a way less prone to abuse.
(He said, knowing that this is the sort of question whose answers are many, complex, and often unsatisfying to those looking for a slogan and a quick fix.)
The interpretation of a corporation as being a living entity has been taken to a level of absurdity. I have a suggestion for some aspiring young prosecutor out there somewhere.
In a state where the death penalty is allowed, find a death from a previously known source of such (tobacco, etc) and criminally prosecute the manufacturing corporation for murder, seeking the death penalty for punishment.
This may seem silly, but today’s ruling does to me as well. I would find it fascinating to hear the manner in which the accused corporation would then seek to divest itself from the responsibilty of being an executable entity.
Walt @99, as soon as somebody makes that argument I’ll be right there with you. Nobody did.
sptrashcan @103, search me. I just sue the bastards. I don’t think the model is unworkable, though, since the problems seem more of enforcement and weakening of other elements – for example, stronger whistleblower protection and social safety nets would alleviate some of the abuse of power within corporations.
By the way, there’s a very simple way to correctly argue that corporations should have no right to free speech. Simply stop taxing them. As long as corporations as entities are taxed however, then the corporation as an entity has a right to speech.
Moreover, since felons can be denied the right to vote, there is plenty of precedent to deny corporations the right to vote, and the reasoning is exactly the same. It is in society’s overwhelming interest to disallow both groups that power. The same exception has not been carved out of the first amendment, and so cannot in good conscience be made for the right to speech. This does not keep Justice Stevens from tacking in this direction however. Or for the ‘wise Latina’ to follow him, along with the rest of the leftist branch of the court.
ravenshrike @106, what are you talking about? Do you think that if you make too little this year to owe taxes that you lose your First Amendment rights? Did you miss the legal distinction between a natural person and an entity such as a corporation?
mythago@105: Unfortunately, those kinds of reforms would have to be enacted by our legislature. Hilarity, of a not particularly amusing sort, ensues.
Since you can’t now stop the undesirable consequences of this decision by legal force, what about strategic consumer boycotts? Corporations don’t like those, since they directly target their raison d’etre and hence their execs’ reputations.
To take advantage of this particular decision, it seems to me that they have to expose themselves pretty much in public. So take the soon-to-be-infamous Plutocorp intervention in the Podunk election – the one that is calculated to infuriate the maximum number of customers when the facts are concentrated upon – and make sure that no-one ever, ever wants to be the guys who trashed their brand that way again. Self-censorship, not legal censorship – leading, if we’re lucky, towards a self-enforcing change in manners and expectations.
If this gets suppressed by some bullshit brand defamation law, then you can talk about the imposition of formal plutocracy – and take all the steps you would in any other such situation. More, you will have a lot of people who are okay with this decision hard behind you.
Ron @ 88: The idea that message transmission is a zero-sum game, and that hence making ‘excessive communications’ is an offence against one’s fellows that must be restrained by some form of legally enforceable communications rationing, is possibly the worst general principle I have ever seen endorsed on a blog about writing. How many of my neighbours’ rights am I infringing when I publish my opinions and a million people read them (ha!) instead of just mumbling them over a beer like an ordinary decent guy? How much do I owe them for being an attention hog, think you? There are lots of important messages to get out besides the political, after all!
The Supremes seem to have carefully forgotten that the claim of corporate personhood is a myth.
http://www.wisdc.org/blog/2009/10/old-glory-is-so-yesterday.html
Books have been written about this, the latest member of the court reminded the court of this when the case was brought up for the second year in a row. (this case was sent back down last year in order to be reconfigured into the form that the Roberts/Scalia portion of the court wanted to rule on.)
This is just a naked power grab by the corporatist wing of the Federalist Society. No more, no less.
#110: What he said. Armey/Santorum in 2012!
Apocalyptic gnashing of teeth aside, nothing good will come of this.
Alan M @ 48
>It’s illegal to shout “fire” in a crowded theater. It’s also illegal to libel or slander someone.
I did not argue that the 1st amendment was absolute. The ‘shouting fire’ case has a VERY compelling reason that it is not allowed. Just because you don’t agree with what corporations say is not very compelling reason for prior censorship, IMO. I think most people would agree that ‘shouting fire’ is not allowed, but when you have no agreement on a type of speech, then I default to ‘protected’. Flag Burning: protected, Breast-baring: protected, Campaign Ads: protected.
Political speech is the most important type of speech that the founders wanted protected. I don’t think they really were concerned about people dropping the F-bomb on TV, but I have no problem with extending it to speech I don’t feel comfortable with. That is the whole point of the first amendment. Once you have someone deciding what is acceptable based on subjective criteria, then you open up a huge whole.
Would you really trust Jeb Bush to decide what speech is Ok? He might decide Union ads are bad, but pharma ads good.
Libel and Slander are technically not crimes and government cannot censor those prior to the ‘speech’. There may be serious civil penalties for them, but the government is not involved in deciding what you can say. The courts help arbitrate between the speaker and the person slandered. Having freedom of speech is not the same as having no consequences from speaking.
(Sorry for the long comment. I tried to be short in the original post and obviously did not make my point clear :).
I did not argue that the 1st amendment was absolute.
Indeed, you did, in @70: “What part of “Congress shall make no law … abridging the freedom of speech,” don’t you understand?” That ‘no law’ would include no civil laws as well as criminal laws, btw. I don’t think you would accept a law that made criticizing the President defamation per se that allowed the White House to sue you for damages on the grounds that defamation is technically not a crime.
The issue in this case is less about the speech than about who is saying it. A corporation is a ‘person’, but it’s not a ‘natural person’ in the way you or I are. Did the Framers intend to protect your right to say that Obama does not in fact poop rainbows? Absolutely. Did they intend to protect the right of AWE Inc to give two million dollars to its pet senator? That’s what the case was considering. If you haven’t read it I urge you to do so.
Jeff R @71: AWE has all kinds of tricks up its sleeve, but again, if giving money to political campaigns doesn’t do much good, why is AWE bothering? Are its political strategists stupid? Do they just like giving money to politicians? Is it one of those urban legends, like the placebo effect, that people just kind of go along with because they assume it’s true?
What alternate universe are you living in mythago, in which I apparently typed something along the lines of “Only those who made enough in the previous year to be taxed should have the right to free speech.”
Of course, now that you mention it, since anybody who buys something in the US pays sales tax on it, that would under the current tax scheme be a perfectly equitable arrangement.
mythago @113 Yes, you are right. I probably should have phrased that “I did not mean the 1st amendment was an absolute”.
And yes, the ruling was specific to what groups of people had the right of free speech.
My main point is: Do you really want someone in government deciding that? Some think corporations should not have this right. Ok, but what if someone else thinks unions should not have the right either? What about foreign non-profit corporations? What about the local garden club?
I would be happy to say ‘yes’ to all of the above. When you say ‘no’ to some of them, you open the door to saying no to all of them.
#112 MPHouston
I agree with you! The first amendment is *not* absolute and, as such, Congress will sometimes restrict the right for what one hopes are very compelling reasons (like crying “fire” in a crowded theater). I, personally, believe that there is a compelling reason for restricting corporate speech.
The objection to corporate speech isn’t just about whether or not I agree with them, it’s also, perhaps even mostly, about the massive resources that they can bring to the discussion. This has the potential to shout everyone else down, skew democracy and make elections even more about money than they are now. This is not an unreasonble position. As Justice Stevens said “The court’s ruling threatens to undermine the integrity of elected institutions around the nation.” Obviously he was in the minority, but he’s hardly ill-informed on the matter.
Your later comment “Do you want the government deciding that [who has free speech]?” confuses me. If, as we both agree, the 1st Amendment isn’t absolute, then who is supposed to decide where the exceptions lie if not the government?
> GRAY WOODLAND: How many of my neighbours’ rights am I infringing when I publish my opinions and a million people read them (ha!) instead of just mumbling them over a beer like an ordinary decent guy?
None. Of course, it’s unlikely in most such exchanges that a million people are reading, whereas a million people — nay, 20 million! — can easily be exposed to a political ad from
a corporation placed on network or cable TV, if that firm so desires. It’s like poker: Their arguments may be paltry, their motives insincere and self-aggrandizing, but if they have a bigger pot of chips, they can make outrageous bets and win — a slick ad agency helps, too.
Democracies can’t exist if they refuse to mediate excess, and while I agree that the content of free speech and the right to it are absolute, the delivery mechanisms and ownership of those mechanisms are not. I mean, in the name of free speech, could you threaten to murder someone who refused to listen to your opinion, or refused to agree with it? Can you yell fire in a crowded theater? While you can, if you’re a sociopath and you’re willing to pay a huge price. Corporations are willing to pay a huge price, because to them that price is often trivial.
Beyond that, the implication in your comment is that free speech is infinitely available. It isn’t. Go check out Gresham’s Law. In a material, resource-limited society, where mass communication definitely is not free, people with more means control more speech. The “net neutrality” movement and the body of anti-trust law both elaborate upon this point.
> ALAN M: The ’shouting fire’ case has a VERY compelling reason that it is not allowed. Just because you don’t agree with what corporations say is not very compelling reason for prior
censorship…
But shouting is pretty much what this case was all about. Consider the analogy of a town hall where everyone wishes to speak but the
local bigshot corporation controls the microphone, tuning the amp down to 1 or 0 if it suspects it won’t like a comment, and turning
it up to 10 (or even a “Spinal Tap” 11) when its own people are speaking. The existing law basically said that for 30 days up to an
election, corporations and other organizations can’t control the mike. Now they’ll be able to shout all they like, and shout you down. I suppose we could wait until they did this and then fine them, but the damage would then be done.
Or to take another analogy, consider this site, which basically amounts to corporate speech (I say that without value judgment). The owner can chose to eliminate all speech he finds objectionable, because, like Reagan in those infamous debates, he has paid for the equivalent of a microphone. That wouldn’t seem to matter to the extent anyone can move their comments to another forum or buy their own mike. But what if corporations own most if not all the forums? What if, as increasingly is the case, they own most of the bandwidth and
distribution system? This isn’t about speech, it’s about access to speech. And money? That’s access, baby.
TO SEVERAL COMMENTS: The idea of removing personage rights of corporations upon their conviction for malfeasance has merit. Heck, Warren Buffet is out there this week saying that when a corporation bellies up, the CEO and his spouse should be wiped out financially, too. Anybody who thinks Buffet is some kind of commie raise their hands.
To all, a good book on the subject by a great writer:
Thom Hartmann, “Unequal Protection:The Rise of Corporate Dominance and the Theft of Human Rights” — seminal survey of how corporations have come to assume the rights of individual human beings, but not the obligations.
AlanM @116 >I, personally, believe that there is a compelling reason for restricting corporate speech.
You are right, it is a reasonable position. So is the opposite position. If we look at the Supreme court 4 out of 9 agreed with you. My point is that because we are divided, we don’t want government making that decision. The court decided that Congress could not make that call without amending the Constitution.
If you look at the spectrum of speech types, at one end, we all agree that yelling fire in a theater is not protected. At the other end, we all agree that Joseph Blough standing on a box outside of the Capital is protected.
It’s all of the messy cases in the middle that we disagree on. I think it has to be more compelling than ‘All Liberals or all Conservatives think it should be protected or banned’.
Also, just because one type of communication is more effective than another doesn’t mean it should be banned. Maybe I think the Networks’ Nightly News broadcasts are too effective. If I can get 51% (or 60%) of congress to agree, should those be banned too?
@AlanM
The fact that Justice Stevens can pull stinkers out of his ass like that with a straight face shows just how out of touch with reality he is. The Nelson kerfluffle shows just how much ‘integrity’ your average politician has.
You know what, the American voters have so mucked things up (Massachusetts being the latest,) that maybe we should just turn it over to the corporations. They’ve been efficient. Indentured servitude isn’t that bad if they let some people have iPods, and the freaking libertarians would finally shut up and stop misquoting Smith. We could dispense with all the ridiculous rhetoric while the country is drained of every dollar it has. And after that, the tent cities when SF fans used to post-apocalypse fiction will have the advantage on fighting over food scraps.
The vast majority of corporations (98%+) are single proprietorships or partnerships. Under the law just struck down, Bob could buy a radio add, but Bob’s Bakery could not, even though Bob was the only owner.
The Court, during oral arguments, clearly saw this as unconstitutional. The problem is there is no legal way to distinguish between Bob’s Bakery, and Ford Motor. In fact the justices spent considerable time arguing whether there was a way to constitutionaly distinguish between a small 1-2 owner business and a large “mega-corporation” and ultimately came to the conclusion that there was not.
> ALAN M: My point is that because we are divided, we don’t want government making that decision. The court decided that Congress could not make that call without amending the Constitution.
Huh? The majority in this opinion expressly overturned a Supreme Court precedent, something Roberts claimed at his confirmation hearing he did not find appropriate. Anyway, what you’re saying is tantamount to arguing that, because a bare majority of Supreme Court justices are at least for the moment acting inconsistently, corporations should be allowed to do whatever the hell they damn well want. There is no need to amend the Constitution to fix this.I suppose we could, if the democracy survives long enough, merely wait until a rational Supreme Court re-emerges, but then when they fixed this I’m sure right wingers would immediately decry their “activism.” Giving corporations carte blanche in campaigning. Nope, no activism there!
> MARK HORNING: Under the law just struck down, Bob could buy a radio add, but Bob’s Bakery could not, even though Bob was the only owner.
This is a red herring. Very few small businesses have the means to buy campaign ads on a scale large enough to be noticed by voters. In that, they are like individual voters. This is about big bucks. If you don’t have enough cash to punch through the background noise of our mass media, you’re not part of the problem. In any event, as you yourself pointed out, Bob could have bought his ad individually, and so his rights were preserved. I suppose you could insist that Bob, and all corporate executives and their corporations, legally exist as TWO voices apiece. Meaning they outnumber you or me, unless we incorporate, but even then we are absent equal resources.
By the way, the constitutional guarantee of free speech is NOT a guarantee that the speech will be disseminated, much less heard. Which, again, is what this case was about. Corporations in effect were granted the right to use their market power and wealth to drown out their adversaries.
You know, in more gentile, egalitarian and thoughtful societies, they passed around a conch shell, or its equivalent. Giant institutions will now be legally able to own the biggest and best conch shells. Put one up to your ear and listen: you can hear the crashing surf as a tidal wave of cash rolls in right now!
Seeing as this is a done deal until the next constitutional convention, the most interesting points I’ve seen out of Blogistan on this (it was either Matt Yglesias or Washington Monthly) are that the likely beneficiaries of this are:
1. Media outlets, because there are a finite number of ad hours a day, even with six hundred cable channels, and that will bid up the cost of air time in election years.
2. If you are a foreign private or state-owned corporation with a domestic subsidiary you suddenly just got a license to go fishing in American politics. For example, there is now nothing to prevent Hugo Chavez from running ads against American politicians he sees as hostile via Citgo.
#121: “Under the law just struck down, Bob could buy a radio add, but Bob’s Bakery could not, even though Bob was the only owner.”
And that’s exactly as it should be. Bob, an individual, could buy an ad expressing his beliefs. Likewise, Bob could join with others who share his beliefs in some form of group and that group can then buy an ad that supports the members’ political beliefs. But Bob’s employees in the bakery may not share Bob’s political beliefs; in fact, they probably mostly don’t. And Bob’s shareholders, if it’s not a private corporation, don’t necessarily share Bob’s political beliefs, and yet have no say if Bob, the sole owner, decided to buy an ad through his business. So Bob using his bakery to pay for a political ad is not an example of free speech. In fact, it is a potential surpression of free speech of the members of the corporation, both employees and shareholders (who are sometimes the same people.) It is an unethical use of Bob’s business — taking from the company to support his personal agenda.
A corporation is not an individual or a group of individuals. It is a business arrangement, a legal contract. Business arrangements, whether on a large scale, like Ford, or a small scale like Bob’s Bakery, do not have rights. The individuals who make the business arrangements do, and those individuals’ personal goals should not be confused with the goals set forth for the business arrangement, which is what the court did.
Businesses already have a form of speech — it’s called lobbying and they spend a lot of money on it and they’re very good at it. It is a type of PR expense by which they can promote the image of the company that is desired to politicians. So this ruling didn’t so much as change the system as jack up lobbyists’ prices and make it more resistant to challenges and reforms.
But businesses are run by people and people hold different views. As we’ve seen in the bailout, the people who run the company may not make decisions that are in that company’s best interest financially or strategically. By taking off the limits, the Supreme Court has increased the potential for an employee of a company to hijack the company’s resources for private gain over the company’s best interests. It doesn’t give companies free speech; it gives those who control the companies’ accounts at any one time greater influence, and increases the chances of embezzlement as well.
Sorry, on the shareholders, I meant Bob, the CEO, not Bob, the sole owner. :)
#121 Mark – Under the law just struck down, Bob could buy a radio add, but Bob’s Bakery could not, even though Bob was the only owner.
I don’t have a problem with that. There are plenty of things that individuals can do and businesses, even individually owned businesses, can not. Bob’s Bakery can’t get married, get a driver’s license, aquire citizenship, go to jail, run for public office, be drafted, or vote, but Bob can probably do most of those things. The right to vote is probably as important a right as the right to free speech, but I don’t think that anyone would advocate that businesses should have it (yes, the Constitutional language is very different there, but does anyone believe that it should be some other way?).
Mark @121 – sole proprietorships and partnerships are not corporations. I don’t know where you got the 98% figure from – perhaps you meant to say that most business are sole proprietorships or partnerships?
ravenshrike @114, what you typed was an incomprehensible linking of taxation and First Amendment rights. Maybe you got ‘taxation without representation’ in there somewhere, but I’m puzzled as to how you arrived at the conclusion that free-speech rights and taxes depend on one another.
@katg – YES! What you said! I have worked at a company who’s owner had political views I most definitely did NOT share, and I would want no part of, even indirectly.
Don @9: It seems to be the new (or now newly-official) thing — “One dollar, one vote”.
Oh, thanks, now I’ve had Johnny Clegg singing in my head all day:
Here is the constitutionally sound fix: tax all contributions given over $10,000 (or any arbitrary number) at 50% (or any arbitrary percent).
So corporations and unions and such will still be able to run ads, well they have been anyways.
I love how your solution to it is tax it. Because giving the government yet another revenue stream to become dependent on is a GOOD idea. Although I suppose it could replace falling cigarette revenue since that’s being legislated out of existence and of course they have no clue where the money to support the programs those taxes were used for should come from.
Media outlets are corporations too.
The real problem here is, there is no equivalent opposition.
Maybe it’s time to stop fighting this idea of the corporation as a “person” with rights and start emphasizing the responsibilities a citizen has. In other words define a mechanism by which corporations can be made to suffer penatlies equivalent to imprisonment and the death penalty if they break the law. Start specifying fines proportional to the net worth and income of an offender (as with speeding tickets in certain European countries), rather than just fixed amounts.
More like one vote for every piece of stock that they have sold — that’s only fair, isn’t it?.
With all due respect guys, I’m pretty okay with the ruling. Before going all splodey about it, I think one ought to consider the fact that media outlets, publishers, and what we generally consider to be “the press” (e.g. NYT, WAPO, AP, etc.) are all corporations. If first amendment rights don’t apply to corporations, then the government can start banning books published or sold by corporations, censoring newspapers published by corporations, forcibly canceling TV shows aired by corporations, and generally doing all sorts of things that are considered to be self-evidently Not Okay, but would be legal were the court to rule otherwise.
Look on the bright side.
This could form the basis of a short story set in 2018 where corporations rule.
Because the people are ruled by the corporations and voting is worthless they could run a violent game involving rollerskates or cannon or something to distract the masses and illustrate the futility of the individual – the kicker being that one guy manages to stand out playing the game.
Could even make a film (or 2!) out of it :)
Oh, hang on……………
Did you read the opinion?
Not all the press are corporations, actually. And the press, corporations or not, are already protected by the First Amendment under the free press part specifically for them, which distinguishes them from other companies. Which is why the government does not ban books or t.v. shows (although politicians occasionally rumble about doing so for the cameras.) The First Amendment applies to those who are actually engaged in the press, not Ford or Goldman Sachs. If they had ruled that corporations did not have the right to buy politicians under free speech, it would have effected the press not a whit.
But they went the other way, and while this is bad, it mostly means that corporations will have to do fewer tricks to disguise their funding of politicians than they had to before. And some corporations are in fact complaining about the ruling because it means politicians will be more pressured to bug corporations for political donations and sponsorship. The big windfall of the ruling is for the lobbyists, who soak corporations, politicians and voters. The lobbyists who run most of the tea party movement have been raising a fortune for Republican candidates and themselves off of it. I can only imagine how much more they’re going to make after this ruling.
Well mythago, he clearly read the transcript of the position the government was arguing given that that was the exact position the government took if the books were political.
I wrote a novel very much inspired by this peculiar legalistic idea that a corporation should be regarded as a “living person”.
If such a person walked among us, what sort of man would that be?
(Hint: Not a nice one.)
Shrike@123: Yes, I really envy the politician who runs on a platform verifiably financed by Venezuela or China or Saudi. The good part is, their opponent as a gentlesophont will be honour-bound not to call people’s attention to it! And the sheer bad form of such an act would, of course, guarantee the financee’s success.
A.R.Yngve@145: In popular culture at least, the word for a person who behaves like a well-behaved corporation would indeed be ‘sociopath’. This suggests to me that it is not the kind of actor that needs any privileges unavailable to embodied humans. Those are the ones which need curtailing toot sweet – most especially, limited liability in tort.
Ron@117: I don’t get your application of Gresham’s Law here. You seem to be assuming that all communications channels are, and remain, equal. This only occurs if people are restrained, as in a true Gresham situation, from discounting the ones that are debased by a large flood of crap. In deciding to discount channels lousy with corporate blah, what is to stop the targets making that decision? Direct coercion, as in the classic case of bad legal tender driving out good? Nah. Information costs? How does allowing direct rather than laundered corporate speech increase these, eh?
True, Joe and Josie Sixpack may not apply the correct rate of discount. They probably won’t. And if they have no reason to care, because the political class is forcibly substituting its judgement for theirs, they don’t even have any incentive to take the trouble to get it right. They have plenty enough on their plates which they can act on!
Were the political class to be wholly made up of virtuous progressives fighting the good fight against the sociopathic myrmidons of Big Money, this would be bad news enough. Actually, it would be too bad even if it were dominated by guys like me, who dislike and distrust Big Money for reasons I take to be largely disjoint from yours.
But if you are worried that the political class largely is Big Money with a funny hat on, or at the best has a pervading tendency to take its shilling, then trusting it to regulate communication in the public interest is actively doolally.
I’ve already suggested that going directly for the most abusive corporations is one doable counter. This part of the discussion highlights another: populist attacks on whole classes of communication channels inasfar as they become blatantly polluted. This will give the channel owners pause as well – inasfar as the FCC allows them to take any notice of customer opinion. Darn that dirty deregulation! But people still can’t be legislated into giving up those advertiser-desiderated eyeballs.
There are loads of ways to resist a bunch of corporate executives taking over the country by cunningly being Very Loud Dogs. Demanding that their bought merchandise be given even more power to regulate who is allowed to speak to the lesser folk, and how and where… does not strike me as the optimal strategy.
A.R.Yngve: He’d be a Randroid.
As far as I understand, this ruling basically returns the laws governing contributions to what they where before McCain-Feingold.
The same laws under which Kennedy, Johnson, Carter, Clinton and your pick of whatever Liberal minded President was ever elected.
So left-leaning folks have a problem with this exactly why? Because folks who run businesses, who actually produce, you know, tangible things we actually need, might view the left as hostile to what they do and might tend to contribute more to the center or the right?
And for the record John, I respect you as a person and as an author. While we may disagree on many things politically, you have always struck me as a reasonable person with whom I would gladly share the beverage of your choice. So please don’t take this as disparaging you in your own house.
John McCain is left leaning?
Pro-campaign finance reform isn’t left or right leaning. It’s authoritarian leaning.
As for the people arguing that corporate personhood is a bad idea, well, you’ll have to travel back in time several centuries to kill the people who originally allowed it to become part of English common law. Then you’ll have to kill the drafters of the 14th amendment, cause they meant to have the word person refer to both legal and natural person, as argued by one the drafters before the SC in 1885.
John McCain is an authoritarian?
Gray Woodland: You ask about my application of Gresham’s Law here. I think the analogy applies, for this reason:
This isn’t about speech, it’s about money. Gresham says bad money drives out good money. Speech is now equated by the Supremes’ decision with money. Since there is a finite market for speech, with some outlets far more efficacious than others, it stands to reason that people who wish to be heard loudly and who have lots of cash will obtain early or exclusive rights to the best outlets. Indeed, many corporations already are vertically integrated in the media industry and OWN these outlets.
Therefore, I expect “bad” speech (i.e., corporate, non-entity speech) to drive out “good” speech (speech uttered by citizens).
Corporations typically use advertising and marketing to belittle the competition. In this case, when they have decided to flood the media with their campaign or political messages, they will begin to perceive the competition to include, and perhaps even largely be composed of, individual citizens with a varying opinion. They will seek to overwhelm these viewpoints — not always, not always successfully, but with great potential impact.
Finally, someone here mentioned that this isn’t so bad, because we’re just back to where we were before McCain-Feingold. Ah, but in the intervening years, the world has changed. Media companies have become more concentrated and more vertically integrated. Other corps have become wealthier and more unitary-minded. The populace as a whole has become less wealthy. The media industry has loosed itself of most regulatory reins compelling fairness and the sharing of public resources it has otherwise squatted upon.
No, it’s not the same today. It’ll be worse. End of the democracy? Perhaps an overstatement. But why should we be forced to wait and find out?
Josh Jasper at 146 asks:
and then in 148 asks:
Is the Pope Catholic?
McCain is to the left of … Well, Michelle Bachmann. But I don’t see him as particularly more authoritarian than the rest of the GOP. I’m bemused how anyone from the GOP who’s opposed to the SCOTUS decision is suddenly a liberal fascist.
Is Jonah Goldberg writing the script for this?
Interesting. There are apparently quite a few people who find it hard to understand that one’s political beliefs are rarely all within the same category. On speech and the ability to conduct it as one sees fit, McCain is indeed authoritarian.
ravenshrike @ 152,
Indeed.
Josh Jasper @ 151,
Would you care to dispute Jonah Goldberg’s documentation of Fascism as an outgrowth of Socialism which in turn was an outgrowth of Progressivism?
Rodney, I will leave it to our host to dispute that, as he quite persuasively did in a post in January 2008.
Professional historians with doctorates who specialize in the study of fascism have done a much better job than I care to repeat here, and it’s getting off topic to do so.
So if this is the new greatest threat to the Union will our “representatives” in Congress be up to the task of legislating the necessary disclosure information that now needs to be appended to every political ad?
The disclosure standards are still in place. Which means instead of Sponsored by [Insert cunningly crafted 527 name here], you’ll get Sponsored by Pfizer.
> … will our “representatives” in Congress be up to the task of legislating the necessary disclosure information that now needs to be appended to every political ad?
While the Supremes left intact the requirement that sponsors of commercial campaign messages disclose themselves, that’s pretty doggone useless given current standards, because the disclosure is brief and fleeting. I surely do think Congress could amp up this disclosure requirement, since the court has put no parameter on it. Some have suggested that CEOs ought to be made to appear in all such advertising, naming themselves and their corporate title and saying they personally approve the ad.
Ironically, when conservatives were going after labor unions a few years back, they insisted it was unfair that member dues were being used for political purposes without a vote. Well, what’s sauce for the goose, I say. Let Congress now require corporations to put their campaign advertising schemes to the approval of stockholders, whom, after all, own the company. I understand that this will be only a slight hindrance — just look at how executives already game proxy votes for electing board members. But it will slow them down and at least offer stockholders a chance to argue the matter in public.
Josh Jasper,
Michael Bellisiles…
Michael Mann…
Ron @ 149: Okay, I understand your rationale for citing Gresham’s Law now. I already said why I don’t think it applies, and evidently neither of us are going to convince the other, so I shan’t labour the matter further.
I see a fundamental difference in our approaches here. One reasonably morally-neutral aspect of this is that you seem to hold that decentralized societies of individuals are at their most vulnerable to capture by concentrated interests; whereas I reckon that a power-node in a hierarchy over them is a more obviously dangerous point of attack.
It is an open question just how my intuition of trusting the plebs, and your intuition of trusting a tribune, vary in effectiveness with circumstances. I’ll agree with you on one implicit point: if plebs try to beat pats (plutes?) by symmetric tactics, they are screwed six ways to Sunday. But I hope nobody – except, obviously, the Official Pluto Fan Club – would seriously suggest they do that.
I think I might call this one a day now, partly to avoid abusing our host’s patience, and partly because this conversation is giving me some ideas I want to stew over for a bit.
there is only one saving grace to this whole thing and it ain’t gonna be pretty. i predict this:
those stupid, socially ignorant, heartless bastards on WallStreet are gonna get a civil war in this nation within 20yrs. and it ain’t gonna be pretty.
they are sealing their own fate…and they don’t even know it…
problem is, they are gonna bring all of us down and then some other nation is gonna step in and sell off what is left of American in a world flea market.
……………………………………..
this is what has happened to every over bloated nation through out history whenever greed grows unchecked and the fat cat pops…
that move by the Supreme Court has just set the piece in play, those domino’s are on their way…
Per usual, Stevens’ buffoonery ceases to amaze me, his dissent was one giant non-sequitur.