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Law Mon Jan 25 2010

Why the Citizens United Decision is Probably Right, and Good for the Left

News of the Supreme Court's decision, Citizens United v. Federal Election Commission was bone chilling. liberal talk radio and blogs lit up with fiery condemnations of a right-wing activist court determined to auction American democracy off to corporate power. It is likely that descriptions of the decision by a media caught in a cycle that could not have given them time to digest the 180+ pages of dense reasoning and citations contributed to the reflexive outrage. But a lay reading of the decision and the most relevant case law revealed that critics were not engaging the majority's arguments. Not only this, but much of the criticism was based on conjecture about political outcomes.

A few misconceptions about the decision arose quickly: first, that the decision was based on "corporate personhood", which it does not. Second, that the decision eliminated restrictions on direct campaign contributions. It did not: the court was looking at electioneering-style political speech (e.g., a television ad saying "Vote for Steve" or "against Heather"). Lastly, that the court was overturning some landmark Supreme Court decision or decisions: it did not. (And even if it had, so did Brown v. Board of Education overturn Plessy v. Ferguson.)

Ultimately, the court is saying that associations of individuals cannot be denied free speech rights because of their potential influence or who they are.

This may, finally, be the end of the so-called "electoral strategy", the approach to movement politics centered around influencing and effecting state and federal elections. That is among the first of several conclusions one can draw after reading the majority decision, authored by Justice Anthony Kennedy.

Upon release of the news, commentators, particularly liberals, have decried what they perceive as the death knell for democracy in the United States. While the decision, which essentially fully deregulates electioneering in the United States by declaring limits on corporate spending on elections unconstitutional, is trouble for any number of reasons, its legal reasoning seems sound and its long term impact could be beneficial for Left and libertarian movement politics.

There are a few things to assert from the get go: first, that the influence of corporate money on American politics and governance is already pervasive and pernicious. Second, that at least for the last generation, the Left has squandered billions of dollars in cash and manpower in efforts to influence the electoral process with precisely no advance of any of the core principles of the Left; and finally, that broad interpretations of the rights in the Bill of Rights conform to left-wing politics, so long as there is a sincere belief in the compatibility of left wing politics with the Constitution.

Gore Vidal said that there aren't two parties in the United States, but actually one party: the "property party". Unlike most democracies, the only competitive parties both consider preservation of property--particularly capital--as the primary concern of government. The two parties approach this differently: the Democrats have a loosely Keynesian attitude that some redistribution ultimately protects capitalism from complete socialization when concentration of wealth becomes intolerable to the great masses of people, or underconsumption causes massive unemployment. Republicans, and conservative Democrats, act based on a belief that wealth accrues to the most meritorious, and redistributing it is both immoral and irrational, because it interrupts a natural efficiency.

Now, those are the theories. In practice, Republicans and Democrats both have spent
the last three decades at least using the coercive powers established by the New Deal to protect industries, individuals, and institutions that buttress their organizational power. Any honest observer of American politics would be forced to admit that principled Keynesians and principled classical liberals and conservatives are few and far between in either party, that the party in power considers its actions in terms of how they will impact their industrial and institutional patrons.

So what about the decision itself? With the disclaimer that I'm obviously not a constitutional scholar, the majority decision seems fairly sound at least in its rationale.

Liberal legal critics have centered their criticisms on two pillars: first, that the Court violated tradition by considering a broader question than they were asked to; and second, that the result of the decision will ultimately be deleterious to democracy by crowding out the speech of individual citizens (and thus mitigate their ability to express their right of free speech).

On the former different legal scholars of different schools, as well as non-partisan academics, seem split as to whether the court bucked tradition. But "bucking tradition" is not acting unconstitutionally. Specifically, the argument is that the plaintiff, a right-wing advocacy group funded by individuals and corporations called Citizens United, was not asking the Court, in its brief, to determine whether spending regulations on "corporate forms" constituted a violation of free speech, but rather were alleging that one element of the McCain-Feingold bill, specifically 441b, needed an exception or exceptions. Citizens United distributed an anti-Hillary Clinton documentary, Hillary, through a cable-on-demand service, and argued that the McCain-Feingold restriction on "election communications" that were "publicly distributed" did not apply. First, because a single viewer had to request to see the film (though it was free) and second, that the singling out of "corporations" shouldn't apply to corporations created for advocacy and funded by individuals and corporations. Why, critics ask, did the Court bypass this request in the brief and look at regulations on corporations as a whole?

Kennedy's reasoning on this point is that any attempt to rule just on this "narrower" ground would end up having a "chilling effect" on the expression of speech because the creation of tests and rules here would require organizations and individuals to go through undue hardships (similar to getting a declaratory judgments before engaging in speech) that amount to a sort of "prior restraint" (though he does say that it would not fully constitute prior restraint). Thus the majority decided that the larger question had to be looked at.

On the second point of criticism, while it is very likely that at least in the short term the effect of unregulated corporate money in electioneering will have the effect of protecting incumbents, resolving a constitutional question such as the intention of the First Amendment is not the same as considering a bill in committee: conjecture on outcome cannot be a serious criteria. The Court needs to determine what the right to free speech actually entails, not just how specific and various deifnitions of the right will effect politics and government.We'll look at other potential problems for this line of reasoning later.

One interesting point: Citizens United tried to argue that their movie didn't constitute electioneering speech and shouldn't be subject to disclosure requirements. The Court didn't buy that, to keep it short.

As mentioned above, populist critics from both sides have singled out "corporate personhood" as the problem. But it isn't clear from Kennedy's opinion that the majority took the right of the corporation as a "person" as the heart of their reasoning. Rather, Kennedy's opinion stresses that the "corporate form" is one type of an association of individuals. Anybody can agree that in general terms it would be nonsensical to say the individual has a right to free political speech but associations of individuals do not. We take for granted in fact that associations of individuals are central to the democratic process. Both Planned Parenthood and the NRA are associations of individuals acting through a corporate form.

Kennedy runs through the arguments that for-profit corporations can uniquely be restricted from speech. He points out that the argument that corporations could use funds generated through economic activity unrelated to their political aims has dangerous implications. Individuals and organizations do this all the time. You earn money and give it to a candidate without consulting with your employer or customers as to how you're going to spend your money. He also considers the argument that corporations, because of the immensity of their resources, could distort the expression of speech in the marketplace of ideas. He dismisses this as well, saying that the identity of the speaker cannot be a criterion for the government to limit their speech. If amount of wealth could be a criterion for restrictions, many professionals would be considered as disproportionately able to impact speech compared to the median income; as a matter of fact, so would white males.

These arguments don't seem perfect. Kennedy says that the argument that a shareholder shouldn't be compelled to fund political speech they disagree with is "underinclusive"--it doesn't actually protect the shareholder, it just outlaws extremely specific types of speech (electioneering communications made within 30 to 60 days of an election). Also, what about corporations with only one shareholder (which constitutes a significant number of corporations)?

The majority's defense against the line of argument that corporate speech is sufficiently protected by their ability to create political action committees, or PACs is that the creation and maintenance of PACs constitute undue hardship as a prerequisite to speech. This I'm not sure about; the opinion doesn't detail any kind of test for undue hardship on these questions, Kennedy just details how hard it is to create and maintain a PAC (and also that it takes significant time, which is a facial restriction on speech). Getting government permission to create a PAC before engaging in speech does seem excessively burdensome.

The decision overturned most centrally a case called Austin v. Michigan Chamber of Commerce. The majority was specifically concerned that ultimately Austin's rationale in defense of McCain-Feingold would end up banning the political speech of media corporations. (The rationale in that decision is referred to as "anti-distortion", because it was based on the idea that corporations have disproportionate ability to distort the political conversation). Following from this, Kennedy argues, if we carve out an exception for media corporations, we are discriminating against corporations that don't have a media outlet in their corporate structure. GE owns NBC; why should GE get to influence political speech but not Progressive Insurance?

A potential counter-argument--and this probably requires a detailed knowledge of constitutional case law--is that the First Amendment separately protects the freedom of the press. However, you are still left with defining the press.

Even if we take that last part of the rationale out, the majority's arguments still seem fairly sound. How do you ban the speech of one type of corporate form--one type of association of individuals--without ennabling the restriction of more and more such associations to engage in political speech. Interestingly, much of the cited case law in this part of the opinion comes from ACLU-argued cases on behalf of labor organizations.

Part of the liberal panic is undoubtedly a reaction to right wing salivating. And certainly a significant portion of the right is excited only about the electoral benefit they know they will gain when big business can spend more freely on elections. The real test of their sincerity in the belief in free speech will come when the effect of such a broad ruling--that associations of individuals should enjoy the same rights as the individuals that compose the association--is applied to worker and community organizations. For example, the right has for years tried to place limits on how union members can be rebated dues spent on politics, or get out of paying agency fees (in "right to work" states, nobody can be compelled to pay "agency fees", essentially discounted dues; compulsory union membership is illegal everywhere). Libertarians are fond of crocodile tears on behalf of workers who pay an agency fee to a union treasury to pay for contract services that protect them and guarantee them due process and better wages and benefits. With this ruling, that argument is hard to square with the finding that shareholders are not losing any rights when their cash is spent on the corporation's political aims. Particularly when you consider the character of the vast majority of stock ownership--institutional investment and 401(k)s where the original contributors have little or no choice over where their money is invested, the rationale for right-to-work gets shakey.

The "cash is not speech" argument is also pretty easily disposed of (and I admit to holding to this in the past). While that expression is literally true, we would also have to admit that cash or its in-kind expression is pretty integral to the freedom of speech as applied in the political process. I think like me most people consider this only in terms of campaign contributions.The decision though isn't about campaign contributions, but electioneering generally. With both elections and other policy issues, the spending of money or use of manhours is necessary for the expression of speech. So while cash is not equivalent to speech, undue regulation of it is obviously a limit on speech, particularly if the government can use identity as a basis for restricting it. We wouldn't tolerate a law that protected your speech but forbade you from using any money to express it.

That's not the big picture, though, because I don't disagree that the impact in at least the short term will be that corporations will be able to disproportionately impact our elections. So let's look at it: liberals and the Left are always talking about how the general population agree with our positions--most recently for example on the public option. If you agree with those statements, why are they not reflected in government policy? I won't believe any answer you give beside "corporate lobbyists". The pernicious influence of high-powered industry lobbys have effectively thwarted basically every left-wing policy intiative in the last thirty plus years, and in fact reversed established policies. Yet the Left continues to spin its wheels in electoral muck, cycle after cycle being coopted by an election process that uses the money and energy of the Left and their petit liberal fellow travelers to win only to be faced with political fealty to organized capital after the swearings-in. For years, a debate has alternatively raged and peeped over the wisdom of this strategy. Perhaps now it can be laid to rest.

The New York Times in their editorial criticizing the opinion forecasted a return to the era of the robber barons. But the robber baron era shortly gave way to the greatest period of American progressive policy change and mass mobilization since the republic's inception: the Progressive Era and beginning around the time of the turn of the century bank panics and the First World War--and a daughter generation soon after--transformed American society into a modern society and built the ideological, cultural, and political infrastructure that created the progressive income tax, smashed monopolies, abolished child labor, radically widened the franchise and liberalized the Senate, regulated the banks, created workplace and consumer protections for the first time, guaranteed the right to organize a union, and culminated in the New Deal and trained the generation--men like Bayard Rustin and Martin Luther King, Jr.--that would give birth to the Civil Rights movement. All because the left focused on confronting corporate power and organized money directly through workplace actions, boycotts, and civil disobedience.

The sides are more clearly drawn now, and the enemy will be forced to reveal itself. Its high time the Left came to terms with this and turned thier attention organizing against corporate power itself. During his ascencion, Barack Obama skeptics were regularly eviscerated for pointing out that his small dollar "revolution" was basically a myth, that he was cozying up to Wall Street through the Hamilton Project, and that he was hardly less of a corporatist than Hillary Clinton, as his service with the education privatization heavy Annenberg Challenge, as one example, showed. National Democrats in particular have been able to create a sinister pastiche blending "people power" with corporate power. The result has been disappointmet and, worse, disaffection.

During the health care debate, the CEO of Whole Foods faced a potential customer revolt--as disorganized and unfocused as it was--due to his haughty "free market" ideological opposition to unviersal health care. Imagine if all the energy worthlessly poured into citizen lobbying for the public option had been focused on confronting the corporate power funding the insider game. The shift from a producer-focused to a consumer-focused policy environment means that the horizontal witholding of labor (e.g., strikes and occupations) is not enough: a horizontal witholding of consumption (boycotts) is needed, too. Faced with an electoral process hopelessly dominated by corporations, maybe we finally accept this reality and begin to organize towards those ends.

For years, corporate power has undermined the right to organize. Labor law in the United States is actually outright hostile towards the right to organize and workers organizations. So not only did labor diminish in size, but the shift to consumption meant that worker organizations wouldn't be enough, anyway. Broad-based action on both the consumption and production side is the only real option for true confrontation of corporate power.

Supposedly, the Left, because it is in principle anyway devoted to devolution of power to the working class, should have the quantity of people on their side. However, very little effort has been put into organizing along class lines a broad based movement. Instead, organizing has been relegated to inside identity groups and for ephemeral political and elective initiatives. As a result, the Left has no ability to mobilize people on a mass level. With the electoral process eliminated as a viable strategy, resources can finally be diverted to organizing at the community and workplace level. All this decision does is remind us that a small number of corporations--by no means corporations generally--have accumulated much too much power and wealth. Antipathy to large corporate entities is common across the working class, the intelligentsia, and even among many professionals and small business owners. Draw the line and watch who comes to the left side.

Look at discount retailers, like our friends from Bentonville, Arkanasas. They move into markets where they mostly cannibalize existing wealth. As much as 84% of their sales come from existing businesses. This means that consumers have a viable option should they choose to abstain from patronizing that business. Boycotts are notoriously difficult to organize--but they enjoy the absence of the hostile environment created by employers when workers try to organize. That type of broad-based organizing is not easy--but how many people, of all ages and from all regions, pour their time and money into an electoral process that is already, as we demonstrated above, fully dominated by corporate power? Shift those resources, and people power can confront corporate power head on.

The majority opinion doesn't preclude, at least from what I could discern, regulations such as outlawing political spending by entities that receive government money, or even full public financing of election campaigns. The most sinister corporate influence comes from industries that rely on government business: say what you will about Wall Street, but the defense industry profits from war. And the big investment banks, does not just pursue deregulation but also relies on government guarantees to pursue their risky ventures.

As for Libertarians--or those who consider themselves "free market" advocates--here's the perfect chance to call their bluff. The reality is that the largest and most influential corporations don't actually want to end the coercive power of the state to influence economic results. They benefit the most from that power, after all. Since government grown over the last half-century, large corporations have accrued immense wealth. Whether through trade protections, the coercive opening and enforcing of markets in the developing world, or the instigating of armed conflict, the mightiest corporations not only enjoy government activity in the market but require it. Will the new corporate money in the political process go to actually "Libertarian-izing" the economy? Or merely tilt the redistributive power of the state further towards themselves? And will Libertarians be able to maintain their ideological authority on the right in the face of those types of egregious violations of their principles? When Big Blue from Bentonville preserves the Medicaid system that subsidizes their razor thin profit margin, will they mewl about ugly corporate influence protecting socialized medicine? Or will they merely hew to the petit conservative line that defends the status quo and "might makes right"?

Libertarians will be as quickly offended by the activities of corporations in the political marketplace as the Left. Ending regulatory regimes may happen, but with unlimited influence over the immense power of federal government, what do you think will happen? Big business will hand it over? Will liberalize markets to allow for more competition? Already, the economy is becoming dominated by larger and larger institutions, and those institutions will do precisely nothing to reverse that trend. "Meritocracy" is of little interest to the guys at the top.

On another level, the greater inclusiveness of the right to free speech could pay dividends as well. Years of labor case law have priveleged private property over the free speech rights of workers who are subjected to hostility. Employees are also subject to bizarre "duty of loyalty" restrictions that limit their speech. Nowhere is the freedom of speech more restricted than in the workplace. If the march is toward a larger, more free definition of speech, that should--rationally anyway--chip away at the semi-coercive power of employers over their employees. Of course, the right wing argues that you can always choose to work somewhere else. Yet they are quick to forget this truism when they rationalize "right to work" laws by lamenting "compulsory" union dues.

Maybe this is cynical, but it's what we're left with. A constitutional amendment to revoke corporate personhood is probably a good idea, but I don't know that this decision would be seriously impacted by that. Kennedy didn't anywhere draw a clear line between the decision that created corporate personhood and the rationale for the decision. Skepticism coming from concern about the personalities on the court is fair enough--but there is still a swing vote (Kennedy) and the reasoning of this decision could end up being powerful for the "progressive interpretation" judges to use free speech rights to protect individuals against state and corporate power.

wingnut / January 25, 2010 6:05 AM

Hi

Which "LEFT" are you speaking about, author? You DO see the pyramid scheme symbol on the back of the USA one dollar bill, right? You DO see the servitude infestation in capitalism, right? And do you see the "pay up or lose your wellbeing" Chicago mob-like felony extortion widespread within capitalism? Do you see the "join or starve" felony extortion done to the 18 year olds... by this ugly competer's church called capitalism? See how forcing competer's religions onto 18 year olds... kills membership in the cooperator's church (Christianity/socialism)?? Do you understand that AmWay (American Way) (New World Order) got "the exclusive" (legal tender) on the TYPE of survival coupons (money) accepted in supply depots (stores) and leverages 18 year olds into the organization via that felony activity as well? (It puts AmWay-coupon slaving requirements called price tags... on all the survival goods). Do you understand how farmyard pyramids work... from your childhood?? Remember?? Upper 1/3 are "heads in the clouds" while the kids on the bottom ALWAYS GET HURT from the weight of the world's knees in their backs? Still with me? Do you see anything illegal, immoral, or just plain sick... in any of this pyramid scheme's activities?

Us American Christian socialists are still patiently awaiting the natural fall of the pyramid-o-servitude, or the busting of the free marketeers felony... by the USA Dept of Justice. Us Christians are VERY CLOSE to issuing a cease and desist order until the servitude and inequality goes away... which means it turns into a commune. Commune is a word we LOVE when used in the word "community"... but its one the caps HATE when used in the term "commune-ism". Go fig. PROGRAMMED!!

Do a Google IMAGE SEARCH for 'pyramid of capitalist' to see a full color picture made way back in 1911, when capitalism was first discovered to be a con/sham instigated by the Free Masons/Illuminati. Folks sure bought into the thing... hook, line, and sinker just the same. The caps didn't even check if a string was attached! Now THAT'S easy fishing, eh?

Time to level the felony pyramid scheme called capitalism. Abolish economies and ownershipism worldwide, and hurry. Economies just cause rat-racing, and rat-racing causes felony pyramiding. BUST IT, America! Look to the USA military supply/survival system... (and the USA public library system) for socialism and morals done right. Equal, owner-less, money-less, bill-less, timecard-less, and concerned with growth of value-criteria OTHER THAN money-value. Quit doing monetary discrimination immediately, and make it illegal. There are MANY measurement criteria of "value"... not just dollars. Try morals, efficiency, discrimination-levels, repairability, etc etc. Economies are cancerous tumors, and to cheer for their growth... is just insane. Profiting causes inflation, so if caps LIKE inflation, and if they LIKE a terrible time in afterlife when they meet the planet's ORIGINAL OWNER before caps tried to squat it all with ownershipism, then keep it up with the felony pyramiding. I dare you. While us Christians are finally bulldozing that pyramid scheme back to level, lets make servitude and "join or starve" (get a job or die) illegal in the USA, and lets level the architecture seen in USA courtrooms, too. Right now, USA courtrooms are church simulators or "fear chambers", by special design. Sick.

Isn't that back-of-the-dollar pyramid... a Columbian freemason symbol? And WHERE is the USA gov located? District of Columbia? (Not even part of the USA!) How much more blatant can ya get? The "Fed" runs a pyramid scheme called the free marketeers. If you're using the "federal reserve note" certificates, or using no-other-living-thing-on-the-planet entitles of ownership, you're bought into a servitude/slavery con/sham... called capitalism. Pyramiding 101.

Larry "Wingnut" Wendlandt
MaStars - Mothers Against Stuff That Ain't Right
(anti-capitalism-ists)
Bessemer MI USA

Jordan Brinkman / January 25, 2010 2:46 PM

It sounds to me like you are saying that Left politics hasn't been successful lately, so lets let the Right have a big barn-burning steam-rolling win and hopefully that should lead to a liberal backlash.

SORRY, the strategy of saying lets let the opposing team beat us this game really really badly so that will make us really want to win next game is one of the stupidest things I've ever heard. Just because it may or may not have happened once in the 1920s is irrelevant. Past is not always prologue and as you might notice things are a little different today.

That's the same black-propaganda mentality they pushed during W's term. Basically it goes "we're all so fucked anyway that we would need a revolution to really fix anything, so all the current issue losses aren't really relevant so there is no need to put up much of a fight."

And as to the lawyerly-arguments you put forth as to why this ruling is valid, of COURSE corporation-is-a-person was central to this ruling.

If the speaker is truly not important, than that would make gov't propaganda legal as well. Sounds great! I guess the president speaks for us all and is always right. After all how could we all be wrong?

W / January 25, 2010 2:56 PM

I think, rather, the point is that the ultimate problem is not that corporations are going to be able to skew the political process (they already very seriously do) - but that we have a system in the U.S. which allows corporations to be so powerful and wealthy in the first place to even be such a problem.

Limiting free speech because of the "ability" to be effective is, in fact, unconstitutional. Rather, we should be looking at the root of the problem: corporations and corporate power.

Ramsin / January 25, 2010 2:57 PM

Sorry that's what it sounds like, but that's not what I'm saying at all. What I'm saying is that when people decry this decision, their real complaint is just that corporations have too much power. If that's the problem, let's do something about that, not grant the state new powers to limit speech.

In any case, this isn't about "letting the right" do anything. It's about analyzing the reasoning of the case, and the reasoning seems...well, very reasonable.

And, no, the case was not built on "corporate personhood". It simply was not. The court was considering corporations to be associations of individuals, which they are. Remember, even advocacy organizatios--ACLU, Planned Parenthood--are "incorporated"--"corporate forms" of associations. Don't we intuitively understand that protecting an individual's free speech rights is fairly worthless if we can take away that right when they express it as a member of an association?

Ramsin / January 25, 2010 3:03 PM

oh, and also, government propaganda is legal, we just don't call it propaganda. What is illegal is "covert domestic propaganda". Of course the government propagandizes all the time about everything they do.

Jordan Brinkman / January 25, 2010 3:19 PM

Before this decision, corporations didn't have any power at all! Sure they have economic heft but they had highly restricted and regulated power in the political sphere. At least that's how it was supposed to be, and any power they achieved over politicians was known as "corruption".

Now, the walls between the separate economic and political spheres of power have been totally shattered, and thus corporations will be able to achieve power in both spheres. And what other type of power is there? None. Thus corporations will and have achieved supreme power, i.e. now we enter the world of 1984.

Michael Aylward / January 25, 2010 3:41 PM

Ramsin, this is a generally reasonable reaction to last week's SC decision, and I found the analysis helpful to launch my digestion of the ruling. However, your musing as to whether the additional power to influence electoral and legislative outcomes given to corporations could actually help progressive outcomes is -- though I hate to come right out of the gates with such flamethrower language -- beyond naive.

Your reasoning there seems to be that now that the cards are stacked even more against progressive solutions undiluted by corporate rigging, progressives should have no bones about re-aligning more of their resources to organizing against corporatocracy, instead of their (allegedly) failed attempts at protecting consumer and environmental welfare from the inside of political institutions. While I agree that corporate influence in politics is already disastrously pervasive -- which is obvious to anyone paying attention -- I see no reason to believe that progressives would gain from ceding the remainder of their inside men, in hopes that they'll essentially be able to use their dearth of power as a rallying cry to organize.

There is simply much more power concentrated in the making of rules than in the daily revenue or PR impacts of a boycott here or a demonstration on work-place rights there. Those tools are important -- indeed, they're essential for the civic health of our democracy. But they are simply no substitute for elected officials who will take a principled stand for consumer and environmental protections, and a not-quite-totally-plutocratic distribution of wealth.

In a related vein, you write:

"...resolving a constitutional question such as the intention of the First Amendment is not the same as considering a bill in committee: conjecture on outcome cannot be a serious criteria. The Court needs to determine what the right to free speech actually entails, not just how specific and various deifnitions of the right will effect politics and government." [italics added]

This is an apt statement of the judicial philosophies of the Court's conservative majority, but it is hardly a model for the work the constitution began: creating a stable, fair, and open society where justice and merit have a fighting chance against entrenched giants unburdened by civic or community concerns. I believe that there has not been enough attention paid to "how specific and various definitions of [rights] will affect politics and government." Laws have consequences.

Would considering those consequences in resolving constitutional questions make those resolutions less parsimonious? Yes, in some cases (like it should have, but didn't, in Citizens United). But I believe that a little parsimony in constitutional interpretation is a small price to pay for protecting some semblance of balance in the distribution of political power. That kind of power, especially in the hands of astronomically profitable corporations, already reinforces itself, because massive profits simply cannot be stopped from accruing influence. But extending corporations' ability to influence the rules under which their massive profits are made tilts the scales beyond their already precipitous imbalance.

If we're interested in avoiding the disproportionate influence of

Exxon Mobil,
Shell,
BP, and
Chevron,
of
Comcast,
Verizon,
AT&T, and
Time Warner,
of
Monsanto and
Archer Daniels Midland,
and a handful of other super-corporations,

that is, if we wish to retain their only sane basis, that they exist to improve the well-being of individuals', and not the other way around -- we must establish an explicit limit on their ability to influence the very rules that govern them. I take as a starting point that that is fundamentally important, and ask then how it can fit with the constitution and existing case law.

This may seem overly philosophical, but I believe it is a mistake to allow the conversation in Citizens United -- and in the broader question of corporations' rights -- to be restricted to legalistic skirmishes. With a question as fundamental -- and consequential -- as the 1st Amendment, I believe we must consider not only the intent of the constitution's authors, but also the kind of society we would like to create in our increasingly power-skewed world.

W / January 25, 2010 3:53 PM

"Before this decision, corporations didn't have any power at all! Sure they have economic heft but they had highly restricted and regulated power in the political sphere. At least that's how it was supposed to be, and any power they achieved over politicians was known as "corruption"."

But that's the point: the only real "block" they had to pretty much influencing elections any way they wanted was that they had to form a PAC to do it. The Supreme court is basically saying this is an "undue burden" to free speech, which is unconstitutional, and you cannot discriminate free speech against any corporation, whether for profit (like Exxon) or non profit (like the ACLU) because that's an illegal discriminator: just because someone (or a group of "someones") has a lot of money and can influence elections, doesn't mean they have no right to do so. We cannot place limits on speech because their ability to be effective is "too good" or "too powerful." The ultimate problem is that there is that consolidated power to begin with.

Jordan Brinkman / January 25, 2010 4:28 PM

W,

Rasmin says our only recourse is for people to rise up and argue Corporations shouldn't have so much power. You say Corporations have the legal right to use all their power.

So I guess there's no alternative huh? We all must submit ourselves to the vagaries of those with more money than us. And since people have way more money than us, in fact a tiny few have MOST of the money, what you're saying is we must accept an oligarchical dictatorship because that is Natural Law and to go against it is to go against God's Will, I guess.

Well let me remind you that the Magna Carta as the first stirrings of law protected the weak from the powerful. So presumably in this wild-west cowboy free-market of unbridled power, you expect the Law to protect the weak. Well who picks the judges? The Right has politicized the Supreme Court and that Court has now opened the door wide-open to politicize the rest of the nation, including new judges coming down the pipe.

The Supreme Court didn't just wipe away 100 years of Campaign Finance Law, they wiped out the last millenium of ALL LAW.

By taking morality out of politics and our government, who's going to care to enforce the rights of the poor in the law? A few people might but their voices will now be quickly washed away.

So it is inevitable the weak must succumb to the rich? No, that's what the Law and our system of government of the people, by the people, and for the people was for, and that is what has just been destroyed by the New Government® of the corporations, by the corporations, and for the corporations.

Unless you think for-profit corporations have the people's best interests at heart? Funny, I thought I learned in economics class business is propelled by the profit motive.

Oh right right I keep forgetting, the corporations ARE the people, War is Peace, Freedom is Slavery. . .

Ramsin / January 25, 2010 4:50 PM

Michael,
Your thoughtful post deserves a longer response, which I'll post separately. Suffice it to say right now, I don't think I was being naive at all.

Jordan, I would ask you to tone down the hysteria--all law? Really?--but instead, I will ask you how you would interpret the freedom of speech in a way that would shut corporations up--and currently, they spend hundreds of millions of dollars on lobbyists who already drown out working class voices--without shutting up every or most associations of individuals acting through an incorporated body.

Jordan Brinkman / January 25, 2010 5:33 PM

I absolutely think the ruling Thursday was so catastrophic as to eventually lead down the path to the destruction of all law not in the ruling corporation's interest. As helping the poor in any way is not usually in the interest of for-profit corporations I think it will eventually be destroyed yes.

It is very clear that money is shorthand for power in this world. Yes, that may not be the best but it is what we have in our Capitalist system. Because of the huge power of monetary interest over time and the difference in means between rich and poor, it is virtually guaranteed that money will concentrate at the top unless there is a counter-force (perhaps taxes).

But even with taxes, money gravitates to the top and away from the bottom. So unless we want to return to a system of serfs and feudal-lords, we need a way for the people to speak and have an alternative system of power that doesn't involve money. This was known as our Democracy (yes, money permeated into government but that was bad, not good!).

As you may know we have checks and balances in our system in government to prevent the escalation of unchecked power.

But money underpins power of all kinds, and so when you unleash this unchecked force upon our government, you are violating the intentions of our Founders to have checks and balances.

For-profit corporations should not have any power to speak except that approved by lawmakers. Sorry! To answer your question, it is the for-profit-ness that makes the difference. Why? You join an interest-group presumably because you have a view on that topic. The corporation speaks for you on that topic and is a proxy for you on that topic. But a person joins (buys shares in) a for-profit corporation because they want to make money. OK, they may like the "morals" of that company but let's be real. The profit-motive is very heavily enshrined into our system e.g. the Banking System and Wall Street. "Morality" in a company is nothing more than a PR stunt. We don't need companies to provide our morals, we can do that just fine. Lets be honest and acknowledge companies operate to maximize their profits, take that as a given, and act as is reasonable. Lets not pretend they are moral as they are doing increasingly in Europe (and now in the US as of Thursday). For-profit corporations need to be restricted and contained by the will of the people, and that is fully consistent with Law and morality, imo, except the piece of trash-law that says corporations are people.

It seems to me you have a libertarian slant, and these days during the term of George W., the Left and libertarians often had quite a bit in common in being against unchecked executive power. There is that old adage about how the political spectrum "wraps around" at the ends. Yes, this is true, but here's a secret, the difference between the far-left and the far-right is on the issue of money. Money still exists in a far-right world where corporations and governments meld. It does not exist in the far-left world where it is government-only. That is why in our more centrist world we have a money system, but it is kept in check so that it does not overcome us as Frankenstein overcame his maker.

Libertarians are nearly anarchists. They want to burn down all structures and concepts that could possibly put a check on liberty, which is pretty much everything. Oh except for money. For some reason they want to keep money around. And what is money except the de-facto heirarchical power system that is keeping people in bondage all over the world. If you want to open up true human freedom, you have to eradicate this concept as well.

W / January 25, 2010 5:39 PM

So a person with means doesn't have free speech?

What you're actually angry at is corporate power. And since there is no way to limit their electioneering (i.e., the only real difference, now, is they don't have to form PACs to do it) the only real answer to your entire rant above is to take corporate power away from them. That isn't done through limits on freedom of speech, which, for some reason or another, you don't seem to understand is POSSIBLE or LEGAL to do just because SOMEONE HAS A LOT OF MONEY TO DO IT WITH.

This is rather done through the workplace: instead of wealth by workers being generated to go upwards, it is generated to move horizontally instead.

No CEOs or MNCs will become billion-dollar entities.

Then you will have the end of corporate interests in government.

Not by setting a very odd precedent that says "if you have a lot of money you don't have freedom of speech."

Jordan Brinkman / January 25, 2010 5:56 PM

Look, a corporation is "a legal entity separate from the persons that form it."

That is the definition word-for-word I just pulled from wikipedia.

How can a corporation be a person if by definition a corporation is separate from the people who made it?

This is quite a leap we just took if we accept that definition and accept corporations as real. It is impossible-under-nature to separate conscience from a person. And so they had to create a virtual entity to do so.

A corporation is a tool to be used for an end. It is a magical device we created in order to separate people from the risks they take. Wow, that's pretty remarkable! It's impossible to do that in real-life, but in our money system made out of whole cloth, we can perform magic! You can get the reward without the risk!

And so if we agree we want so badly to do magic and conjure up a corporation, we also need to put some boundaries there. Boundary numero uno, this fantasy creation does not have a right to political speech. Easy.

Jordan Brinkman / January 25, 2010 6:04 PM

You're right, W, I am angry at corporate power. I don't think corporations should have this type of power.

I don't know how that led to you talking about rich people and their influence and speech.

The PAC was a way for corporations to speak politically, kind of. But there were two keys there, 1st the contributions still came from employees, not from the general treasury, and 2ndly there were LIMITS.

As far as rich individuals they are already restricted. You can only donate X amount of dollars for the primary and Y amount of dollars for the general election.

If you're arguing this restriction should be abolished too, that's even beyond what the court has done. That would also be very bad, but at this point it doesn't matter all that much; corporations were already the worst and biggest threat to our democracy. I heard they may wipe away the donations-directly-to-politicians restriction as well, God help us.

W / January 25, 2010 6:09 PM

...but "poorer" or 'non-profit' corporations WOULD have access to free speech, right?

Then you're discriminating solely on the basis that the wealthier ones would be more effective.

And you can't limit speech because of effectiveness.

What if there is a huge, wealthy multi-national which makes solar panels in a green factory, emits almost 0 pollution, has equal rights and fair wages and for its employees, and doesn't have any negative outputs. Should that "good" corporation not be allowed to run ads against the use of fossil fuels, child labor, pollution, or a political candidate which wants to regulate solar panel usage in order to increase profits for the oil company which paid for his campaign?

Again, square 1: you cannot limit speech just because an entity has a lot of money.

The problem is that we have huge corporations to begin with.

Regulating them and silencing them will never work until the power and wealth is transferred out of their hands and into ours.

Jordan Brinkman / January 25, 2010 6:18 PM

"Regulating them and silencing them will never work until the power and wealth is transferred out of their hands and into ours."

!!!! ????

First, even if some power (wealth) is transferred to us from them but if they are still richer, they can still out-compete us, unless we mandate no entity can have greater than X dollars... That's interesting but literally-speaking, a corporation doesn't usually have much money, it just generates money. So we would have to say no entity can exist that generates more than X amount of dollars. That could be tough for big enterprises and we would never see the economies of scale. Unless it's ok for the government to own such entities of course!

Secondly in response to your quotation, that's what we just did!!! Transferred the power out of our hands and into theirs.

In response to your solar company question: No, they should not be allowed to advocate.

The difference between for-profit and non-profit is their reason for existence, not how rich they are.

Jordan Brinkman / January 25, 2010 6:32 PM

Sorry that !!!! ???? was unnecessary. I'm a little worked up by this one as you can tell even though I'm not the only one (though just about).

W / January 25, 2010 6:33 PM

"Secondly in response to your quotation, that's what we just did!!! Transferred the power out of our hands and into theirs."

LOL. Really?

Look, you seem to believe we had some major grass roots power before this "devastating" Supreme Court decision which somehow gave "new electioneering powers" to corporations. None of this is actually true. Corporate lobbyists are why we don't have unions, or the public option in the healthcare bill, or a higher minimum wage, and so on and so forth. That's exactly the same now.

Again, the only answer is to have a system in which corporations never get this powerful again.

And someone will always have "more money" or "less money" than someone else. Again, not a legally justifiable reason to limit free speech.

W / January 25, 2010 6:35 PM

I should say, *why we don't have stronger unions and have and will face incredible pushback against things like the EFCA.

Jordan Brinkman / January 25, 2010 6:53 PM

You make a good point. We were indeed getting pretty dominated even before this ruling.

But the solution is in law. Law that puts up walls between the political and economic spheres that we had until a few days ago. If there is seepage then we need to make new laws or enforce the old ones better.

Your proposal to put an arbitrary limit on the size of entities seems dubious to me, although interesting.

Ramsin / January 25, 2010 6:58 PM

Michael,

I actually consider my analysis of the outcome to be somewhat cynical, not naive. What I find naive is the idea that despite the fact that by every measure, the working class has either been static or gone backward in economic power since the 1970s, we continue to pretend like electoral politics is a solution. Corporate power is expressed in the funding of campaigns, electioneering, and particularly through lobbying.

This isn't about "ceding" our inside men, but accepting that the reasoning of the definition was right, even if the outcome could end up being bad--but bad for whom? "Democrats"? What have Democrats done for the working class in the last forty years? Their alleged good intentions notwithstanding, the results are plain to see: productivity has gone up but wages have not; the labor movement is as weak as its been since before the Wagner Act; consumer protections have gone backward, not forward, since their creation; only a handful of areas have seen gains, and those are modest (some social issues and the environment).

What you're essentially asking the Court to do is make a ruling on whether profit-seeking is moral. When you try to exclude one type of association of individuals (in this case for-profit corporations) you need a reason for doing so besides conjecture as to what the result will be. If the basis is just that profit-seeking is inherently immoral and bad for democracy, you're going to have a hard time providing a legal rationale, and furthermore you'll find yourself in disagreement with most Americans, including much of the Left.

I think that you conceive boycotts of being a PR move shows just how far the Left has come from its roots in mass mobilization. Those movements weren't spontaneous, they were the result of hard organizing work. And boycotts and strikes are not symbolic or public relations maneuvers--they are devastating tactics against a corporate system that needs--needs--to have a constant flow of revenue. By organizing people to deny them those revenues either on the production or consumption side isn't just an embarrassing annoyance, it can destroy those institutions.

The arguments you are making are mirror images of the rationale used by business against organizations like the Mine Workers (UMW) and CIO. For years, John L. Lewis, president of the UMW was able to essentially dictate energy production and quotas because of the ability of the mine workers to shut down production and send the country fairly quickly into stasis. Truman had to call in the military in one instance to stop this.

The CIO was therefore an immensely powerful organization--because they were well organized. But they certainly weren't wealthier than Standard Oil or Carnegie Steel. Should their right of free speech been restricted because of their ability to impact the political conversation?

There is no doubt that the CIO was among the most politically powerful organizations in the country, but not because it got its people elected--because of its ability to dictate its will in the social and economic spheres.

We've got things backwards now. We want to get people elected in an atmosphere where corporate power holds all the cards, and expect the people we elect to then turn on that corporate power to create rules favorable to us. We've seen how that's worked.

Also, what about media corporations? If you incorporate to run a community newspaper, should you not be able to make editorial endorsements or have opinion columnists?

There doesn't seem to be a good way to limit the freedom of speech of a specific type of association of individuals without giving the government the power to turn on organizations it can deem "disproportionately" powerful according to some nebulous set of rules or onerous preconditions.

Jordan Brinkman / January 25, 2010 7:26 PM

hi Ramsin, I'd like to just quickly say the courts don't have to decide whether profit-making is moral. The point is that the corporation never decided either. It was born to make profit. It's not making a moral choice, and that's why it has no place in our electoral system.

Ramsin / January 25, 2010 7:27 PM

Jordan--just about your definition of a corporation. That is a distinction they are making between corporations and the other common types of businesses--partnerships and sole proprietorships for example. Most other associations of individuals--say the ACLU--are distinct from the individuals who make them up. Is there a single member of the ACLU now who was a member when it was founded? It's all different individuals, but the same organization.

Jordan Brinkman / January 25, 2010 7:39 PM

Sorry I didn't follow your point there can you clarify? But I do agree that corporations are different from other entities and that how they are defined is important. I always thought all for-profit companies were around to make money, regardless of who currently owns or operates them.

Jordan Brinkman / January 25, 2010 7:43 PM

But corporations, for-profit corporations seem special in that a special legal entity was created for them that seems to take the responsibility of even the owners out of the equation and turn it into a profit-seeking automaton.

Joey Joe Joe / January 26, 2010 2:28 PM

Very good article sir.

I do worry that you're vastly overestimating the populace's ability to react these days. The Right is 30% people that will swallow any crock provided by media figures that reflect their xenophobia, racism, and religious delusions. It yields a monolithic block in a way that the Left simply cannot hope to achieve.

The Left doesn't have race/religion/region to unite it in that way. We are fragmented and impossible to herd for long. After the Obama cattle drive, we're calving off, making us vulnerable to being eaten.

One thing I know about ignorant people, left or right, is they are best motivated by anger. The anger exists in this polarized nation, and the Right is better at focusing it. Granted they use techniques pioneered by Joe Goebbels, but the mob responds. In an environment where willful ignorance is the order of the day, negative ads can ignite the anger circuits in starved brains. It gets saps to show up to vote against their own economic interests. Guns, God, and Gays are enough to get a huge percentage of the general population to forget they have no job security, thus no health security.

I have cousins who are union members, yet despise Obama for a mixture of unforgivable blackness and "communism." These guys make bank because of unions, yet are manipulated into disdain for what passes for the good guys in the two party system.

Constitutional questions aside (I'm no attourney) I do see the moral hazard: These are the oreos to the milk of lobbying. In a reality where negative ads are a powerful tool, I fear the unlimited spending by companies that have a vested interest in resisting HRC, Cap and Trade, or pretty much anything that will solve a problem.

Further, in small state senate races, already likely to elect a jerk, a corporation with deep pockets can simply run so many negative ads against its opponent that a decisive portion of the people will believe he/she is ready to eat grilled bablies while rubbing their crotch on the bible. The small state seats will be the bargain basement for the big guys.

All that said, I really liked the article and am very impressed with the tenor of the discussion.

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