Summary: I believe that Americans today can operate at the same level as did Americans at the founding. In the tradition of the Federal Papers, here is a discussion of the latest and momentus Supreme Court decision. I strongly recommend that all Americans read it, irrespective of your political views. Such actions will by themselves put us on the road to reforming the Republic.
It’s difficult to accurately describe the horrific consequences of the Supreme Court decision in “Citizens United vs. the Federal Election Commission”. I oppose most limits on election spending, but this goes to an extreme in the other direction. It’s the equivalent of empowering free speech by allowing people to falsely scream “fire” in a crowded theater. Conservatives have justified it by just making stuff up about it, the usual form of dialog in 21st century America. This decision does not mark the end of America, but will make the task of reform much more difficult.
The partially dissenting opinion by Justice Stevens clearly describes the situation. Before reading that, here is some gallows humor from Matthew Yglesias’ website (where the comments are usually better than the posts):
Njorl: “If a company incorporated in the US over 35 years ago, it can run for president?”
Why oh why: “If you think it is scary, wait until the Roberts court decides the Second Amendment also applies to corporations. The Goldman Sachs militia will roam the streets of DC looking for Sanders.”
mpowell: “It is ironic how badly American democracy has fallen behind the developed world. When you explain to Europeans how campaigns are funded in the United States, they frequently do not believe you. It’s quite the dark comedy here.”
Update: trenchant analysis from Werther (pseudonym of a Northern Virginia-based defense analyst, one of the best): “High Court Decrees Existence of Corporate Übermensch“, Electric Politics, 22 January 2010.
Today’s main feature
Excerpt from the opinion by Justice John Paul Stevens, with Ginsburg, Breyer, and Stotomayer joining. Links were added, not in the original. I have omitted some of the citations.
Opening
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for profit corporations and unions to decide this case.
… The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209–210.
Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including …
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question.
Scope of the Case
The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. …
III.
The novelty of the Court’s procedural dereliction and its approach to stare decisis is matched by the novelty of its ruling on the merits. The ruling rests on several premises. First, the Court claims that Austin and McConnell have “banned” corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker’s identity as a corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment tradition and our campaign finance jurisprudence. Each of these claims is wrong.
The So-Called “Ban”
Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate speech. Ante, at 45. Indeed, the majority invokes the specter of a “ban” on nearly every page of its opinion. {citations omitted} This characterization is highly misleading, and needs to be corrected.
In fact it already has been. Our cases have repeatedly pointed out that, “[c]ontrary to the [majority’s] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending.” Austin, 494 U. S., at 660; see also … For starters, both statutes provide exemptions for PACs, separate segregated funds established by a corporation for political purposes. {citations} “The ability to form and administer separate segregated funds,” we observed in McConnell, “has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view.” 540 U. S., at 203.
Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of corporations avail themselves of this option;29 during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.30 Administering a PAC entails some administrative burden, but so does complying with the disclaimer, disclosure, and reporting requirements that the Court today upholds, see ante, at 51, and no one has suggested that the burden is severe for a sophisticated for-profit corporation. To the extent the majority is worried about record to show how substantial the burden really is, just the majority’s own unsupported factfinding, see ante, at 21–22. Like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form. The owners of a “mom & pop” store can simply place ads in their own names, rather than the store’s. If ideologically aligned individuals wish to make unlimited expenditures through the corporate form, they may utilize an MCFL organization that has policies in place to avoid becoming a conduit for business or union interests.
The laws upheld in Austin and McConnell leave open many additional avenues for corporations’ political speech. Consider the …
Identity-Based Distinctions
The second pillar of the Court’s opinion is its assertion that “the Government cannot restrict political speech based on the speaker’s . . . identity.” …
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “ ‘enhance the relative voice’ ” of some (i.e., humans) over others (i.e., nonhumans). {omitted} Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.
In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
Our First Amendment Tradition
A third fulcrum of the Court’s opinion is the idea that Austin and McConnell are radical outliers, “aberration[s],” in our First Amendment tradition. Ante, at 39; see also ante, at 45, 56 (professing fidelity to “our law and our tradition”). The Court has it exactly backwards. It is today’s holding that is the radical departure from what had been settled First Amendment law. To see why, it is useful to take a long view.
1. Original Understandings
Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 1 (internal quotation marks omitted), and original understandings, ante, at 37–38, to defend today’s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment. Perhaps this is because there is not a scintilla of evidence to support the notion that anyone the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case, they would appear to cut strongly against the majority’s position.
… The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. …
Austin and Corporate Expenditures
Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation, it also overlooks the distinctive considerations raised by the regulation of corporate expenditures. The majority fails to appreciate that Austin’s antidistortion rationale is itself an anticorruption rationale, see 494 U. S., at 660 (describing “a different type of corruption”), tied to the special concerns raised by corporations. Understood properly, “antidistortion” is simply a variant on the classic governmental interest in protecting against improper influences on officeholders that debilitate the democratic process.
1. Antidistortion
The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences.
Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” 494 U. S., at 658–659.
Unlike voters in U. S. elections, corporations may be foreign controlled.
Unlike other interest groups, business corporations have been (quoting MCFL, 479 U. S.)
“…effectively delegated responsibility for ensuring society’s economic welfare … [T]he resources in the treasury of a business corporation .. are not an indication of popular support for the corporation’s political ideas. … They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.”
2. Shareholder Protection
There is yet another way in which laws such as §203 can serve First Amendment values. Interwoven with Austin’s concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind of coerced speech: electioneering expenditures that do not “reflec[t] [their] support.” 494 U. S., at 660–661. When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill. Those shareholders who disagree with the corporation’s electoral message may find their financial investments being used to undermine their political convictions.
The PAC mechanism, by contrast, helps assure that those who pay for an electioneering communication actually support its content and that managers do not use general treasuries to advance personal agendas. Ibid. It “allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members.”
For more information from the FM site
Reference pages about other topics appear on the right side menu bar, including About the FM website page. Of special relevance to this post:
Posts about the Constitution:
- Forecast: Death of the American Constitution, 4 July 2006
- The Constitution: wonderful, if we can keep it, 15 February 2008
- Congress shows us how our new government works, 14 April 2008
- See the last glimmers of the Constitution’s life…, 27 June 2008
- Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
- A report card for the Republic: are we still capable of self-government?, 3 July 2008
- Another step away from our Constitutional system, with applause, 19 September 2008
- What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
- Are Americans still willing to bear the burden of self-government?, 27 March 2009
- “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
- “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
- More about the tottering structure of the American political regime, 17 August 2009
Afterword
Please share your comments by posting below. Per the FM site’s Comment Policy, please make them brief (250 word max), civil and relevant to this post. Or email me at fabmaximus at hotmail dot com (note the spam-protected spelling).
Ouch!
FM: “It’s the equivalent of empowering free speech by allowing people to falsely scream “fire” in a crowded theater.”
Maximnus, this is EXACTLY what I thought when I heard the SCOTUS decision an hour after publication. It is that simple!
I do not know who you are (I suspect there are at least “3” of you, FM due to the depth and width of your blogging)and in spite of your incessant “hopefulness”, I have great respect for your intellect and values. You are a true giant.
However, due to the very difficult nature of overcoming the consequences and Law as fact of this SCOTUS decision, I simply offer: IT IS OVER, folks! Go enjoy your kids, eat well, exercise, sleep long and well, find meaningful ways to work and give. You will not recognize America in 3-4 years.
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FM reply: One inning is over. The game is not over. America is not over. The defense never rests. Whatever America looks like in 3 years, in 30 years it will be much stronger. We need only make it so.
Also: there is only one of me. The FM website is a solo project, launched and guided by the team of the Defense and National Interest website. R.I.P. (the website, that is; the team is doing fien).
Our next President … J.R. Ewing. OH wait, been there, done that :P
This appeared very distressing to me at first as well; it seems as if the moneychangers have purchased the temple and are in the process of throwing everyone else out.
However, in a post titled “Is the Supreme Court Decision so Important in a Web 2.0 World? Can Corporations Compete in ‘Pull’ Media World Anyway?” Juan Cole makes some very good points about many mitigating factors and trends that could at least soften the impact of this. He points out that corporations don’t always agree and will advertise against one another; that some campaigns will cause them to lose customers, and change their behavior; that some efforts will simply be rejected by the populace on the basis of simple self-interest, despite the money spent; and that the reach and credibility of propaganda placed in conventional channels such as newspapers and television is constantly diminishing and should continue to do so.
That having been said, it may be that at this point there is absolutely no way within the current system to remove the corrupt influence of the military-industrial-financial complex on our political system. If there is such a way, can anyone suggest how?
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FM reply: As for your your question, the answer is simple. Money is not determinative. Will, spirit, intelligence are. We are not puppets of advertisements and other propaganda — unless we wish to be. We can organize freely. Elections occur every 2 years. We need no other tools.
Taken to its ultimate ridiculous extreme, this ruling could be used to bar bankruptcy on the grounds that it is cruel and unusual punishment.
Are corporations eligible for welfare (apparently, given the government behavior of the last year); how about retirement benefits when they turn 65? Can they list their employees as dependents on their tax forms?
This reminds me of the old Soviet Union that managed to get three votes in the UN by maintaining the polite fiction that Ukraine and Byelorussia were separate nations. Of course this bit them rather badly when the Soviet Union dissolved because they were already officially recognized as separate countries.
I agree with you, FM, that the people of this country will overcome this situation in time. I just hope that your expectations that they will do so legally rather than illegally do prove to be naive.
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FM reply: An easy winner for best of thread — “corporations are eligible for welfare (apparently, given the government behavior of the last year)”!
From Stevens’ dissent:
“But your honor, just because my clients are energy sucking, mind-controlling, zombie-creating vampires from outer space *, is no reason to withhold from them the rights that our republic affords to all people. Why should we hinder them in their quest to… I’m sorry, what was that you said again, to feed humanity? To feed on humanity?”
— video, “LifeForce Trailer“, LifeForce movie
Oh, and now that the conservative judges are being just as “activist” as everyone knew they would, can we finally dispense with the pretense that the US Supreme Court has ever been anything but an arena? A place of “lawfare”, in other words, where judicial activists vie for supremacy? That particular pretense, (or maybe it is really psychological projection? *), has always bothered me more than the rest of our landfill of biohazardous hypocrisies that seep into the stream.
* “Psychological Projection“, Wikipedia link. Excerpt:
Update: trenchant analysis, worth reading
“High Court Decrees Existence of Corporate Übermensch“, Werther (pseudonym of a Northern Virginia-based defense analyst, one of the best), Electric Politics, 22 January 2010 — Excerpt:
“Create an Ubermensch?” The Court has in fact created a species of Nietzschean Übermensch: a non-human human endowed with the strength of many people and theoretically immortal. [1]
Nope already existed, in full glory, operating with great precision and impervious to the “little guy” and simply codified it in a new way. Nicely written article with some fun forays into a priori analysis.
He offers:
• Corporations are naturally endowed with personhood (the a priori assumption, and one that sounds suspiciously like parallel reasoning on abortion);
But he is too kind. The Justices KNOW better; Corps are not in any sense FULLY endowed with Personhood, rights, duties and obligations. (NOTE the recent findings by DOJ on PHIZER: Along with this admission of guilt for committing a felony crime, Pfizer is paying well over $1 billion in criminal fines, plus another $1 billion or so to resolve civil allegations against its fraudulent marketing practices. In all, the multi-billion dollar settlement is the largest in the history of the DOJ. If a person had been so convicted would he be out on bail, out on the street? Of course not and so where is the CEO and Chmn of Board of Phizer?)
They simply saw an opportunity to establish a ruling that would take years to even begin to mount a challenge, legally. And they TOOK IT! What is so laughable is that we hear many parties equate Free Speech with Money. And then talk as if they know what the “Founders” had in mind. The delusion (of self and others) of the big brained Human is what is fascinating and couple that with a cognitive disconnet from reality and voila: AMERICA, Incorporated. What will it be — JETS or Indy. Favre or Brees?
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FM reply: About Phizer, see this true-crime article about serial law-breakers who receive nothing bug taps on the wrists: “Pfizer Broke the Law by Promoting Drugs for Unapproved Uses“, Bloomberg, 9 November 2009 — Of course, the health care bill was written to protect or even grow their profits. Crime does pay, and well.
This check doesn’t balance.
The idea of likening this to allowing fire to be yelled in a crowded theater is interesting. When it comes to things political, who is qualified to be the arbiter of whether or not there actually is fire in the crowded theater? What if we were talking about a presidential candidate who was trying to lie us into war? Would you be happy with the restrictions on speech 30 days before the election in this case?
FM : “As for your your question, the answer is simple. Money is not determinative. Will, spirit, intelligence are. We are not puppets of advertisements and other propaganda — unless we wish to be. We can organize freely. Elections occur every 2 years. We need no other tools.”
Precisely. And isn’t that the point of the ruling?
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FM reply: Your first paragraph grossly misrepresents the nature of this ruling. In fact, your statement has almost no relevance to this ruling. I suggest you read Justice Stevens analysis, as you appear to be getting information from folks who either know little about it — or know much, and prefer to lie.
As for your second point — just because we can if necessary overcome any obstacle, that does mean we should ignore those who create more obstacles. Isn’t this obvious?
Corporations do declare their employees as dependents. Their salaries, office supplies, etc. are legitimate business expenses and thus can be taken off the top of their income statement.
Let’s say some damaging information comes out about the leading candidate 25 days before the general election. Not everyone reads the internet. You can’t count on the broken ass news media to report it. Ordinary like minded citizens (i.e. the little people) have the right to pool their resources to advertise their concerns. Is this possible without incorporating?
The influence of registered lobbyists is far more destructive to the republic than purchased ad time. A political ad can’t take your representative out to lunch or a quick 9 to try and buy his vote. No commercial can convince people to purchase a giant douche/turd sandwich.
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FM reply: Is everybody getting their news about this from right-wing propaganda? Please read the article, as this is discussed at length. The question is the role of for-profit corporations, not non-profits (“little people have the right to pool their resources”).
In California at least, it is quite a lot easier for us “little people” to incorporate than to jump through the hoops required to be allowed to run “issue ads” and contribute to political campaigns in compliance with pre this decision law. I would assume that to be the case in other states, as well.
Also, lots of “little people”, as in simple, regular people who get up and go to work in the morning, are incorporated. From donut stands on up, there are millions of incorporated entities in the US. Meaning, at a minimum, millions of CEOs for whom political speech have now become incrementally easier.
Many more little people do important jobs for incorporated entities, that in turn needs to be responsive to valuable staff for recruitment and retention purposes. Despite what stuck in Dickens’ fantasy land class warriors may find it convenient to believe or propagate, most people have a choice of where to work. And most corporations with any hope of amassing anything meaningful to run ads and make contributions with, have a need for qualified labor.
If anyone have the inclination, look into how representative each of the following populations are of the general population:
1) Those with some influence on ad and campaign spend at an incorporated entity,
2) Those with influence at an organization like Citizens United,
and 3) the union of 1 and 2.
My guess would be to rank the “representativeness”, high to low, as 3), 1), 2), but any ordering not starting with 2 would indicate the new law is an improvement over what preceded it.
An objection could be that a few incorporated entities are so big, and that their decision making is concentrated in so few hands, as to render the above mute. As in, Lloyd Blankfein at Goldman can singlehandedly drive as much spending as a million donut shops, with no concern for the wishes of neither shareholders nor employees.
But for this to hold water, one has to believe Goldman does not have a similar advantage when it comes to setting up and funding type 2) organizations, which I somehow find a bit unrealistic. I would actually be surprised if it isn’t the other way around, where requiring an intermediate step between the donor and the campaign disproportionally favors the big guy, as that intermediate step has a large fixed cost component, in addition to helping obfuscate who is spending what on what.
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FM reply: I don’t see how this relates to the Court decision under discussion, or how it relates to the objections Justice Stevens gives (I doubt you have read the excerpt, or anything accurate about the decision). Most of this is irrelevant. I’ll discuss just one point, where you say something specific.
“millions of CEOs for whom political speech have now become incrementally easier.”
Nope. The Census shows that there are aprox 6 million businesses with employees in the US. C corporations filed only 2.5 million returns in 2008 (per the IRS). The vast majority were tiny (it includes RE conduits); many are subsidiaries of other corporations. Most were from small businesses where the owner could just as easily contribute from his or her personal checkbook (or one of the other simple means available, as Justice Stevens explains) as use the C corporation’s funds. This ruling affected in a meaningful way the roughly 18 thousand large businesses (usally defined as those having over 500 employees).
What a bunch of scaredy cats!
DC is already beyond corruption. They are corrupted. This probably won’t change a thing.
I am not so sure that the little people are any smaller now than they were last week. Ilya Shapiro over at the CATO Institute made a fair point a few days ago that needs to be rebutted by any who claim to the contrary:
Be this constitutional or not, this ruling changes little. The average man has been knocked out of the ring, for sure. But attributing this to Citizens United is lunacy.
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FM reply: This is not impressive logic, IMO.
(1) “with no evidence that those states have more corruption — or a more unequal ‘political playing field’ — than states that strictly regulate”
The absense of analysis equals proof? You must be kidding. Cub Scouts would find that illogical.
(2) “The average man has been knocked out of the ring, for sure. But attributing this to Citizens United is lunacy.”
It’s lunacy because the ruling was last week. You’re misstating what I said, which is that ruling makes things worse.
Glen Greenwald makes a number of excellent points on this decision: “What the Supreme Court got right“, Salon, 22 January 2010. One example:
The notion of a corporation having rights similar to a person is disturbing, but that is not really what this particular case was about. Certain corporations were previously granted more 1st amendment rights than others. Now that is no longer the case. Are we any better or worse off as a result? It is hard to say.
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FM reply: Sure, if improvement means expanding the number of for-profit corporations who can manipulate elections. Why does that makes sense? Why do conservatives so often shill for big business? (All together now: “the Cossacks work for the Czar”)
Greenwald says something I regard as surprisingly dumb for such a smart man. Things can always get worse, despite his lack of imagination. (Note his characterizing opponents views as “apocalyptic claims”, a strawman attack to decieve the simple)
Pehaps most importantly, election finance resembles health care, with America baffled by problems solved (in rough form) long ago by other nations. Today American exceptionalism too often means that we’re expectionally dumb. Not just unwilling to learn from others, but too ignorant and insular to even bother studying solutions of other peoples.
Herodotus traveled around the world of his time to study other peoples and learn what was best about them. Perhaps eventually we’ll do the same.
It seems to me an historic decision.
Next step: political rights of vote = shareholders’ right of vote.
No more one head/one vote, but n political shares/n votes.
Political shares = certifiable income/assets?
From Greenwald quote in FM reply #16:
I keep reading statements like this on the internet, or hearing them in conversation “who cares? It can’t get worse”. They always amaze me. Whenever I read/hear them, they suggest either that I am reading someone who lacks imagination, or is protecting their own psyche through assumed blindness, or perhaps is simply lying. Seriously though, this is not rocket science. I’ve known since I was a kid that things can always get worse. One should take that as axiomatic.
I tend to lean on the “self-protection through willful blindness” theory. Some things really are so horrible that our psyches automatically protect us from seeing them. It takes an effort to pre-empt this valuable self-protection. Children sometimes make-believe they can repel bullets. Teenagers sometimes believe speeding cars can smash right through fences. The crappiness of adulthood is that we understand these things to be fictions.
That “Werther” guy pretty much said it all. THx for link.
The problem isn’t who can spend more influencing elections. Huge sums are spent because the stakes are so high (now in the trillions — that’s 12 zeroes). K-street gets a 200-1 return on their campaign spending.
Drain the swamp. Reduce the control of the feds over our lives (i.e., minimize the federal budget, devolve power to the states and localities) and then see who still wants to pay.
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FM reply: Perhaps. But making the government smaller does not make it less corrupt. For example, today the State and esp local governments are (in general) more corrupt than the Federal government. And our far smaller 19th century Federal government was corrupt to the core. What a smaller government does is minimize the damage this corruption does to the nation. Clearning up the government, to make it more like Singapore’s (for example) would be nice, but require massive social changes beyond my understanding or imagination.
Ave, Fabius. This is a most interesting thread for a most interesting and disturbing SCOTUS decision. As Werther insinuates, let us embrace the suck. Here is why.
If as the SCOTUS decision indicates, corporations are truly “persons” for more than mere Fourteenth Amendment purposes, let us also consider them persons capable of being held accountable for their actions with respect to the State. If their actions undercut the security of the Republic, they should be held accountable for their acts, even if done through negligence instead of intent; all that changes is the punishment.
As it is known, the actions of “individual” and “collective” corporate “persons” directly caused a severe compromise of Republic security during the crash of 2007-2008; one reasonable estimate of the damage that I have seen bantered about is $12.7 Trillion. That number is approximately 250 times the direct materiel damage caused by Mr. bin Laden on 9-11, according to my sources inside the NYS Division of the Budget. Granted Mr. bin Laden purposely acted, and has been treated as such.
But I ask of our Senate and Congress and SCOTUS and President, as should you and all the “little people” (many of whom suffered from those corporate personal acts), are not the actions of the identified corporate persons who caused this materiel damage to the Republic worth prosecution for negligent crimes against the State? Let us test the new limits of corporate personage, and bring charges against these alleged perpetrators.
If found guilty, let us also punish them according to existing sentencing guidelines for persons who advertently or inadvertently betray their Republic. In this case, the existence of a globalized economy works on behalf of the Republic. It could sentence a corporate person to – say, 10 years imprisonment. What that could mean to the corporate person is that it could not conduct business – marketing, sales, manufacturing (hah, least threat of all!), etc – in this country, including all virtual elements as transmitted across or originating in this country for the period of sentence.
Now if found guilty of deliberate damage, the corporate person could be sentenced to death, in which case the Republic confiscates ALL property of the corporate person, including and especially information, and declares the specific corporate person dead for all time in all places (one can’t resurrect a derelict corporation as is done easily under current process.)
What say you, Fabius? Worth a try?
Vale,
Publius Cornelius
@21,
Drain the swamp. Reduce the control of the feds over our lives (i.e., minimize the federal budget, devolve power to the states and localities) and then see who still wants to pay.
While I’m generally in favor of decentralization of power, you seem to believe that state and local governments would be harder to corrupt.
As a first-order approximation, take a look at this list of multinational corporations by revenue compared to total tax revenues for states (and local governments within that state). and tell me who’s going to be pushed around by whom. Hell, just Exxon-Mobil, Wal-Mart and Toyota taken together take in more revenue than all 50 states combined.
What makes the Federal government such an important target is that it’s one of the few institutions with the power to actually stand up to large corporations if it wants to. Hence the vital interest in ensuring that it doesn’t. “Neutralizing potential peer competitors” I suppose you could call it . . . Devolve the power to states and the action will move there, but with more opportunities for playing divide-et-impera.
Citizens United is a wealthy NON-PROFIT corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for profit corporations and unions to decide this case.”
The quote contradicts itself: first it says there is no ban, then it details the ban. How is the promogulation of free speech, political speech, by a non-profit corporation, “profoundly misguided”? I find justice Steven “profoundly misguided”!
Or are we to beleive, that political speech must be censored, for the greater good? The ability to speak WHEN one wants to, HOW one wants, using money collected from like minded folks, to add to the punch, is the very bedrock of freedom. Or are the official state networks, the only ones allowed, this power, above the citizen? Are we to beleive, that some corporations are more equal than others?
If one thinks, that this decision gives too much power to for-profit corporations, than we can work on that. But, if it is better, to let a guilty man go, to protect the innocent man, then, also better, to let some perhaps corrupt speech be, to protect those who would also speak!
This decision stikes a great blow for freedom, for free speech, for the very soul of our great nation. Sadly, this may be why it disturbs some so.
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FM reply: The primary point of dissenting opinion — and esp the sections I quoted — concern the treatment of for profit corporations. I dont’ understand the point of your rhetoric, however pretty. Nor how it constitutes a rebuttal to Stevens’ specific objections. Your comments are, like the majority decision, little but glittering generalities.
FM: “About Phizer, see this true-crime article about serial law-breakers who receive nothing but taps on the wrists: “Pfizer Broke the Law by Promoting Drugs for Unapproved Uses“, Bloomberg, 9 November 2009 — Of course, the health care bill was written to protect or even grow their profits. Crime does pay, and well.”
Well, this wins the award, for worst link used as an example to buttress an argument!
Hey, you know what? The CRIME, if you can call it that, is that doctors, are using medicines, that are marketed for one illness, to treat, another. Imagine! DOCTORS, using MEDICINES, to TREAT PATIENTS, who are ill, and sick, and dying, and in pain, when those medicines are UNAPPROVED, by the GOVERNMENT! HOW DARE THEY!! THOSE BASTARDS!
God bless Pfizer, and may God keep them safe! You know, it’s not Pfizer, that threatens my free speech, and it’s not Pfitzer, that comes between myself and my doctor, when he wants to proscribe a drug that may or may not work. THE GOVERNMENT DOES THAT. Who is the government, to tell me, what medicine, I can have? Because it’s not listed on some official LIST? I will make my own decisions, about what medcines I will take! At least, in a FREE country, I COULD. God damn the FDA, and God bless PFizer, and all like them. Pfizer FIGHTS for my freedoms, while others call that a crime. The crime is all on the governments side!
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FM reply: There is a large body of evidence that
(1) drug companies are encouraging doctors to use drugs beyond the scope of their approved use, the areas for which they have been proven safe and effective,
(2) doing so is both risky and often ineffective.
As for the rest … whatever, Dude.
FM: “The primary point of the dissent — and esp the sections I quoted — concern the treatment of for profit corporations.”
You cannot seperate the two. Neither could the court. If they did, they would be making law. They chose, instead, to strike down a very bad law. We have a Congress, THEY can make new law. Yeah, all that about free speech, that’s just rhetoric. Nuthin to see here!
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FM reply: You might be unable to seperate the two. Everybody else can, as they declare it every year in their IRS filings.
FM: “There is a large body of evidence that …”
Thank the Gods, we have the Great Judges, who are all-knowing, to tell us ignorant ones the futility of our quests! Need we, review the list, of drugs invented for one reason, that proved effective for another? Of the recomendations of trusted medical authorities, that turned out to be snake oil? The point is, God has granted me certain inalienable rights, that the FDA has taken away. I want my freedoms back, I don’t give a crap what anyone says. I will decisde, for myself, whith appropriate counsel, what I will take, for what., and the “authorities” can go to hell.
Still wins the award.
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FM reply: I congratulate you on your knowledge of pharaceuticals. However, there is little to say to this other than “whatever”. The rest of us will follow the laws, as enacted by our elected representatives — and insist that drug companies do so as well.
My post was not intended to relate to Stevens’ opinion, or even the decision, but rather to the “sky is darkening” because incorporated entities are now able to contribute to political discourse on an equal footing with non profits headline.
However you choose to classify and enumerate incorporated entities in the US, there are many more of them than there are entities previously entitled to contribute to campaigns. It’s not as if this decision take away anyone’s ability to contribute. All it does is, in practice, broaden the group of Americans, and American organizational forms, for whom contributing is less cumbersome. The portion of Americans involved in non profits are a tiny, non representative, minority. Barring organizations of a type many more, perhaps a majority, of Americans are already part of, from availing themselves of the same means of influence that non profits have enjoyed all these years, does not lead to anyone’s skies darkening. Except for perhaps those of nonprofit officials now stripped of funds that previously had to flow through them to be considered legitimate.
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FM reply: Unless you can present facts that contradict those from the IRS, this statement of yours is just making stuff up:
Unless by “many” you mean “large corporations”, whose size and influence dwarfs that almost all individual Americans. While they appreciate your shilling for them, they don’t need your assistance. Esp after this Court decision.
Re #23, true, but at least devolution requires corporations to divide their money and attention 50 ways. Yes, anti-corruption efforts require more than simple structural changes; we need to elect men and women who are incorruptible.
I was merely pointing out the fact that the Federal government has the most dough by far, and so attracts flim-flam men to Washington D.C. like hookers to Vegas.
#25 – Mr. Ding writes: “Well, this wins the award, for worst link used as an example to buttress an argument!”
{snip} Did you get to read the Article? {snip} Darn FDA!
Here are a few quotes that might influence your insight in such matters(but probably not):
“C.R. Bard Inc., which pleaded guilty ….”
“….Holloway admitted in a March 2009 guilty plea. ”
“…where salespeople illegally pitched off-label uses for Bextra, P&U admitted in its Sept. 2 guilty plea.”
“…………In June 2009, Holloway, 47, was sentenced to two years on probation and fined $75,000.”
“…In April 2007, P&U pleaded guilty to a felony charge of offering a $12 million kickback to a pharmacy benefit manager.”
“Thomas Farina, a Pfizer district sales manager, was convicted in federal court in March 2009 for destroying records during the Bextra investigation. Farina, 42, was sentenced to three years on probation, including six months of home confinement.”
“One reason drug companies keep breaking the law may be because prosecutors and judges have been unwilling to use the ultimate sanction — a felony conviction that would render a company’s drugs ineligible for reimbursement by state health programs and federal Medicare.”
Thank heavens a few people plead gulty to those egregious unfounded Charges! Hope everything works out for you.
From the Census Bureau it look like there are about 25 million firms in the US, and from NCCS, about 1.5 million non profits. I realize you’re fond of limiting which firms to count to only include those with 500 employees or whatever, but should you not also then apply the same standard to non profits?
I have to admit I’m shocked o see how many non profits there actually are, and that it’s not just 3 churches, Bill Gates and ACORN. But even so, short of applying some contrived value judgment by which an American’s contribution is somehow more suspect if he is an official at a corporation than at a nonprofit, I find it hard to imagine exactly how allowing not just a more prevalent organizational form, but indeed allowing both at the same time, to contribute to politics, somehow darkens the sky for more people than it brightens it for.
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FM reply: As I suspected, you not only did not read this excerpt from Steven’s dissent, but have no idea what this discussion is about. There was broad agreement on the Court about the original issue before it, which concerned non-profits. Since this is both simple and clear, my guess is that you’re getting this nonsense from uncritical acceptance of conservative propaganda. Which is sad for you and for America.
“there are about 25 million firms in the US … “I realize you’re fond of limiting which firms to count”
Just to spell it out (again), the primary point of the dissent is considering corporations to be citizens. Most of those 25 million are sole proprietorships, partnerships, or other entities not affected by this. There are aprox 2-3 million for profit corporations (aka C corps). Many of those are subsidiaries or special purpose entities; almost all are too small to be affected.
I did read the excerpt. And so am fully aware that little of what I wrote relates directly to the Supreme Court decision. If I didn’t have enough respect for the work you do on this site to read even posted excerpts, I wouldn’t be here in the first place. I’m not simply trolling the internet looking for a quarrel. Nor have I taken it upon myself to “shill for corporations”, regurgitating “conservative propaganda”, or some such.
At the same time, “darkening skies” isn’t what the decision was about either. And while you, and many others, may well be much better informed on the details of the decision itself than I am, that particular interpretation of a decision that imposes no new restrictions on anyone, but rather only removes previously existing restrictions, strikes me as not just sensationalistic, but rather flat wrong.
Also, the decision was about corporations being treated like citizens relating to the specific issue of political speech. Not if corporations are citizens, period.
Rather than refereeing Supreme Court decisions and opinions, I’m trying to look at the practical implications of this. Which is plainly to make it easier for many organizations, over which many Americans have some influence; whether as share holders, directors, employees, consultants, suppliers, customers, whatever; to include deemed to be political statements as part of their communications with their surroundings. That they could do it through more roundabout ways previously, while perhaps formally relevant, doesn’t change the fact that this decision, for some, make it legally easier. And, for absolutely noone, legally less easy. Which, again, makes the “darkening skies” interpretation come off as less well thought out than many of your other posts. At least according to my value system.
Anyway, as we’re probably the only two still reading this post, I’ll quit wasting your time on this. As my argument is essentially practical prediction, I guess we’ll see if this decision does indeed manage to make American politics and governance any more screwed up than it already is.
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FM reply: Your argument is essentially making stuff up, rather than any discussion of this post. As evidence, I’ll give another example, from your comment #31.
“there are about 25 million firms in the US”
There are aprox 100 million households in the USA of the 2008 tax year. To say that 1 in 4 runs a business is nuts, let alone that more than a tiny fraction of them contribute enough to campaigns to even care about this ruling. As of 2008 IRS filings (which link i gave and you of course ignored), 4.4 million S-corps filed returns, 3.3 million partnerships, and 2.5 million C-corps. Only the last was affected by this ruling, and the vast majority of those are too small to care.
“as we’re probably the only two still reading this post”
This post had 167 hits today.
From #32: “a decision that imposes no new restrictions on anyone, but rather only removes previously existing restrictions”
Precisely. It removes restrictions on those legal entities we know as “corporations”. Fabius’s argument, which I agree wholeheartedly with, is that the interests of corporations are not those of humans, and in many cases are inimical to humans’ interests. The corporations (really, their management and stakeholders) vast influence has now increased, while the (non-corporate) citizens’ small influence is the same.
FM, you may want to check this out from former SCOTUS judge O’Conner: “O’Connor Warns Campaign Cash May Threaten Judicial Independence“, NPR, 26 January 2010
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FM reply: Thanks for this link!
Oh well, the short term US downward trend … just got steeper.
Once upon a time elites had at least some brains. These clowns are playing Russian roulette with the social fabric … and their own position.
Any functioning society is like a spider web of relationships. Yes there are hierarchies, the rich like the poor are always with us, yes there are power centres. But providing the differences aren’t too great (translated the rich and powerful exercise restraint … or are restrained) then the web holds. Done right (as in the US for many decades) the tension between the axes can even exhibit itself as a creative tension, with the ‘web’ continually breaking and reforming in new ways. Therefore, in the best case, you get dynamic stability … not just the stability of the static. Translated: you get resiliance.
But just like any web, pull too hard in too many directions and it shatters apart and the spider in the middle falls to the ground.
One thing that amazes me is the US elites (there are mutiple centres definitely not all in agreement .. more like suspicious potentially warring Barons) arrogance. They seem to take the acquiesence of the mass of the population for granted.
I was reminded of the fragility of elites by reading (while away camping last weekend) the book 1918, the last year of WW1. How the German ‘Empire’, an autocratic society where the Prussian military and aristocratic elite ruled supreme (with some fig leaves of democracy for the proles), suddenly collapsed within months, as did the Austrian/Hungarian Empire. Gone, swept away into the dustbin of history. And both looked (and the Allies thought at the time) incredibly stable and strong. Fortunately for the societies as a whole there were people in the wings who managed to pull things together and save something from the wreckage.
Who, apart from Ron Paul and Nader, is waiting in the wings for the US? Because these ‘elite’ clowns are in a death spiral, just like the USSR ones.
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FM reply: I don’t believe that the situation is as extreme as you imply. But the trends look ugly. As for the folly of elites, the ur-text for that is The Old Regime and the French Revolution by Alexis de Tocqueville.
“Here are a few quotes that might influence your insight in such matters(but probably not):
“C.R. Bard Inc., which pleaded guilty ….”
“….Holloway admitted in a March 2009 guilty plea. ”
“…where salespeople illegally pitched off-label uses for Bextra, P&U admitted in its Sept. 2 guilty plea.””
Well, my point is not that they were charged with a crime, but that the crime itself, the law that calls this activity a crime, is false, bad law.
Please explain, what is “wrong” with using a drug, for something other than it’s intended official purpose? What principal of justice is served here? Why must the right of the individual be curtailed here?
The law, itself, is the crime here. Lawful does not equal just, or right, or moral. This law should be struck down. In the meantime, I applaud all who would violate it. Demanding that all obey bad, immoral laws, is too elevate principal above reality. First comes disobedience, THEN the law falls. At least, that’s how it worked with slavery.
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FM reply: I suggest that you not try this defense in court. In our society we all have to follow the laws, no matter your opinion of them.
From another great blogger:
FM: “Your first paragraph grossly misrepresents the nature of this ruling. In fact, your statement has almost no relevance to this ruling. I suggest you read Justice Stevens analysis, as you appear to be getting information from folks who either know little about it — or know much, and prefer to lie.”
Admittedly, I did not read Justice Stevens’ analysis. I didn’t read the healthcare bill either. Opinions being like you know what, this doesn’t keep me from forming one but I like to think I use the best sources available in the limited time I have available. Which is why I visit your blog every day and read most of what you write, as well as the articles you link to.
I was responding philosophically to the idea that this ruling was like permitting the shouting of “fire in a crowded theater”. I’m sure you are aware of the origins of this analogy in supreme court reasoning, being used by Justice Holmes in a decision upholding restrictions on speech related to draft resistance in WWI. Mr. Holmes more exact phrasing was that the constitution does not protect one “falsely” shouting fire in a crowded theater, the assumption being that those opposing the draft were doing so “falsely”.
And so, if we are going to traffic in this analogy, my point stands. Who is to be the arbiter of the truth or falsity of the one crying out? Why not just let them cry and let the “little people” like me sort it out for ourselves.
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FM reply: Thank you for verifying my guess that you have little understanding of this topic. I suspect you’re just reflecting back conservative propaganda. There are many website where that’s respected. This is not one of those. I suggest that you take a moment and read the excerpt of Justice Stevens’ opinion. That will give you a starting point from which to debate these complex issues.
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