Friday, January 29, 2010

Upon Further Review, The Court Is Still Wrong

Reader D.B. continues the discussion of the Supreme Court's Citizens United decision with, given the weakness of the position, impressive effectiveness.

He writes

you again argue that restricting corporations from adverising 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 proghibited me from writing on blogs, it wouldn't be infringing on my rights becasue I couls still write a book or go on the radio.

I really don't know what government would prohibit you from writing on blogs- or writing a book or going on the radio. Perhaps the government of Hugo Chavez' in Venezuela, which is not relevant to this case. Oh, wait- yes it is, given that its government quashes dissent and owns corporations, and through its corporations now may be able to influence U.S. elections.

In either case, the law (BCRA) which is substantially eroded by this decision applied only to election-related advertising, not genuine issue advertising or, as Justice Stevens pointed out (pp. 25-26 of opinion, pp. 112-113 of transcript)

or to Internet, telephone, and print advocacy. Like numerous statutes, it exempts media companies’ news stories, commentaries, and editorials from its electioneering restrictions in recognition of the unique role played by theinstitutional press in sustaining public debate. It also allows corporations to spend unlimited sums on political communications with their executives and shareholders, to fund additional PAC activity through trade associations, to distribute voting guides and voting records, to underwrite voter registration and voter turnout activities, to host fundraising events for candidates within certain limits, and to publicly endorse candidates through a press release and press conferences.

D.B. may wish to compare himself to a corporation but unlike a corporation, he is not a thing. I know he is a person; I'm sure of it. I've seen him.

It is argued

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.

Corporations are not typical groups organized around a central principle, or set of principles. Stevens (p. 80/167) notes

Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfai[r]influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”

Compared to other organizations, then, corporations have extraordinarily deep pockets; engage in the political process not to inform or join the debate, but to enhance their profitability; and attempt to influence the electoral process in a manner often inconsistent with the political preferences of its shareholders, executives, customers, and others. Their advocacy, as Stevens notes, "may bear 'little or no correlation' to the ideas of natural persons or to any broader notion of the public good." And experience has shown "corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process" (p. 63/170).

It is claimed

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 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.

D.B. notes "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'" It does in fact read

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.

Note that it does not read "Congress shall make no law.... abridging the freedom of speech, to include corporate speech." It does not refer even to "abridging the freedom of speech, to include that of the press." The framers distinguished "speech" from the "press" and made no mention of corporate political activity. Consequently, it is reasonable, and almost unavoidable, to accept Justice Stevens' finding that

members of the founding generation had a cautious view of corporate power and a narrow view of corporate rights (not that they “despised” corporations,), and that they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would have lesser status than individual speech, that may well be because the contrary proposition—if not also the very notion of “corporate speech”—was inconceivable.

It is alleged

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.

That is an interesting argument. Of course, the hundreds of billions of dollars in electioneering expenditures will distort the debate and likely skew the election. Check out the campaign donations received by the candidates of the two major political parties in presidential elections the past 40 years. The correlation is stunning- no, not stunning, unsurprising to virtually everyone.

But more importantly: suppose candidate A supports more oil drilling and candidate B opposes it. And candidate A opposes the right to an abortion while candidate B supports it. And suppose you, supporting more oil drilling while virulently supporting the right to an abortion, decide therefore to vote for candidate B.

It's hardly hypothetical. What you have is a choice between John McCain as candidate A and Barack Obama as candidate B and, being an ardent proponent of the pro-choice position, you have decided to vote for Mr. Obama, despite agreeing more with the Republican's take on energy.

You have not only sacrificed your position on a vital national issue (energy) but behold! If President Obama's primary domestic initiative (health care reform) survives in either its House or Senate version, you have gotten legislation expanding the reach of the Hyde Amendment and therefore further restricting abortion. Kind of a two-fer, in reverse.

In the meantime, those of us who, having voted for Mr. Obama, accept your position (as some have enthusiastically done) say to the GOP: the public will is revealed by who wins elections. Step aside for health care reform (in the version we dictate to you); for cap-amd-trade; for granting student loans by the federal government rather than by banks; for ending tax cuts for the wealthy. And for reversing by legislation (if not by constitutional amendment) the Citizens United decision by the Supreme Court. Do what we tell you- the public will has been revealed by the election. Abandon all opposition, ye who enter the halls of Congress.

It is a daunting task, arguing in support of the Court's majority position in Citizens United v. Federal Election Commission. The case probably was not properly brought to the Court, as Justice Stevens argues beginning on page 4 (page 91of the transcript), which then has tossed aside the principle of stare decisis. The ruling cannot be justified easily without downplaying the extraordinary impact it might have on this nation's representative democracy and vibrant two-party system. And it cannot be justified at all without demonstrating that corporations are people, and that the electioneering of these individuals had been unacceptably hampered by existing law and its interpretation.

1 comment:

Dan Bausch said...


you rely almost entirely on Justice Steven's dissent, rather than any real constitutional justifications that address anything I brought up regarding the First amendment or a separation of corporations from organizations.

You argue that corporations are different from groups and organizations because:

"Corporations are not typical groups organized around a central principle, or set of principles."

This argument has little merit. Companies have central principles, including to make profit by providing services and goods, or even to contribute useful products or services with the hope of making society better. You just believe these principles dangerous and not warranted to complete First Amendment protection. Furthermore, there is no constitutional evidence regarding principles and groups or any difference with corporations. You simply made the principles distinction up and have applied it to again attempt to separate corporations from organizations without constitutional grounds, which is what the Supreme Court should look at alone.

You tire of me offering hypothetical examples regarding government powers and argue:

"the law (BCRA) which is substantially eroded by this decision applied only to election-related advertising, not genuine issue advertising"

The reason the Judges expanded the case is simple: if the government can legally prohibit corporations regarding election-related advertising, what prohibits them from expanding this further? If corporations are not protected by the First amendment, which you yourself content, then nothing stops the government from expanding this ban to any kind of advertising or speech from corporations. The minority would prefer to ignore this and accept that the government will only do this in cases of election-related advertising. I do not accept the government's word when the argument they make allows for broad bans on corporate advertising and speech.

You argue the First Amendment doesn't explicitly include corporations. Justice Steven's argument that the Founders had no concept of that is weak and it does not then lead to the conclusion that corporations should not be included.

As for the public will, I admit my argument was a bit shaky, but this reinforces my point about the inherent shakiness of the concept. There are many issues in an election and only a few choices of individuals. Even without corporations involved, I don't see how the public will is really met in elections according to your argument. By electing a candidate, the public will is only spoken regarding their choice of that person as leader, rather than alignment with every position he or she takes. Corporations advertising does not prevent this and it only alters it in so far as anyone who speaks or advertises affects opinion. You think they have no right to influence opinion.

You argue:

"[foreign] corporations now may be able to influence U.S. elections."

This was debunked. Check the NYTimes: They fact-checked this and determined:

"President Obama called for new legislation to prohibit foreign companies from taking advantage of the ruling to spend money to influence American elections. But he is too late; Congress passed the Foreign Agents Registration Act in 1996, which prohibits independent political commercials by foreign nationals or foreign companies."

This was not overturned in the Case.

You say my argument:
"cannot be justified at all without demonstrating that corporations are people"

Organizations are not people either. You have yet to prove why organizations are people and corporations are not, yet you argue the first amendment applies to them.

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