Wednesday, January 27, 2010

Still A Bad Decision

Reader D.B. (not D.B. Cooper, unfortunately) asks:

I'd like to know which of the 3 positions you advocate:

1. this rule does not inhibit their speech, which they are entitled to and can pursue other ways (this position does not hold up)

2. their speech should be inhibited in this limited set of circumstances because of the danger to our democracy (again i ask how you can infringe on this right)

3. they have no right to free speech because they are not "persons" (I expect you are in favor of this position, but I wonder how this does not then allow Congress to restrict the speech of any group in any form or circumstance)


The outrage on campaign financing recently perpetrated by the United States Supreme Court has, obviously, not come from the people's representatives in the legislature but rather from the Court which is the highest authority in the land on the Constitution. Consequently, the 5-4 decision cannot be entirely refuted by reliance on #2, the danger to our democracy (notwithstanding how real it is). As distinguished leftist blogger Glenn Greenwald put it

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions -- warrantless eavesdropping, torture, unilateral Presidential programs -- can't be justified because of the allegedly good results they produce (Protecting us from the Terrorists)....

Except to the extent that some constitutional rights give way to so-called "compelling state interests," that the Court's decision will produce "bad results" is not really an argument.


It really is an argument; it's simply not the controlling argument. Still, it's hopeful that one of the two parties is sufficiently concerned about the impact of the Court's decision on national security. ABC News reports

"There's a big danger that the decision opens the door to foreign owned corporations indirectly spending millions of dollars to influence the outcome of U.S. elections through their American subsidiaries," Van Hollen, D.-Md., told ABC News. "The American people should be deeply concerned. This decision raises all sorts of questions...."

The problem, former Federal Election Commission Chairman Scott Thomas told ABC News, is that it's much tougher to determine whether foreign money is behind a political ad when the check is cut by a multi-national corporation.

"There are unfortunately lots of examples where foreign businesses or governments have tried to route money through U.S. subsidiaries and into party coffers," Thomas said. "Now we're permitting businesses to get involved directly in advocacy messaging. There will have to be a lot more scrutiny on the question of whether the money is coming from a foreign source, and whether it can be constrained."


It would be ironic if, in the absence of legislation ameliorating the impact of the Court's ruling, the government of mainland China, through a state-owned company, ended up having a greater affect on American politics than does the American middle class.

There hardly was a ban on corporate electioneering prior to the Citizens United decision, as Justice Stevens described in pages 23-28 of his opinion, pages 110-115 of the transcript. He explains

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 availthemselves of this option; during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.

He notes further

Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue.

A major role, indeed. Inhibited, hardly. Unless we are able to ignore television commercials completely, we all know the positions of the insurance industry, pharmaceutical industry, and nurses associations on health care. But are we aware what the individual across town believes on mandatory insurance, drug re-importation, or a public option? Not unless we happen to know that fellow across town, and even then we might not know his position. Nor would it matter, because he/she doesn't have the resources to convey that position to the general public.

For that matter, do we know the thoughts of Bill Gates, Warren Buffett, or Lawrence Ellison- three of the four wealthiest people in the world- regarding health care? If they were to utilize their "speech" and run ads advocating for or against health care, we at least would know whom they represent- themselves- rather than wondering whether they are representing executives, the Board of Directors, shareholders, or merely the CEO. Or in the words (p. 77/164) of the Justice,

It is an interesting question “who” is even speaking when a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to be the shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officersor directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporation must make the decision to place the ad, but the idea that these individuals are thereby fostering their self expression or cultivating their critical faculties is fanciful.It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least.

Consequently, a restriction on what the Court majority construes as "speech" does not imply a restriction on any other group or organization, as further explained by Stevens (p. 37/124):

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. 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. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign.”

Corporations, rather, have "special advantages- such as limited liability, perpetual life and favorable treatment of the accumulation and distribution of assets" (p. 47/134), which also distinguish them from other groups and organizations.

The danger presented by the expenditure of billions of dollars from corporate treasuries, overwhelming the public interest and will, does not justify targeting even a narrow class of expenditures as had been enshrined in law. But corporations are not, according to the Founders or common understanding, persons with consciences, beliefs, thoughts,or desires and there are at times a compelling governmental interest in restricting their activities while "leaving untouched" their contribution to "the broader public dialogue."

3 comments:

Dan said...

I love this assertion:
“there are at times a compelling governmental interest in restricting their activities while ‘leaving untouched’ their contribution to ‘the broader public dialogue.’ ”

You again argue that restricting corporations from advertising in no way inhibits speech because they can speak in other ways and individual members can speak on their own. By the logic of your argument, if the government prohibited me from writing on blogs, it wouldn’t be infringing on my rights because I could still write a book or go on the radio. Or even better, the government could prohibit an organization from publishing as long as the individuals within it could do so on their own.

You assert that:
“corporations are not, according to the Founders or common understanding, persons with consciences, beliefs, thoughts, or desires”

Organization also are not living entities with these characteristics. Nevertheless, you continue to attempt to artificially separate corporations from organizations on the basis of four claims:

1. Corporations are complex entities that consist of many diverse individuals with different interests, including shareholders, management, etc., and it is difficult to know “who” is speaking

2. Corporations have lots of money and a big advantage from it, thus endangering the democratic process

3. Corporations have interests separate from the “public interest and will”

4. Many corporations have foreign connections and strong ties to other nations

5. The Founders never intended the First amendment to apply to corporations

In response to each, point-by-point:

1. Yes, corporations have many different people (employees, shareholders, etc) who have different views and opinions, but so do organizations! Both do not have uniform thought and interest in the way one individual does. Both have structures in which leaders are chosen to guide policy based on broad goals. The choices they make may not always be in agreement with segments of the organization. I’m equally likely to be unaware or opposed to my company advertising for a candidate as I am to be unaware or opposed to an organization I’m a part of doing the same thing. There is no justification for singling out corporations according to this argument.

2. Yes, many corporations have large amounts of money, but so do many individuals and organizations. We live in a society with unequal resource distribution in which some gain through fortune or are more successful and become wealthy. If corporations endanger the democratic process because they have more influence, so do all groups or individuals who have more influence than the rest of us. You cannot separate out corporations (many of which do not have a ton of money to spare) by the logic of this argument. Instead, you should argue for an equalized system in which no individual or group can spend more than a specific amount on political advertising.

3. The “public interest” is one the most ambiguous and subjective concepts devised. Individuals have a range or interests and differ significantly on what is best for the nation. To assert that one group does not act in the public interest is to assert that there is one clear public interest and you know it. This in itself is a dubious claim. More importantly, you imply that other non-corporate groups and organization and individuals do act in the public interest. Rather than control involvement in the political process based on their good or bad interests as government officials perceive them, our system is designed so that all, even those with personal and entirely selfish interests, can pursue them and attempt to persuade others that they are good. As for the public will, it is revealed by who wins elections. Oil companies can spend billions supporting a candidate in favor of drilling or opposing one who is against it. If the public will is really to oppose drilling, they will vote for the candidate who opposes it.

Dan said...

see previous comment.

4. Many corporations do have strong foreign ties. Believe it or not, so do many organizations and individuals in the United States! We are not talking about letting corporations vote or fund candidates, we are talking about allowing them to voice support or opposition to candidates through advertising in an attempt to persuade the electorate. Shall we prohibit non-citizens and anyone with international connections from advertising? By the logic of your argument, we should do so.

5. When arguments go to the Founders, I'm always amused. The Founders were diverse in opinion and differed wildly on issues of government policy and structure; they were not a uniform group with one right opinion about each thing they passed. While it is helpful to look at each of the opinions and arguments of the Founders in order to understand their intentions in particular articles and amendments, we are ultimately left with the Constitution itself and the language of the law. The constitution was constructed through a deliberative process in which the Founders' had different hopes and intentions for particular articles, but consensus was needed, and each article and amendment of the Constitution is the final product of compromise between diverse interests and conflicting intentions.

This makes the claims you cite regarding the Founders and their belief that corporations were not guaranteed by free speech difficult to accept. The final language of the First amendment is broad and makes no specific mention of corporations as exempt, and it does not even say the rights apply only to "persons". Instead, it says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It is notoriously easy to assert the Founders believed one way. If the Founders were so uniformly united that free speech applied only to individuals, or if they specifically believed this shouldn't be a guarantee for corporations, one would expect more specific language saying so. I'd at least like to see some of the historical evidence that the majority of the Founders who voted for the amendment never intended it to be interpreted and applied more broadly than individual persons. I have so far avoided running to the Founders for my arguments, but since you did, I have to say that I believe the First amendment is broad because if the amendment had specifically only applied to individuals, rather than groups, it would not have passed. This leads me to believe a majority of the Founders would have supported free speech for groups of individuals, and I believe the First Amendment confirms this.
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I've tried to show that your attempt to distinguish corporations from organizations has no real basis under the law and logical argument, but is entirely reliant on the belief that corporations have selfish interests and money to spend, both of which you deem to be dangerous and bad for our nation's elections. While this may be true, the Constitution unfortunately (or rather, fortunately) does not allow you to distinguish certain groups based on their size, structure, wealth, or interests. You are only left with saying the first amendment applies to all groups and individuals, or it does not apply to any groups at all, but only to individuals.

Dan said...

I'm sure you don't want to go down that road and say government has the authority to limit the speech of groups like the ACLU, a Church Fellowship, the Red Cross, etc. But I'm also sure you will continue to assert that corporations are different from organizations based on their character and power, rather than any actual difference under the law, which does not draw distinctions based on the character or degree of resources belonging to a party. Thankfully, the Constitution allows for even unsavory groups with undue influence to speak without restrictions, and it lays out a high standard of rights that values the freedom to speak and act over what government officials deem to be the socially-ideal amount of speech and influence.

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